Whether to Request Consideration for Participation in the Judicial Diversion Program: Making an Informed and Thoughtful Decision

The defendant’s decision to request consideration for participation in the Judicial Diversion Program (JDP) is an important one and should not be taken lightly.  Defense counsel should spend time preparing their clients to decide whether JDP is the right choice for them.   

As discussed more thoroughly in our April 12^th blog post, the defendant in People v. Bona, 92 AD3d 1242, requested the opportunity to participate in JDP.  Following an alcohol and substance abuse evaluation, the judge granted Mr. Bona’s request and a guilty plea was entered.  Before an order and agreement were entered, Mr. Bona changed his mind and asked that his plea be withdrawn and that his case be returned to County Court.  It is our understanding that he made this request after learning that the schedule and time commitment of JDP would make it impossible for him to continue working. 

Although JDP offers many advantages over alternative dispositions, it’s not for everyone.  In order to avoid a last minute change of heart or a half-hearted effort at participation, defense counsel should carefully review with his or her client exactly what is required of JDP participants.  Although the details of JDP vary from county to county, the program often requires weekly court appearances in addition to mandatory substance abuse treatment.  Since treatment is the major component of JDP, the agreement between the defendant and the Court required by CPL § 216.05(5) will undoubtedly include a clause requiring the defendant to complete a treatment program.  The length and modality of treatment varies ranging from outpatient treatment to long-term inpatient treatment.  Defendants may also be required to obtain a GED or complete other educational programs before they can complete JDP.  All requirements of JDP should be reviewed in advance of making a decision about participation. 

Defense counsel should also give the defendant a detailed explanation of the pros and cons of JDP.  One key benefit is the chance for the defendant to avoid incarceration.   Additionally, completion of JDP often results in a reduction or dismissal of the charge(s).  If the charge is not dismissed upon completion of JDP, when the sentence is complete, the defendant is eligible for Conditional Sealing under CPL § 160.58.  Before making the decision to request JDP, defendants should be confident that they are ready to engage in the required substance abuse treatment.  Defendants who begin JDP without the commitment and desire to seek treatment and address their substance abuse problems are less likely to succeed. 

Defense counsel should review with his or her client the advantages and disadvantages of a JDP sentence as compared to a likely sentence without entry into JDP.  Particular attention should be focused on the sentence provided in the JDP agreement should the program not be completed.  Despite conventional wisdom, that a defendant should not be sentenced more harshly for trying treatment and failing than for not trying at all, some JDP courts continue this illogical approach.  Local practice should be carefully reviewed and discussed before making an informed and thoughtful decision. 

Fourth Department Decision Reminds Practitioners of the Importance of Treatment Court Agreements

In People v. Bona,  92 AD3d 1242 , the Fourth Department declared that before Judicial Diversion can officially begin, terms and conditions must be agreed upon, and in accordance with CPL § 216.05(4), the judge must issue an order explicitly granting the request to participate in the Judicial Diversion Program.  The Bona decision emphasizes the importance of diversion agreements in clarifying consequences and expectations for both the defendant and the diversion court. 

In Bona, after arraignment on an indictment charging him with Criminal Possession of a Controlled Substance in the 5^th Degree, Mr. Bona asked to be referred to the Judicial Diversion Program (JDP) part for an alcohol and substance abuse evaluation.  The arraigning court did so, and at some point after, the JDP judge decided to offer Mr. Bona the opportunity to participate in JDP.  But Mr. Bona pleaded guilty without formally agreeing to the terms and conditions of JDP, as required by CPL § 216.05(5).  Additionally, the judge did not issue a formal order pursuant to CPL § 216.05(4). 

Two weeks later Mr. Bona returned to court to sign the treatment court contract.  At that time, he had changed his mind about participating in JDP and asked that his plea be withdrawn and his case be returned to County Court for further proceedings.  The Diversion Court denied Mr. Bona’s request and sentenced him.  Mr. Bona appealed arguing that he had not yet started JDP, and as such the JDP court was without jurisdiction to sentence him and should have returned the case to the arraigning court.    The Fourth Department agreed, holding that because there was no agreement regarding terms and conditions of JDP, and because there was no judicial order for diversion, Mr. Bona had not yet begun the program.  As such, his request to withdraw his plea should have been granted. 

The Fourth Department’s holding is a reminder of the importance of treatment court agreements under CPL Article 216.  Thus, counsel should carefully consider what terms and conditions the agreements should and should not contain.  Below are a few recommendations:

-                          Defendants should not be required to waive sealing.  On the contrary, the agreement could include the promise of sealing upon successful completion of Judicial Diversion.  Unsealed convictions or arrests erect barriers to employment, housing, and education.  Removing these barriers will promote the successful reintegration of the defendant thereby increasing public safety.

-                          Diversion agreements should cap the sentence imposed if the defendant fails to successfully complete the program.  Ideally, the cap should reflect the sentence that would be imposed by way of a plea agreement that would have been (or was) offered prior to entering JDP.  Judges should not punish defendants for attempting to engage in treatment but failing.  As an alternative, counsel could advocate for different sentencing caps depending on the reason for removal from JDP.  For example, the sentence for being removed from JDP for committing a new crime could be different from the sentence imposed if the defendant fails to comply with other terms of the agreement. 

-                          The agreement should set forth a specific disposition upon completion of JDP. 

-                          Finally, an agreement that promises a reduction to a specific misdemeanor upon completion of JDP should also give the judge the freedom to outright dismiss for those defendants who excel in the program.  Remember that the best outcome is to have the felony charge(s) reduced to a violation that can be sealed under CPL § 160.55, or dismissed and sealed under § 160.50. 

Many courts have been using the same treatment court contract for years, and it’s normal to expect resistance to any type of change.  Some judges are adverse to the idea of reducing or dismissing a charge following completion of treatment court.  With CPL § 216.05(10), judges now have an explicit endorsement of contracts which specify a variety of outcomes including reduction to a non-criminal offense or dismissal of the charges. See CPL § 216.05(10) (explicitly stating that among other possible dispositions upon successful completion of JDP, is the option of “allowing the defendant to withdraw his or her guilty plea and dismissing the indictment.”)  This is a powerful tool for attorneys to seek favorable dispositions for their clients.