Judicial Diversion: The Contract or Agreement Should Provide for
Sealing
Since the pre-Judicial Diversion drug
courts that first began in the 1990s, jurisdictions across New York have varied
in the outcome of successful completion of a diversion program, some dismissing
the charge and sealing the arrest and prosecution records pursuant to CPL § 160.50,
some reducing the charge to a violation conviction, and sealing pursuant to CPL
§ 160.55, and others reducing the charge to a non-sealable, criminal conviction. In some jurisdictions, defendants have had
charges dismissed or reduced to a violation, but have been required to waive
sealing as a condition of participation in drug court. The 2009 DLRA not only established the felony
Judicial Diversion Program, but it also enacted CPL § 160.58, which allows for
the sealing of drug-related convictions.
As a whole, the 2009 DLRA is strong evidence that the Legislature intended
that successful participation in the Judicial Diversion program would result in
the sealing of arrest and prosecution records.
Recent decisions, however, reveal that this issue is not being addressed
sufficiently in the diversion contract or agreement prior to participation in the Judicial Diversion program, resulting
in inconsistent and, in some cases, detrimental sealing outcomes.
A brief overview of the three different
sealing statutes helps to provide the context for a full appreciation of the
issues and possible resolutions and strategies for defense counsel:
1)
CPL § 160.58 (conditional sealing): Enacted as part of the 2009 DLRA, this
statute allows a person to have a drug-related criminal conviction sealed as long as the person successfully completed the
Judicial Diversion program or another similar judicially sanctioned treatment
program and any sentence imposed. This
sealing results in records being conditionally
sealed – DCJS, law enforcement and court records are sealed, but the
defendant’s fingerprints are not destroyed and the records are automatically
unsealed if the defendant is subsequently arrested for another criminal
offense. Conditionally sealed convictions are included in the protections set
forth in Human Rights Law § 296(16), meaning that an employer or occupational
licensing agency cannot consider such convictions in making employment or
occupational licensing decisions. A
special benefit of conditional sealing that is not included in the other
sealing statutes is that in addition to sealing the incident conviction, a
defendant can also have up to three prior
misdemeanors drug convictions sealed.
2)
CPL § 160.55 (partial sealing): Individuals convicted of a non-criminal
offense (a violation), automatically get the benefit of partial sealing under
CPL § 160.55. Partial sealing means that
the defendant’s fingerprints are destroyed and DCJS and law enforcement records
are sealed, though court records are not.
Like conditional sealing, CPL § 160.55 sealing falls within Human Rights
Law § 296(16), offering the defendant protections against having the violation
conviction considered in the employment context. Unlike conditional sealing,
CPL § 160.55 sealing is permanent.
3)
CPL § 160.50 (full sealing): Arrest charges that result in a disposition
“favorable to the accused” get the benefit of full sealing under CPL §
160.50. Dispositions “favorable to the
accused” are defined in subsection (3) of CPL § 160.50, and include, for
example, ACDs or dismissals in the interests of justice. Full sealing provides for destruction of
fingerprints and the permanent sealing of DCJS, law enforcement, and court
records. Like CPL § 160.55 and CPL § 160.58
sealing, CPL § 160.50 sealing is included in Human Rights Law § 296(16),
offering the defendant protections in the employment context.
A series of cases out of New York County illustrates the inconsistent
results that occur when defense counsel fails to insist that the diversion contract
or agreement clearly identify the specific disposition and appropriate sealing
that will follow. Prior to the 2009
DLRA, the Manhattan Drug Court contract provided that successful completion
would result in a dismissal of the charges, though the defendant was required
to “waive” CPL § 160.50 sealing. After
enactment of the 2009 DLRA, the contract retained the old provisions for
dismissal of the charges and waiving of CPL § 160.50 sealing, though for
Judicial Diversion program participation, the contract was amended to include a
provision stating that the court would consider conditional sealing. Upon successful completion of Judicial Diversion,
however, defendants met strong opposition from the prosecution when they sought
to have the arrest and prosecution records conditionally sealed. The prosecution argued that conditional
sealing is available only where there is a conviction
and sentence, not when the charge has
been dismissed. The prosecution also
opposed CPL § 160.50 sealing, asserting that successful completion of Judicial
Diversion is not specifically listed in CPL § 160.50(3) as a disposition
“favorable to the accused.” At least two
superior court justices in New
York County
have agreed with the prosecution, and in unreported decisions have denied those
who successfully complete Judicial Diversion any kind of sealing,
notwithstanding language in the diversion contract that contemplates
sealing.
At least two other justices, however,
have honored the Judicial Diversion contract language and the legislative
intent to seal records after successful completion of the Judicial Diversion
program, although each justice relied upon a different sealing statute in dong
so. In Peoplev. Smith (Padro, J., New York
County), Justice Padro held that it was proper to conditionally seal the
defendant’s arrest and prosecution records after she successfully completed the
Judicial Diversion program and after the charge was dismissed. The court rejected the argument that CPL §
160.58 did not apply to dismissed arrests, reasoning that CPL § 160.58 must be “examined
within the context of the entire statutory scheme implemented by the
legislature and as a corollary statute to Article 216.” In Peoplev. JG, 2012 Slip Op 22136 (Weinberg, J., New York County), Justice Weinberg
disagreed with Justice Padro’s solution to the sealing dilemma, although not
the outcome of sealing, stating that where “the defendant has been allowed to
withdraw his guilty plea and the case has been dismissed without sentence
having ever been imposed, the conditional sealing provisions of CPL § 160.58,
literally, do not apply.” Justice Weinberg
went on to concisely summarize the dilemma as follows:
The
only option for the successful Judicial Diversion Program participant who has
had his case dismissed is to petition for sealing under the provisions of CPL §
160.50. This deprives that defendant of
the opportunity of having up to three prior eligible misdemeanor convictions sealed. It also deprives the People of the advantages
of a CPL § 160.58 conditional sealing as opposed to the more rigorous
restrictions the People face under CPL § 160.50 sealing. This anomaly should be addressed by the
legislature.
Though the diversion agreement did not provide for CPL §
160.50 sealing, Justice Weinberg ultimately concluded that since the defendant
had entered the program pursuant to a contract that included sealing as an
option, “essential fairness leaves the Court with no option except to consider
sealing under CPL § 160.50.”
Defense attorneys should take two
cautionary lessons from this decision.
First, the Judicial Diversion contract should include a sealing
provision that lawfully comports with the disposition provided for in the
contract. This means that until the
legislature addresses the anomaly Justice Weinberg has identified, defendants
who seek to benefit from having up to three prior drug misdemeanor convictions
sealed will likely have to agree to a disposition other than dismissal of the
charges in order to retain their eligibility for sealing pursuant to CPL §
160.58. Second, the importance of
negotiating a Judicial Diversion contract or agreement that thoughtfully
addresses the sealing dilemma cannot be overstated. While some defendants may prefer a contract
or agreement that provides for a reduction to a drug misdemeanor, thereby
ensuring that the defendant is eligible for conditional sealing of the
diversion program conviction and up
to three prior misdemeanors, others may prefer the more permanent nature of CPL
§ 160.50 sealing. For these defendants, the
contract or agreement should contemplate a dismissal in the interests of
justice or an ACD – both of which are specifically defined as dispositions
favorable to the accused. If an outright
dismissal is not possible, counsel should consider negotiating for a reduction
to a violation, and sealing pursuant to CPL § 160.55. What the best option is will depend on your
client’s particular circumstances and of course, what is realistic in your
particular jurisdiction.