Second and Fourth Departments Adopt the First Department’s Interpretation of the Ten Year “Look Back” in CPL § 440.046

On February 11, 2011 we posted a new decision alert for the First Department case of People v. Sosa,  ___ A.D.3d ___, 916 N.Y.S 72 which was the first Appellate Division to rule on the interpretation of CPL 440.46’s ten year “look back” to determine whether a prior felony would be an exclusion offense so as to preclude a motion for resentencing.  As you may recall, the First Department adopted the defendant’s interpretation, an interpretation that we had suggested was the proper one dating back to the enactment of this statute.

Now the Second Department in People v. Williams (2011 WL 747920) and the Fourth Department in People v. Hill (2011 WL 589646) have joined the First Department, concluding that the proper interpretation of the ten year “look back” requires that it be measured from the date of the motion for resentencing and not, as the prosecution has contended in cases around the state, from the date of the commission of the felony for which the defendant seeks resentencing.  In Hill the Fourth Department soundly rejected the prosecution’s proposed interpretation of the statute, concluding:

            “…the People’s suggested interpretation is wholly at odds

            with the wording of the statute and would require us to rewrite

            the statute.  This we cannot do.”

Although this issue would now seem to be settled, with even Peter Preiser abandoning the prosecutor’s suggested interpretation in his Practice Commentary, the prosecution continues to pursue its soundly rejected interpretation as it seeks leave to appeal to the Court of Appeals in Sosa.  In light of the fact that there is a consensus among the three Appellate Divisions that have considered this issue, we are hopeful that the Court of Appeals will deny leave.

CPL Article 216 Judicial Diversion Implementation Hampered by an Inability to Transfer Interim Probation Supervision

CPL Article 216 created Judicial Diversion, an initiative intended to give judges wide discretion over which substance addicted defendants should be offered the opportunity for treatment instead of incarceration.  Judges were also empowered to create a specific treatment plan for Diversion participants, including the option of requiring defendants to appear in court at any time to monitor progress in treatment.  The Diversion Court “shall retain jurisdiction of the defendant” during the period of the defendant’s participation in Diversion.  See CPL §216.05(8)

When Judicial Diversion was created, the legislature essentially handed the practical aspects of implementation over to the Unified Court System.  Court Administrative Rules were promulgated, effectively shunting Judicial Diversion cases into existing Drug Treatment Courts in many counties and creating Judicial Diversion parts in other counties.  Significantly, many existing Drug Treatment Courts, and some Diversion Courts rely heavily upon interim probation supervision to monitor their participants, although not required to do so.

CPL §390.30(6) sets out the mechanics and limitations of interim probation.  There is no explicit provision to transfer interim probation supervision between counties, not even for the purpose of monitoring compliance with court ordered treatment.  Compare this with CPL §410.80 that authorizes the transfer of probation supervision and jurisdiction to the county of residence of the defendant.  It is interesting to note, however, that CPL§390.30(6) does not expressly prohibit interim probation transfers, either.  Thus it appears that it is a question of statutory interpretation and legislative intent as to whether a Diversion Court, or any other Court, could order interim probation supervision to be transferred to the county where the defendant resides.  The Office of Probation and Correctional Alternatives has interpreted these statutes to prohibit transfer of interim probation, and at least some Courts have joined in that interpretation.

As a result of this restrictive interpretation, a significant problem has arisen in Judicial Diversion cases.  Defendants are often charged with crimes in counties in which they do not reside.  Eligible and appropriate defendants who seek judicially sanctioned drug treatment frequently have only one option: the existing treatment court in the charging county, which they may enter via either Drug Treatment Court or Judicial Diversion.  Yet if the defendant lives outside the county of the Drug Treatment Court, some charging courts believe they cannot order transfer of interim probation supervision outside the county.  

It is also our understanding that Probation Departments are not willing or able to cross county lines to supervise interim probation defendants.  The end result is that some Judges are simply not comfortable allowing out of county defendants into treatment, even if they reside in a contiguous county, because they cannot presently be supervised by interim probation. This result undermines the legislative intent of both CPL Article 216 and the entirety of the 2009 DLRA.

We believe that there are ways around the total exclusion of appropriate Judicial Diversion candidates because of this glitch in interim probation.  As stated above, we believe that the statutes leave open the possibility that a court can order the transfer of interim probation supervision in the first instance, which would serve to eliminate this problem entirely.

Absent such an intrepid court order, a court may still order interim probation supervision for a defendant regardless of where the defendant resides.  CPL §390.30(6) states that where the court determines that a defendant is eligible for a probation sentence, after consultation with the prosecutor (note: not the agreement or consent of the prosecutor) and upon the consent of the defendant, the defendant may be placed on interim probation.  There is nothing in the statute that requires the defendant reside in the same county as the court making the interim probation order. 

The Office of Probation and Correctional Alternatives frowns upon the transfer of Interim Probation supervision to the county of residence because of specific statutory authority, however OPCA cannot prevent the Court from issuing the interim probation order, and arguably should not be able to ignore such an order.  The statute requires “The defendant’s record of compliance shall be included in the presentence report…and the court must consider such record and information when pronouncing sentence.” CPL §390.30(6)(a) (emphasis added).  It would seem difficult for Probation to completely ignore the Court’s order of interim probation and still remain compliant with the statute, regardless of the location of the defendant’s residence.  

If the court is inclined to seek a way to offer an eligible defendant treatment via Diversion and construct supervision conditions without interim probation supervision, there is ample authority for creating such conditions in CPL §216.05(5).  The court can mandate conditions of treatment and court reporting as it sees fit.  There is no reason the court could not enlist the assistance of services in the outside county for the purpose of supervision.  Local reentry programs, Pre-Trial Release agencies, Alternative to Incarceration (ATI) providers or local treatment entities in the outside county can give updates on the client’s status.  In addition, the defendant can be required to appear in court as directed or could be ordered to report to the probation department in the Court’s jurisdiction on a regular basis.  With creativity, there is no reason to exclude potential Diversion participants simply because supervision under interim probation may not be available. 

Regardless of these alternative solutions, this issue is in need of a legislative fix to give the court the option of interim probation supervision for out-of-county defendants where necessary and prudent.  We would like to hear from any advocates who have run into this unfortunate problem.  Please comment below or contact us directly with your information.

Treatment Courts Should Enter Into Diversion Agreements That Cap the Potential Sentence.

CPL §216.05(5), (6), (8), (9)(c) and (10) all mention an “agreement” between the Court and the defendant.  This agreement can be on the record or in writing.  It shall include a specified period of treatment and MAY include periodic court appearances, urinalysis and a requirement to refrain from criminal behaviors.  The statute implies, but does not explicitly direct, that the agreement contain a description of what will occur if the defendant successfully completes Diversion or what sentence will be imposed if the defendant is unsuccessful in Diversion.   See CPL §216.05(9)(c): The Court must “when applicable proceed with the defendant’s sentencing in accordance with the agreement.”

Judges in some jurisdictions have taken the position that this language means the court need not cap the sentence for a Diversion participant.  These courts explicitly retain the right to sentence a participant to the “full range” or the “potential maximum” sentence if the defendant is terminated from Diversion and sentenced.

There are many reasons, both statutory and practical why Courts should include sentence caps in agreements:

A.  The language of the statute can be construed to strongly imply that there should be an agreement on sentence as well as on the conditions of participation in Diversion.  CPL §216.05(9)(c) refers to sentencing in “accordance with the agreement.”  Every other aspect of the statute regarding the agreement takes pains to give the Court options to tailor the terms of Diversion participation to the specific defendant based upon that individual defendant’s problems and needs of service.  There is every reason to believe that the legislature intended the Court to also individualize the sentence based upon the participant’s prior record, individual characteristics and the facts of the case before it.  Every case and every client is different.  The legislature encouraged Courts to make the specific Diversion plans, including the potential range of punishment, fit each individual client.

B.  There is much less incentive for potential participants to sign up for the challenge of Judicial Diversion if they face the potential maximum punishment for a failed attempt at treatment.  Generally in criminal cases defense counsel is able to negotiate a plea bargain that exchanges an admission of guilt for a sentence less than the maximum sentence, often much less.  Such a negotiated plea should provide a baseline for the client's sentencing exposure while participating in Diversion.  Many clients will be reluctant to participate in Diversion absent a negotiated cap.  Many defense lawyers will be reluctant to advise clients to participate in Diversion if the maximum sentence remains available to the treatment court simply because the client has opted to try treatment and failed. 

C.  Peter Preiser’s Commentary in McKinney’s CPL §216 indicates strong support for the idea of a sentence cap as part of the agreement to enter Diversion:

“And in consideration of the defendant’s agreement the court will make a commitment as to the ultimate disposition of the criminal charge if defendant abides by the conditions of the program and an alternative sentence if the defendant does not…”

           

            Preiser’s analysis of the statutory language clearly contemplates that the Court is obliged to articulate a certain sentence in consideration for the client agreeing to do the Diversion program.  Preiser also encourages that the conditions of this agreement be put in writing prior to any guilty plea.

D. There are studies that suggest defendants are more motivated by certainty of punishment rather than severity of punishment.  See “Deterrence in Criminal Justice-Evaluating Certainty vs. Severity of Punishment” (November 2010 Sentencing Project Report summarizing research on the limited value of severe sentences.)  There is little evidence to support the position that an uncertain sentencing threat increases compliance with the Diversion agreement.  Caps on sentence, along with a system of supervision that creates a certainty of detection for violations, are more effective in gaining compliance with supervision.

E.  Some Diversion courts have agreements in which a specific cap is articulated, but the participant is informed on the record that if the client is arrested for a new offense while in Diversion, or if a bench warrant has to be issued for the person at any point, the cap on sentence is removed and the full range of sentence becomes available.  Although there is still a question about whether a failure in treatment warrants an enhanced sentence which is more than what the defendant would have received at the beginning of the case, at least in those jurisdictions the client is somewhat protected from the maximum sentence.

If such contracts are not being used in your jurisdiction, Counsel can produce their own written contract, and include a provision for a cap on sentence.  Even if rejected this could at least open discussions about such a cap.  A sample contract from Monroe County can be found on the CCA website here.

NEW DECISION ALERT!! First Department Decides CPL §440.46 Ten-Year Lookback Case!

Drug Law Reform advocates have been awaiting a definitive ruling regarding the 10-year lookback provision of CPL §440.46(5)(a) which serves to exclude from resentencing people “previously convicted within the preceding ten years” of certain felony offenses. 

The issue has been: to what time frame does that language refer?  Is it the time between the previous potential exclusion conviction and the commission of the drug offense for which resentencing is sought, or the longer and more inclusive time period from the previous potential exclusion conviction to the filing of the motion for resentence?  After tremendous work by Barbara Zolot and the Center for Appellate Litigation, the First Department has decided it is the latter.

In People v. Sosa, Judge Marcy J. Kahn held in strong and sweeping language that the 10 year lookback period “runs back from the date of the resentencing application, and not from the date of the drug offense upon which the defendant seeks resentencing.”

The Court held that the plain language of the statute supports such interpretation.

“While the People seek to interpret that provision to mean the 10 years preceding the commission of the present felony, that interpretation strains the plain meaning of the statute.  The provision uses the simple phrase ‘preceding 10 years’, without reference to the date of commission of the present felony.  By its plain meaning, it would mean the 10 years preceding the resentencing application, since no other time period is set forth.”

The Court also considered the ameliorative purpose of the statute, as well as the protection of the public from violent drug offenders.

“Measuring the lookback period from the date of the application would permit drug offenders with violent pasts to eventually become eligible as those pasts fade into history, rather than making them permanently ineligible.  This interpretation would also be consistent with the statute’s public safety concerns, since it would still exclude persons with recent violent backgrounds.”

For good measure the Court threw in that “…the maxim expressio unius est exclusion alterius also supports the court’s determination.” 

Take that.

This decision will allow many people who might have been precluded from arguing for resentencing to at least get their day in court.  Hopefully the other Departments of the Appellate Division will eventually follow suit.  But for now, People v. Sosa stands as the law of the land in New York on the CPL §440.46(5)(a) 10 year lookback provision. [See Mountain View Coach Lines, Inc. v. Storms 102 A.D.2d 663, 476 N.Y.S.2d 918(2nd Dept. 1984)]

A New Third Department CPL §440.46 Class B Resentencing Case. Sort of.

On January 27, 2011 the Third Department decided People v. Marion Samuels.  Mr. Samuels had pleaded guilty in 2000 to a B felony on certain conditions.  Eventually he was sentenced to a lengthy indeterminate sentence.  Following the DLRA of 2009, Mr. Samuels applied for resentencing under CPL §440.46 in the Sullivan County Court.

Judge Labuda denied the application for resentence on January 6, 2010.  The Third Department reversed and remitted the matter back to County Court for redetermination of the defendant’s motion, but not for the reasons one might expect:

“We reverse. While County Court was entitled to deny

defendant's application if "substantial justice dictate[d]" such

a result (L 2004, ch 738, § 23; see CPL 440.46 [3]), it could not

base that denial upon misinformation or materially untrue

assumptions (see People v Naranjo, 89 NY2d 1047, 1049 [1997];

People v Braithwaite, 62 AD3d 1019, 1020-1021 [2009]). A court

is directed to consider a defendant's prison disciplinary history

in weighing his or her application for resentencing and, in this

case, defendant had incurred six disciplinary citations during

his current term of incarceration (see CPL 440.46 [3]). In its

decision, however, County Court overstated the severity of

several of them. While the People suggest that this

overstatement was a typographical error that did not affect

County Court's decision, we are not at liberty to make that

assumption. County Court's express mention of "three Tier III

hearings" in its decision "indicates that [it] probably

considered them to be material" (United States v Stein, 544 F2d

96, 102 [2d Cir 1976]; see Townsend v Burke, 334 US 736, 740

[1948]; People v Barnes, 60 AD3d 861, 863-864 [2009]; People v

Metellus, 46 AD3d 578, 579 [2007], lv denied 10 NY3d 814 [2008]).

As "material false assumptions as to any facts relevant to

sentencing . . . renders the entire sentencing procedure invalid

as a violation of due process," we must remit this matter for

County Court to redetermine defendant's motion (United States v

Malcolm, 432 F2d 809, 816 [2d Cir 1970]; see People v

Braithwaite, 62 AD3d at 1020-1021).”

Although the holding does not turn on issues specific to CPL §440.46, it stands as an excellent reminder to monitor the quality of the information relied upon by the sentencing court and to object to any “misinformation or materially untrue assumptions.”

Just to add to the confusion in this case, the Third Department also found it necessary to direct the lower Court to determine what exactly was the defendant’s actual original sentence: 12 ½ to 25 or the more unique sentence of 12 ½ to 20 years as it appears in the sentencing transcript.

Regardless of its reasons, the Third Department has ordered that Mr. Samuels be allowed to return to the Sullivan County Court for the court to reach the issue of whether "substantial justice dictates" that the application for resentence should be denied, this time without relying on any "material false assumptions." 

CPL §160.58 Sealing is Retroactive

It has come to our attention that there are a very small number of jurisdictions that are still debating the issue of whether Conditional Sealing under CPL §160.58 should be applied retroactively to cases that began and were completed prior to October 2009, the statute's effective date.  We at CCA believe there should be no debate.  CPL §160.58 was intended to be retroactive, the language of the statute indicates it is retroactive and many diverse sources and jurisdictions agree it should be applied retroactively.

The plain language of CPL §160.58(1) clearly contemplates retroactive eligibility for Conditional Sealing.  CPL §160.58(1) states, in part, that a person who has been convicted of certain offenses who “has successfully completed a judicial diversion program under article two hundred sixteen of this chapter [Judicial Diversion], or one of the programs heretofore known as drug treatment alternative to prison, or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses sealed pursuant to this section.” [emphasis supplied]

The Legislature could have explicitly stated that this statute would only apply prospectively.  It did not.  Rather, it explicitly included the clause “heretofore known as drug treatment alternative to prison,” which indicates a consideration of judicially sanctioned drug treatment programs that have been in existence for many years, including drug court and district attorney sponsored diversion programs.  This language indicates that the Legislature intended the statute to be retroactive.

On July 7, 2009, Michael Colodner of the Unified Court System circulated a memo to all Supreme Court Justices and County Court Judges Exercising Criminal Jurisdiction.  In that memo, Mr. Colodner set out the Unified Court System’s understanding of the 2009 DLRA.  Footnote 6 of that memo states that the Conditional Sealing statute applies retroactively:

Conditional sealing is available not only to cases arising under CPL Article 216, but also to cases diverted to “one of the programs heretofore known as drug treatment alternative to prison [D-tap] or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” (CPL 160.58(1)). Because the D-tap program started in 1990, any defendant who successfully completed a D-tap or similar program and who is otherwise eligible for conditional sealing may request sealing pursuant to CPL 160.58

Colodner July 7, 2009 memo, p. 4, footnote 6 [emphasis supplied]

The Unified Court System’s reading of the statute is endorsed by Judge Barry Kamins, who wrote an article describing the provisions of the 2009 DLRA for the New York State Bar Association, New York Criminal Law Newsletter in the Fall of 2009.  Judge Kamins, who is generally accepted as a reliable authority in the field of criminal law in New York State, affirmed the retroactive nature of CPL §160.58 by writing:

the sealing may be done in cases where the defendant has been convicted and sentenced after successfully completing a judicial diversion program, or a drug treatment program that was in existence prior to the judicial diversion program.  Thus this provision allows defendants who have completed drug treatment in existing drug treatment courts around the state to immediately file motions for conditional sealing.

New York Criminal Law Newsletter, Fall 2009, page 6 [emphasis supplied]

The Division of Criminal Justice Services (DCJS) also has indicated its belief that Conditional Sealing eligibility is retroactive.  DCJS has tracked implementation of the 2009 DLRA, including Conditional Sealing, and has provided quarterly briefings CCA staff members have attended.  These briefings reveal two important points. 

First, since October 2009 (the date of enactment of the Conditional Sealing statute), there have been several Conditional Sealing applications granted across the State.  Given that most Judicial Diversion, drug court, and district attorney sponsored  diversion programs take 18-24 months to complete, it is not conceivable that these Conditional Sealings were granted prospectively; that is, they must have been granted retroactively for completion of judicially sanctioned diversion programs that began (and may have been completed) prior to the effective date of Conditional Sealing statute. 

Second, at each of these briefings, Sean Byrnes, Acting Commissioner of DCJS, has evinced his belief that Conditional Sealing is retroactive, stating that his agency was prepared for even more Conditional Sealing applications to be granted in the months immediately following the effective date of Conditional Sealing.

It is worth noting that many of the Courts who have so far ordered Conditional Sealing pursuant to CPL §160.58 must have done so retroactively, as the Conditional Sealing occurred before clients would have had time to get through a judicially sanctioned treatment program by the time of the sealing. See DCJS Preliminary Impact of 2009 DLRA October 2010 report.  In addition, CCA has successfully represented clients who have obtained Conditional Sealing on old cases without drawing an objection from DAs or Courts about the retroactivity of CPL §160.58.  In one case, CCA successfully obtained Conditional Sealing of a 1989 conviction for which the person completed a judicially sanctioned treatment program much like DTAP and drug court.

Finally, it bears emphasizing that the plain language of the statute is consistent with the overall intent of the Legislature in enacting the 2009 DLRA.  As one court concisely stated, the 2009 DLRA designs “a more lenient, more therapeutic, judicial response to all but the most serious drug crimes.”  People v. Danton, 27 Misc.3d 638, 895 N.Y.S.2d 669 (N.Y. Sup. February 02, 2010)  It was the intent of the Legislature to expand access to treatment and more therapeutic sentencing options to as many criminal defendants as was reasonably possible.  To that end, it does not comport with the stated intent of the DLRA of 2009 to read CPL §160.58 in such a restrictive way as to prevent past successful participants in judicially sanctioned treatment the opportunity to argue to a Judge that some of their criminal convictions should be sealed from the public eye.

This debate should be brought to an end.

Eligibility-Neutral Offenses Should Not Exclude Diversion Participants

CPL §216.00(1) lists the charges that make a defendant eligible to be considered for Judicial Diversion.  It goes on to list certain conditions that can result in exclusion from Diversion, absent prosecutorial consent.  An issue has arisen when clients are charged in the same indictment with charges that have been specifically listed as eligible offenses, and at least one charge which is not listed as an eligible offense or an exclusion offense, herein referred to as “eligibility-neutral offenses”.  Some DAs and courts have opined that the presence of an eligibility-neutral offense in the charging document renders such defendant ineligible for Judicial Diversion.  Some trial Courts have ruled that the presence of eligibility-neutral offenses does not preclude participation in Diversion.  CCA’s website has links to the related cases we are aware of at this time:

Eligibility Neutral Cases Chart

Holding Eligibility Neutral Charges Do NOT Exclude

People v. Earl Jordan (Westchester Co., J Capeci, Aug. 24, 2010)

People v. Amir Kithcart (Onondaga Co., Judge Merrill, Jan 19, 2010)

Holding Eligibility Neutral Charges DO Exclude

People v. Sheffield, (NY Co., Judge Nunez, February 4, 2010)

People v. Jaen, (NY Co., Judge Ellen Coin, March 19, 2010)

A strong argument is that the overall plain reading of the statute does not indicate eligibility neutral offenses are a bar to participation.  The legislature saw fit to list the specific exclusions to participation in Diversion, and even those exclusions can be overcome with DA consent.  There is no reason to believe that the Legislature intended the sweeping, ameliorative reforms of the 2009 DLRA to be thwarted by the presence of neutral charges not specifically listed in CPL §216.00.   Such a finding would also allow the State to dictate who would be eligible for Diversion simply by ensuring eligibility-neutral offenses appear in the indictment.

See the CCA website @ Tools for Defense Attorneys > Defense of Drug Offense Cases > Eligibility Issues for a memo regarding eligibility neutral offenses.  This document was prepared by CCA in consultation with and a review of motions and arguments prepared by Roger Brazil, Office of the Public Defender, Monroe County, and Joanne M. Dwyer, New York, NY.  

Please alert us to any judicial decisions on this issue, written or oral, so we can continue to track the state of the law on Eligibility-Neutral Offenses.