All Four Departments Now Agree on the Ten Year "Look Back" Calculation for Resentencing

In People v. Carter, 2011 NY Slip Op 05821, the Third Department joined the three other Departments in their determination regarding the ten year “look back” calculation for resentencing applications.  The Court ruled that when determining whether the defendant has a prior felony that would be an exclusion offense as to preclude a motion for resentencing, the “look back” period is measured from when the defendant filed the motion for resentencing.  All four Departments have now soundly rejected the argument from prosecutors across New York State that the “look back” period begins at the time of the conviction for which the defendant seeks resentencing.  As discussed in this blog on March 10, 2011, the three previous cases were People v. Hill, 82 A.D.3d 77 (4^th Dept. 2011), People v. Williams, 82 Ad3d 796 (2^nd Dept. 2011) and People v. Sosa, 81 AD3d 464 (1^st Dept. 2011)

The Court of Appeals granted cert in People v. Sosa, the first of these cases to be decided.  The case is expected to be heard some time this fall.  In light of the unanimity of all four Departments, it is unlikely that the Court of Appeals will chart a contrary course. 

A Not So Happy 40th Anniversary of the "War on Drugs"

Recently, the New York Times published “Drug Bust”, an article written by Charles M. Blow discussing the 40^th anniversary of President Nixon’s declaration of war on drugs.  When this war began four decades ago, drug abuse was indeed a huge problem in the United States.  The fact that drug abuse continues to be such a huge problem is a clear indication of the failure of this policy.  While Nixon correctly identified a worthy cause, the strategy used to address this problem was all wrong.  Instead of attacking the problem at the source, by providing treatment to those with substance abuse problems, this misguided approach, “turn[ed] people who should have been patients into prisoners.” Blow also points out that this “overwhelming thirst for punishment” has hit African Americans particularly and disproportionately hard. 

Although the Report of the Global Commission on Drug Policy declared the war on drugs to be a failure, the battle rages on.  Over the past 40 years the number of drug related arrests has continued to increase.  Spending for national drug control has also continued to increase, totaling over 25 billion taxpayer dollars for this year.  It’s time to funnel our state and national resources into solutions that can actually work.  Proper treatment as an alternative to prison has proven to reduce crime, and also save money.  We must continue to push for more vibrant implementation of judicial diversion provided for in CPL § 216.  Treatment alternatives hold out the best hope for public safety and public health.  

In Two Brief But Strongly Worded Decisions, Court of Appeals Rejects Attempts to Limit Eligibility for Class B Resentencing

In two concise but strongly worded decisions issued yesterday, the Court of Appeals effectively put an end to attempts by district attorneys and courts across the state to limit the reach of resentencing eligibility for those still serving indeterminate sentences for a class B drug offense.  Specifically, in People v. Paulin, Pratts, and Phillips, the Court of Appeals held that “prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under” CPL § 440.46, the resentencing statute for class B drug offenders currently serving indeterminate sentences.  In a companion case, People v. Santiago, the Court of Appeals held that those who apply for resentencing while in prison, but are released prior to the application being decided, are eligible for resentencing despite their release.

As discussed below, these two decisions have potentially broad implications for anyone who is still in prison or under parole supervision after having received an indeterminate sentence for a class B drug offense.  It also has clear implications for those individuals who are in prison on a parole violation after having received an indeterminate sentence for a class A-I drug offense.   

First: An Overview of the Decisions

An Overview of People v. Paulin, Pratts and Phillips:

David Lance Paulin, Jesus Pratts and James Phillips were all convicted of class B drug offenses prior to 2005, and were therefore sentenced to indeterminate sentences under the harsh Rockefeller Drug Law sentencing scheme.  All three had previously been released from prison to parole supervision, but were reincarcerated after parole violations.  After the 2009 Drug Law Reform Act (2009 DLRA), which enacted CPL § 440.46, all three individuals, who were still in the custody of Department of Correctional Services (DOCS) on parole violations, applied to their respective sentencing courts to be re-sentenced to less harsh determinate sentences.  In all three cases, the sentencing courts denied the applications on the grounds that parole violators were not eligible to be re-sentenced.  Each appealed this decision.  Mr. Paulin’s and Mr. Pratts’ appeals went to the Appellate Division, First Department, which agreed with the lower courts and denied their appeals.  Mr. Phillips, whose appeal went to the Appellate Division, Second Department, fared much better.  In People v. Phillips, 82 A.D.3d 1011 (2^nd Dept. 2011), the Second Department held that there is nothing in CPL § 440.46 that renders parole violators ineligible for resentencing.  Mr. Paulin and Mr. Pratts sought leave to appeal to the Court of Appeals, and in Mr. Phillips’ case, the prosecution sought leave to appeal. The Court of Appeals granted these leave applications and consolidated the three cases.

In a unanimous decision, the Court of Appeals held that there is nothing in CPL § 440.46 that renders parole violators ineligible for resentencing.  The Court began by reviewing the statute itself, concluding that under the plain language of CPL § 440.46, Mr. Paulin and Mr. Pratts[1] were eligible for resentencing because they were both in DOCS’ custody after having been convicted of class B drug felonies that were committed prior to 2005, they were both serving indeterminate sentences with a maximum exceeding three years, and none of the exceptions listed in CPL § 440.46(5) applied to them.  Having concisely stated that the plain language of CPL § 440.46 supported Mr. Paulin’s and Mr. Pratts’ eligibility for resentencing, the Court next addressed the prosecution’s argument that the defendants were ineligible because permitting them to be resentenced would “have the absurd result of rewarding them for their parole violations.”  The Court swiftly rejected this argument, stating:

“We see no absurdity.  The purposes of the 2009 DLRA ... was to grant relief from what the Legislature perceived as the ‘inordinately harsh punishment for low-level non-violent drug offenders’ that the Rockefeller Drug laws required.” 

The Legislature enacted CPL § 440.46 with a focus on those who were in prison; it makes no difference whether they were in prison having never been paroled or in on a parole violation.  In either case, they are in prison, and thus, directly enduring the harsh impact of the Rockefeller Drug Laws.  The Court went on to address its prior decision in People v. Mills and Then, 11 N.Y.3d 527 (2008), which disallowed resentencing for class A-II drug offenders who were in prison on a parole violation, and which prosecutors and other courts had relied upon in limiting class B resentencing eligibility.  The Court of Appeals clearly and unequivocally held that the Mills and Then decision applies only in an A-II resentencing context, and is a function of the nuances of the A-II resentencing statute, which limits eligibility to those who are “more than twelve months from being an eligible inmate as that term is defined in” Correction Law § 851(2).  Said the Court:

“Reading the 2005 [DLRA] with the Correction Law definition, we held in Mills ‘that in order to qualify for rentencing under the 2005 DLRA, class A-II felony drug offenders must not be eligible for parole within 3 years of their resentecing applications’.  This holding is irrelevant to the present case.” 

People v. Paulin, Pratts, and Phillips at 6 (emphasis added). 

An Overview of People v. Santiago:

Having decided that parole violators are eligible for resentencing, the Court of Appeals in People v. Santiago addressed the issue of whether a person who was in DOCS’ custody at the time she submitted an application for resentencing, but released to parole prior to the application being decided, is still eligible for resentencing.  In Ms. Santiago’s case, both the original sentencing court and the First Department held that her post-application release to parole rendered her ineligible for re-sentencing. The Court of Appeals disagreed, noting that while CPL § 440.46 is targeted to those in prison, the statute only says that the defendant “must be in custody when he or she applies for re-sentencing; it does not require that custody continue until the application is denied.”  The Court went further, and in a refreshingly candid acknowledgment of the disingenuous strategizing which district attorneys and courts have used to limit the reach of the 2009 DLRA, stated that: “to read that requirement into the statute would have significant disadvantages: it could produce gamesmanship, and unnecessary arbitrary result, by leading the parties, and perhaps some judges, to try and accelerate or slow progress toward a decision in the expectation that parole release will cause the application to fail.”         

           

What are the implications of these two decisions?  How can advocates obtain relief for their clients who are still enduring the overly punitive nature of the Rockefeller Drug Laws?

  

Second: The Potentially Broad Implications for People Who Are Still in Prison or Under Parole Supervision After Receiving an Indeterminate Sentence for a Class B Drug Offense.

The Court of Appeals decision in People v. Paulin, Paulin and Phillips has clear implications for class B drug offenders serving an indeterminate sentence who are still in prison.  Even those who are in prison on a parole violation are clearly eligible for resentencing under CPL § 440.46.  Similarly, People v. Santiago could not be more clear in stating that a person is eligible for resentencing under CPL § 440.46, even is she is released from prison before her resentencing application is decided. 

Both cases, of course, have significant implications for people who were previously erroneously denied resentencing because of their status as a parole violator or because they were released from prison before their resentencing application was decided.  Defense attorneys and defender offices now have the obligation of reaching out to these individuals to ensure that they are able to successfully re-apply for resentencing.           

Is there any potential relief for those who have been released to parole supervision?  The answer is: Maybe.  As discussed in our April 22, 2011 blog post, the New York State Budget Bill passed in March, 2011 effectively merged the Department of Correctional Services (DOCS) and the Division of Parole into one agency called the Department of Corrections and Community Supervision (DOCCS). The merger resulted in amendments to several statutes, including CPL § 440.46 to provide class B resentencing eligibility to those “in the custody of the Department of Corrections and Community Supervision.”  As set forth in our previous blog, this change seems to mean that those class B drug offenders who committed their crimes prior to 2005 and are still serving an indeterminate sentence are eligible for resentencing even if out of prison and on parole supervision.

This argument was presented to the Court of Appeals in supplemental briefings in both Paulin, Pratts and Phillips and Santiago.  In both cases, the Court of Appeals declined to directly address the argument, and instead stated that given the specific facts before it,  the Court “need not decide whether a 2011 amendment changing ‘department of correctional services’ to ‘department of corrections and community supervision’ altered the scope of the 2009 DLRA.”  People v. Santiago, at n. 1; see also People v. Pratts, Paulin, and Phillips, at n. 1.

This means that this issue remains unresolved.  It is therefore incumbent upon defense lawyers and defender offices to develop a strategy for best capitalizing on the potential for broader resentencing eligibility of people serving an indeterminate sentence for a class B drug offense, even if serving it while under parole supervision.                  

Third: The Broad Implications for People Who Are Still in Prison After Being Sentenced to an Indeterminate Sentence for a Class A Drug Offense

Since the Court of Appeals decision in People v. Mills and Then, 11 N.Y.3d 527 (2008), there has been debate as to whether class A-I parole violators are eligible for resentencing.  In 2006, in a decision often mis-read as applying to class A-I drug offenders, a Westchester Supreme Court held that a defendant in prison on a parole violation was not eligible for resentencing.  See People v. Bagby, 11 Misc.3d 882 (Sup. Ct., Westchester Co., 2006).  However, recently, in People v. Caban, 84 AD.3d 828 (2^nd Dept. May, 2011) the Second Department held that “[n]othing in section 23 of the 2004 DLRA supports the Supreme Court’s conclusion that a person’s status as a parole violator renders a person ineligible to apply for resentencing in the first instance.”   

By making it abundantly clear that limitations to resentencing eligibility because of a defendant’s status as a parole violator are confined solely to the unique A-II resentencing legislation, the Court of Appeals in People v. Paulin, Pratts, and Phillips essentially re-affirms the Second Department decision in People v. Caban.  At this juncture, and given these two decisions, it is hard to imagine how any intellectually honest court could deny resentencing eligibility to a defendant serving an indeterminate sentence for a class A-I drug offense who is in prison on a parole violation. 

Finally:  Beyond Resentencing - Implications for Other 2009 DLRA Issues

The 2009 DLRA reforms included not only resentencing provisions, but also:

• enactment of CPL Article 216, which establishes a state-wide mechanism for Judicial Diversion for felony drug offenders;

• CPL § 160.58, which allows for the conditional sealing of drug convictions where a person completed a judicially sanctioned treatment program; and

• a host of amendments to DOCS programs, which allow for more judicial discretion and a more therapeutic response to drug-related crimes.           

As we have previously discussed in this blog, district attorneys across the State have worked hard at limiting the reach of the 2009 DLRA, most often by asking courts to limit eligibility, and often ignoring the plain language of the 2009 DLRA.  Because the 2009 DLRA was passed as part of the New York State Budget Bill, there was no accompanying bill jacket, and thus, no legislative memoranda to which to turn for a clear statement of legislative intent. 

The Court of Appeals decisions in People v. Paulin, Pratts and Phillips and People v. Santigao provide ample ammunition for defense lawyers to fend off arguments by district attorneys who seek to limit the reach of the 2009 DLRA.  In these companion decisions, the Court relied upon the statute’s plain language and refused to read into it non-existing limiting language.  But just as importantly, the Court of Appeals told litigants where to turn for a clear statement of legislative intent.  Specifically, in People v. Paulin, Pratts and Phillips, the Court relied upon press releases by Governor Paterson and the Assembly as the best indication of legislative intent.  Both press releases are available on CCA’s website, and both include language of legislative intent that supports a broad interpretation of the various provisions included in the 2009 DLRA. The two quotes below are just examples of how effective use of these press statements can help attorneys in advocating for their clients to obtain the therapeutic rather than punitive results promised in the 2009 DLRA: 

• The [2009 DLRA] reforms … eliminate the harsh sentences that the Rockefeller Drug Laws mandated by giving judges total authority to divert non-violent drug addicts to treatment and greatly expanding drug treatment programs. 

• The reform legislation enacted as part of the 2009 budget is based on the more enlightened and effective policy that drug addiction is a public health crisis and that drug treatment works.  The historic reform enacts a sensible, comprehensive and cost-effective approach for dealing with non-violent drug offenders and will ensure that drug abusers are able to access effective substance abuse treatment and counseling.        

It is hoped that the Court of Appeals companion decisions will go far in making the 2009 DLRA a reality.         

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[1]    The Court of Appeals held that Mr. Phillip’s appeal was moot because he had reached his maximum expiration date. 

SUPPORT FOR TREATMENT ALTERNATIVES TO INCARCERATION

An article recently published in The New England Journal of Medicine, “Medicine and the Epidemic of Incarceration in the United States,” highlights the unprecedented expansion of the criminal justice system of the past four decades attributing much of the increase in the prisoner census to the “War on Drugs” and “our country’s failure to treat addiction and mental illness as medical conditions.”

The article first points out that the United States incarcerates a higher percentage of its population than any other country.  In fact, with only 5% of the world’s population, the U.S. houses 25% of the world’s prisoners.  The country is clearly heading in the wrong direction on this issue when a middle aged black man is more likely to have spent time in prison, than to have graduated college.  Over the past 40 years, the number of people in U.S. prisons has increased by more than 600%. This is despite the fact that the U.S. population has increased by only 50%.  

From a public health perspective the authors of this article conclude that addressing the needs of this vulnerable population is “not only an ethical imperative, but also of crucial importance from both a fiscal and a public health perspective.”  The article effectively presents the view that as alternatives to incarceration, addiction and mental health treatment programs are more humane and cost-effective and ultimately better address the underlying problems.

The article certainly lends support for New York’s 2009 drug law reform that included Judicial Diversion and can be used to advocate for a more robust use of this alternative.  “Locking up millions of people for drug-related crimes has failed as a public-safety strategy and has harmed public safety in the communities to which these (formerly incarcerated) men and women return.”  The article calls upon the medical community to become advocates for alternatives to imprisonment and drug-policy reform.  They would certainly be a welcome ally in the fight for drug law reform implementation.

Preparing for a Successful Conditional Sealing Motion

Perhaps the most underutilized portion of the 2009 Rockefeller Drug Law reform, CPL § 160.58 allows for the conditional sealing of felony and misdemeanor offenses defined in Articles 220 and 221 of the Penal Law and specified offenses defined in §410.91(5).  In addition, a maximum of three prior misdemeanor PL §§ 220 and 221 convictions may be sealed.  Conditional Sealing provides a meaningful second chance for individuals who have proven commitment to their rehabilitation.  The process of Conditional Sealing under this section may be initiated sua sponte by the court, or much more likely, by the defendant’s motion. 

Before preparing a sealing motion, counsel should first determine whether the defendant is eligible for such relief.  CPL § 160.58 lists the following three types of programs that, upon completion, can render a defendant eligible for conditional sealing: 

(i)                 a judicial diversion program under article 216 of the Criminal Procedure Law;

(ii)               one of the programs heretofore known as drug treatment alternative to prison; or

(iii)             another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision” as (i) and (ii).

The first category is self explanatory, and defendants are clearly eligible if they have completed a Judicial Diversion program under CPL article § 216.  With regard to the second category, though the Legislature did not specifically define “programs heretofore known as drug treatment alternative to prison,” this phrase is generally understood as meaning traditional drug courts and District Attorney sponsored diversion programs, commonly called DTAP programs.  See e.g. Barry Kamins, NYSBA Criminal Law Newsletter, Fall 2009, at 6; Office of Court Administration, July 7, 2009 Memorandum to All Supreme Court Justices and County Court Judges Exercising Criminal Jurisdiction, at 3-4.  With the third category, it is clear that the Legislature intended to expand the reach of conditional sealing beyond traditional judicial diversion and drug courts, and in so doing, opened the door to argue for sealing cases where defendants have completed treatment as a court-ordered condition of probation or where they have completed Shock Incarceration and the Willard Drug Treatment Program.  All of these programs can be judicially ordered, constitute alternatives to a lengthy period of incarceration, and include substance abuse treatment and supervision.  The Onondaga County Court has already ruled that court-ordered treatment as a condition of probation constitutes “another judicially sanctioned drug treatment program.”    

Finally, a defendant is not eligible for Conditional Sealing until he or she has also completed any imposed sentence. 

Upon determining that the defendant is eligible for conditional sealing, the next steps require counsel to gather information and prepare the motion.  When collecting information and writing a Conditional Sealing motion, counsel should keep in mind the factors the statute requires the judge to consider in making a decision regarding an eligible defendant.  Specifically, CPL § 160.58(3) states that the judge “shall consider any relevant factor, including but not limited to” the following:

(i)                 the circumstances and seriousness of the offense or offenses that resulted in the conviction or convictions;

(ii)               the character of the defendant, including his or her completion of the judicially sanctioned treatment program as described in subdivision one of the section;

(iii)             the defendant’s criminal history; and

(iv)             the impact of sealing the defendant’s records upon his or her rehabilitation and his or her successful and productive reentry and reintegration into society, and on public safety.” 

We encourage counsel to obtain the defendant’s official criminal history.  This will confirm that the primary offense is an eligible offense, and will also allow counsel to identify prior misdemeanor offenses that may also qualify for conditional sealing.  Counsel should also obtain information evidencing the defendant’s successful completion of the sentence(s) for each conviction to be sealed.  If this information is not “reasonably available,” a sworn affidavit is an acceptable alternative.  It would seem that the affidavit may be sworn by the defendant, although this is not explicitly stated in the statute.  Additionally, counsel should consider informing the court of any legal barriers to the job or occupation that the defendant wishes to pursue.  But even more importantly, as a general matter, counsel should inform the court of recent research showing that 90-93% of employers now screen job applicants for criminal records.  See e.g.  Society for Human Resource Managers, Background Checking: Conducting Criminal Background Checks (Jan. 2010 ) (survey of its human resource manager members found that 92% regularly conduct criminal background checks on job applicants);  National Employment Law Project (NELP), 65 Million Need Not Apply: The Case for Reforming Criminal Background Checks  for Employment, (March 2011) (survey of postings on Craig's list and found that most employers regularly include in their on-line job postings a warning that people with a criminal record "need not apply.").  This information is useful in convincing the court that Conditional Sealing can go a long way in helping the defendant obtain stable, living-wage employment.  Furthermore, proof of any counseling programs completed by the defendant should be included.  Finally, any information showing the defendant in a positive light is helpful (e.g. character references, proof of community service, letters from counselors, evidence of job training).

The motion itself should specifically explain why the defendant is eligible for conditional sealing and why the defendant is a good candidate for this relief.  If the defendant has completed a judicial diversion program under CPL § 216, or a drug court program, convincing the judge of your client’s eligibility should not be difficult.  On the other hand, if your client has completed another “judicially sanctioned drug treatment program,” this task may be more challenging.  This language is rendered meaningless if courts limit Conditional Sealing eligibility to completion of only Judicial Diversion, drug court, or DTAP; clearly the Legislature included this language to expand the reach of Conditional Sealing.  CCA is happy to partner with lawyers who are willing to push for full implementation of this statute to include those who have completed judicially sanctioned programs such as judicially ordered Shock, Willard or judicially ordered treatment under the supervision of probation.  A positive bench decision and a memo of law regarding this issue can be found on CCA’s website, or by clicking on the links below:

Minutes from Bench Decision Granting Conditional Sealing Where Treatment Completed as a Condition of Probation

Memo of Law in Support of Conditional Sealing: Treatment as a Condition of Probation

            Finally, in this area of law that is still new, it is important that the early cases generated on the topic are positive.  Counsel should be careful in the selection of cases in which conditional sealing is requested.  Attorneys can learn from cases such as People v. Modesto, 32 Misc3d 287.  In Modesto, the Court denied the defendant’s motion for conditional sealing.  Although the defendant completed Shock as well as an inpatient treatment program while under parole supervision, neither of these programs were court ordered, and as such, not judicially sanctioned as § 160.58 requires.  This alone would have been reason enough to deny the application.  But the Court went further, and in what is nothing more than dicta, pointed out many perceived flaws with the application including the defendant’s failure to provide his criminal history, any specific proof of adverse effect upon employment opportunities, or the defendant’s failure to include a copy of the Certificate of Relief from Disabilities he claimed he had obtained.  None of this information is required by the statute, but it does impose a heavy burden on applicants.  We can only hope that other courts do not adopt the increased burden placed on Conditional Sealing applicants by the Judge in this decision.  Additionally, the court complained that no character evidence was submitted on behalf of the defendant other than proof that he had completed business training.  It is important to remember that CPL § 160.58(3) requires that the Judge consider the defendant’s character in making a conditional sealing decision.  As such, letters of recommendation may be important.  Overall, this case illustrates the importance of adequate preparation and of carefully analyzing a case before filing a motion for Conditional Sealing to determine whether defendant is or is not an eligible and appropriate candidate.  

Eligibility for 2009 DLRA Resentencing Expanded and Clarified by Amendment to CPL § 440.46

The most recent New York State Budget Bill was signed into law on March 31, 2011.  This law effectively merges the Department of Correctional Services (DOCS) and the Department of Parole into one agency called the Department of Corrections and Community Supervision (also referred to as the “Department”).  In addition to the merger, the bill amended CPL § 440.46 and in doing so expanded and clarified the scope of those eligible for resentencing.  The amendment became effective immediately, and can be found at L 2011, Ch. 62, Part C, Subpart B, § 79.  The law now reads as follows: 

“Any person in the custody of the department of [correctional services] CORRECTIONS AND COMMUNITY SUPERVISION convicted of a class B felony offense defined in article two hundred twenty of the penal law which was committed prior to January thirteenth, two thousand five, who is serving an indeterminate sentence with a maximum term of more than three years, may, except as provided in subdivision five of this section, upon notice to the appropriate district attorney, apply to be resentenced to a determinate sentence in accordance with sections 60.04 and 70.70 of the penal law in the court which imposed the sentence.”

When the amendment to CPL § 440.60 is read in conjunction with the amendment to Executive Law § 259-i(2)(b), it is clear that the amendments intend for those under community supervision to be considered in the custody of this new Department and eligible for resentencing.  Executive Law § 259-i(2)(b) reads as follows:

“Persons presumptively released, paroled, conditionally released or released to post-release supervision from an institution under the jurisdiction of the department [of correctional services or], the department of mental hygiene or THE OFFICE OF CHILDREN AND FAMILY SERVICES shall, while on presumptive release, parole, conditional release or post-release supervision be in the legal custody of the DEPARTMENT until expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of post release supervision, or return to imprisonment in the custody of the department, as the case may be.

The amendment is meaningful and the broader impact of CPL 440.46 is consistent with the overall theme of this section of the legislation.  Any argument that this merger was only for financial reasons is quelled by the legislative intent portion of the bill.  The legislative intent focuses on promoting successful and productive reentry and reintegration for both incarcerated individuals and individuals under community supervision. 

“In view of the commonality of purpose governing the fundamental missions of both agencies, a single new state agency should be created to oversee the combined responsibilities of both and, in effect, provide for a seamless network for the care, custody, treatment and supervision of a person from the day of sentence of state imprisonment commences, until the day such person is discharged from supervision in the community.” 

The amendment of CPL 440.64 impacts the eligibility of two categories of defendants.  The first group is those who filed for resentencing while still incarcerated, but were released to parole before resentencing occurred.  The amendment clarifies and confirms that these individuals are covered by the statute since they are now clearly in the custody of the newly created Department of Corrections and Community Supervision, even after their release onto parole (now “community supervision”).  The same is true for defendants who file for resentencing after being released from prison and placed on parole.

Furthermore, the amendment to Executive Law § 259-i(2)(b) clarifies the custodial status of those defendants who have been reincarcerated following a parole violation.  Some courts have reasoned that parole violators returned to prison were not in the custody of DOCS, and therefore not eligible for resentencing under 440.46.  That argument now falls by the wayside as this amendment rejects such reasoning.  Parole violators who are reincarcerated are now clearly in the custody of the new joint Department. 

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5/4/11 UPDATE:   Although Westlaw has not yet updated CPL 440.46, there is a red flag that directs you to budget bill where the changes can be seen.  The statute has however been updated on the New York Assembly's website and can be found at the following link: New York CPL 440.46.

Defendants Should be Thoroughly Prepared for their Alcohol and Substance Abuse Evaluation

An eligible defendant desirous of being considered for judicial diversion triggers that consideration by making a request for an alcohol and substance abuse evaluation to a Superior Court Judge.  Pursuant to CPL §216.05(1) the case should then be referred to either the Superior Court for drug treatment or any other part in Superior Court designated as a Drug Treatment Court by the Administrative Judge for judicial diversion (See New York Rules of the Chief Administrative Judge, § 143.2(c)).  In order for the evaluation to be prepared, the defendant will be interviewed by a court approved entity or licensed health care professional experienced in alcohol and substance abuse treatment, or an OASAS credentialed counselor.  The report generated as a result of this interview is an important factor in determining whether a defendant will be offered the option of judicial diversion. 

Recent decisions have highlighted the fact that inconsistent statements made by a defendant can substantially harm his or her chances of being approved.  In People v. Hombach, ___ N.Y.S.2d ___, 2011 WL 1136549 (N.Y.Co.Ct.), 2011 N.Y. Slip Op. 21112, the court specifically noted that,

“In reviewing the alcohol and substance abuse evaluation the defendant’s answers are inconsistent.”

The court went on to point out that the defendant desired no treatment according to one form he filled out, yet orally indicated that he was tired of using drugs and wanted to change, but could not do so on his own.  This was one factor used by the Court to deny this defendant’s request for judicial diversion. 

Inconsistencies drawn out during the alcohol and substance abuse evaluation were also pointed out by the court in People v. Jordan, 28 Misc.3d 708, 902 N.Y.S.2d 336. 

“Ms. Cardona told the Court that the defendant said he had not used cocaine or drank alcohol since July 2009.  This information is not contained in the report, but it contradicts at least in part a statement attributed to the defendant in that report indicating ‘he was using alcohol and drugs at the time of the current offense.’”

While these types of inconsistencies cannot be avoided altogether, proper preparation prior to the interview can minimize these instances.  This is certainly not to suggest that defense counsel tell their clients to lie.  On the contrary, counsel should instruct their clients to be forthright and honest.  Many inconsistencies are the result of confusion or simple error by the defendant.  The cases suggest however that this type of error can prove quite costly.  Counsel should provide defendants with a general idea of what types of questions they can expect to be asked including questions regarding the timing and duration of alcohol and drug use, and prior treatment received.  This will allow defendants to get their facts straight before they are questioned by the evaluator.  Additionally, defendants should be educated regarding the issues that the Judge will consider when deciding whether or not to offer them judicial diversion.  Through their responses at the evaluation, defendants arguably have the ability to impact the Judge’s decision regarding three of the five issues discussed in CPL § 216.05(3)(b).  As such, defendants should be made aware that they will only be offered judicial diversion if the judge finds the following:

1.  The defendant has a history of alcohol or substance abuse or dependence;

2.  such alcohol or substance abuse or dependence is a contributing factor to the defendant’s criminal behavior; and

3.  the defendant’s participation in judicial diversion could effectively address such abuse or dependence.

Defendants should be encouraged to not only admit but thoroughly discuss their problems with alcohol and substance abuse, and the negative impact these problems have had on their lives including how it has led to criminal behavior.  They must also demonstrate the desire and determination to address those problems in the hope that this will empower them to avoid future criminal activity. 

Another way for defense counsel to ensure the best possible alcohol and substance abuse evaluation for their clients is to first discuss with them the pros and cons of judicial diversion.  This discussion should remove any ambivalence the defendant may have about seeking judicial diversion.  It is this ambivalent or lesser committed defendant who is often screened out.  While the pros are more obvious, the cons are sometimes overlooked.  The benefits of judicial diversion for defendants include the avoidance of jail or prison, potential record sealing, and perhaps most importantly, the opportunity to properly address their alcohol or substance abuse problem so that they may lead a healthy and law abiding life.  Defendants must also consider the potential consequences if they fail to complete the program.  When this happens, many courts are sentencing defendants to a harsher sentence than otherwise available under a plea deal, effectively punishing defendants for trying treatment, but failing.  As such, entering into judicial diversion will result is a much longer prison sentence hanging over a defendant’s head.  Furthermore, defendants also must be aware of the time commitment required to complete the program.  This will have to be balanced with any other commitments that they may have including employment.  Judges look favorably upon defendants who understand the program and display confidence that they can fulfill their obligations and succeed.