Court of Appeals Rules that the "10 Year Look Back" is Measured from the Date the Motion for Resentencing is Filed

This week, the Court of Appeals released its decision in People v. Sosa, 2012 NY Slip Op 01101.  The Court agreed with the conclusion previously reached by all four Appellate Departments ruling that when determining whether a defendant has a prior felony that would be an “exclusion offense” as to preclude a motion for resentencing under CPL § 440.46, the “look back” period is measured from when the defendant filed the motion for resentencing.  The majority rejected the contention argued by prosecutors across the state that the look back is measured from the date that the felony for which resentencing is sought was committed. 

Defense attorneys handling resentencing cases should be alert to the fact that over the course of the next few years, as time accrues on the 10 year look back, some defendants will “age in” to eligibility, and be able to proceed on resentencing motions that are premature at this point.  

Sale of Drugs Should Not Result in Automatic Exclusion from Judicial Diversion

            It is beyond argument that a significant percentage of defendants arrested for drug sales are also drug users.  To the extent that they either have a history of alcohol or substance abuse or dependence they should, pursuant to Article 216, be afforded the opportunity to be evaluated and considered for treatment through Judicial Diversion.  Unfortunately, some judges across the state routinely deny evaluation and treatment to people charged with or suspected of the sale of drugs.  An example of this unauthorized use of an ad hoc judicial “rule” was highlighted in a December 23, 2011 article published in the BuffaloNews.com entitled “Drug Suspect Rejected for Diversion Program”.  The defendant, Joshua Meadows, was charged with possession of more than half an ounce of cocaine.  In an attempt to get his client drug treatment through Judicial Diversion, defense counsel explained that the defendant would, “buy and sell on a daily basis to support his habit.  It’s a tragic scenario, but it’s been real life for my client since the age of 12.”  The Assistant District Attorney, seeking to block drug treatment through Judicial Diversion argued that Mr. Meadows had sold drugs to undercover police several times prior to his arrest on the possession charge and had been unsuccessful in three previous efforts at drug treatment.  Judge Sara Sheldon Farkas denied treatment, concluding that “The judicial diversion program is meant for addicts, not dealers…” 

            This exclusion, based upon an illusory dealer/addict dichotomization, not uncommon among the gatekeepers of Judicial Diversion and drug courts, ignores two simple facts.  First, when the legislature enacted Judicial Diversion, it provided that individuals charged with a sale or possession with intent to sell would be eligible for treatment, including at least 9 specific drug offenses involving either a sale or intent to sell for which a defendant could be charged and be considered an “eligible defendant” for Judicial Diversion purposes.  Second, this exclusion ignores both the underlying purpose of the statute that has shifted away from punishment and towards treatment in order “[t]o significantly reduce drug-related crime by addressing substance abuse that often lies at the core of criminal behavior” and the legislature’s recognition, embodied in the statute, that “[e]xpanding the number of nonviolent drug offenders that can be court ordered to drug abuse treatment will help break the cycle of drug use and crime and make our streets, homes and communities safer” (see N.Y. Sponsors Memorandum, 2009 S.B. 2855/A.B. 6085).  If treatment for drug abuse and dependence will indeed make us safer, why would we not want to provide treatment to those who sell drugs because they suffer from drug dependence or abuse – and thereby eliminate their need to engage in such criminal conduct?

Providing treatment through Judicial Diversion for individuals who sell drugs but also have a history of substance abuse or dependence is sound policy.  First, doing so is consistent with the underlying statutory purpose and the legislative reasoning behind the Judicial Diversion Program. The legislation expanded the scope of non-incarcerative sentences for non-violent drug offenses, designing “a more lenient, more therapeutic, judicial response to all but the most serious drug crimes.”  People v. Danton, et al., 27 Misc.3d 638, 644 (Sup. Ct., N.Y. Co. 2010).  Second, the statute clearly indicates that defendants charged with the sale of drugs as a class B, C, D or E felony are eligible.  Third, if the individual has a history of drug abuse or dependence, the need and purpose for treatment is the same whether one possess drugs for use or for sale,  The dichotomy  between users and users who sell drugs to support their habit is a distinction without a difference.  Fourth, public safety is enhanced by providing treatment for drug abuse or dependence regardless of the nature of the drug offense – possession merely for use or possession for use and sale. 

Some critics of drug reform have argued that Judicial Diversion allows people who are “major dealers” to escape punishment. However, the statute itself resolves this argument by excluding such “big time” drug dealers from eligibility for Judicial Diversion.  See CPL § 216.00 (1) (excluding from Judicial Diversion eligibility anyone charged with possession of a large quantity of drugs as a Class A-I or A-I drug offense or anyone charged with the newly created offense of “Operating as a Major Trafficker”).

            Judicial Diversion is initiated by a defendant’s request for an alcohol and substance abuse evaluation (CPL § 216.05(1)).  Unfortunately, many eligible defendants charged with sales offenses encounter judges who flatly refuse to order the evaluation.  In these cases, counsel should point out that ordering the evaluation does not commit the judge to make an offer of Judicial Diversion to the defendant.  The evaluation simply provides the court with information necessary to make a well informed decision under CPL § 216.05(3)(b), including whether there is in fact a need for treatment.  In addition, the hearing that follows the evaluation gives the parties the opportunity to properly address the question of whether the defendant is appropriate for Judicial Diversion. 

Across New York State some judges have created their own unwritten rule barring anyone charged with the sale of drugs from even being considered for Judicial Diversion.  Such unwritten rules serve as the basis to summarily refuse a request for an evaluation with responses such as “this defendant has a ‘distribution problem,’ not a ‘use problem.’”  Judges should, however, consider the fact that most users of illegal drugs will at some point sell drugs, since selling drugs is often a consequence of using drugs.[1]   As an addiction grows, selling drugs helps finance larger purchases for personal use.  Some sellers actually receive drugs for themselves as payment for their services.[2]  It should come as no surprise that defendants arrested for selling drugs are almost as likely to be under the influence of drugs at the time of their arrest as those arrested for the possession of drugs.[3]  The conclusion is inescapable that many people selling drugs are also users who could benefit from the treatment offered through Judicial Diversion. 

            Defense counsel and treatment providers who confront the dichotomizing of “seller and user” on a daily basis, should be persistent and vigilant in pressing the eligibility issue.  Several themes should repeatedly be advanced: 1) public safety is increased by treating the drug dependence and history of abuse of all defendants, whether they are a user or a user/seller; 2) the human cost of drug abuse and dependence can effectively be reduced by treatment;  3) “the policy of incarceration and punishment of non-violent drug users ha[s] failed;”[4]  and 4) the cost of incarceration far outweighs the cost of treatment and is more effective in reducing recidivism.

            Eventually your persistent and well-grounded arguments will bear fruit, and we all will benefit from a more effective implementation of the 2009 Drug Law Reforms.

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[1] Avelardo Valdez and Stephen J. Sifaneck. 2004.“Getting High and Getting By”: Dimensions of Drug Selling Behaviors Among American Mexican Gang Members in South Texas.

[2] Hunt, Dana E. 1990. “Drugs and Consensual Crimes: Drug Dealing and Prostitution” Crime and Justice: An Annual Review of Research, vol. 13: Drugs and Crime.

[3] Christopher J. Mumola. 1977. Bureau of Justice Statistics Special report: Substance Abuse and treatment, state and Federal Prisoners, 1977.

[4]  People v. Jordan, 29 Misc.3d 619 (Westchester Co. Ct. 2010).

Termination from Drug Court: What Process is Due?

The defendant in People v. Peck, 2011 NY Slip Op 09376, was a drug court participant whose contract included a provision that he was not to be arrested while enrolled in the program.  He entered drug court with the agreement that his class D felony would be reduced to a misdemeanor with the sentence of a conditional discharge upon successful completion of the program.  Failure to complete the program would result in a sentence of 1-3 years in state prison.  Nearly one year later, while still participating in the program, Mr. Peck was arrested and charged with two misdemeanor offenses.  He denied any involvement in the crimes for which he was charged.  Without conducting any sort of inquiry into the legitimacy of the arrest, the acting county court judge sentenced Peck to state prison.  Relying on precedent established in People v. Fiammegta, 14 NY3d 90,  the Fourth Department ruled that, “the court erred in failing to ‘carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis’ for defendant’s termination from the drug treatment court program.”  The court also cited People v. Outley, 80 NY2d at 713, indicating that before removing a defendant from drug court, it must be determined whether the new arrest is “without foundation.”

Peck’s drug court contract and participation pre-dated the enactment of article 216.  As a result, the limited due process requirements of Fiammegta and Outley applied.  However, article 216 requires a higher level of due process when a court considers whether a defendant violated a condition of his or her release under the judicial diversion program.  In such case the statutute provides for a “summary hearing consistent with due process and sufficient to satisfy the court that the defendant has in fact violated the condition. (CPL § 216.05(9)(b)).

One might argue that this higher standard should apply, not only to article 216 cases, but to all DTAP and non-judicial diversion drug court cases, relying upon the legislative intent expressed in article 216 that a higher level of judicial inquiry is required for determining violation of program conditions in all treatment court types of cases.  

Although not mentioned in the decision, it should be noted that both charges resulting from this defendant’s arrest while he was a participant in drug court were subsequently dismissed.  They were, as Peck had tried to explain to the Judge, simply unfounded.  Sadly, Peck had already served out his prison term.  The only recourse left was for the Appellate Division to remit the case to county court to determine whether the defendant should be allowed to withdraw his plea to a felony and plead guilty to a misdemeanor.

One further lesson might be extracted from Peck.  An arrest, of course, is nothing more than an accusation.  Anyone can be arrested, sometimes without any cause whatsoever.  It is preposterous that a defendant whould be removed from much needed treatment, merely because of an arrest.   Such a condition has no place in a treatment court contract. Counsel should object to any contract that contains such a provision.  Instead, counsel should request that the contract be amdended to include the same language that is suggested in CPL § 216.05(5) -  “refrain from engaging in criminal behavior”.  

The First Department Strengthens the Presumption in Favor of Resentencing in Class B Felony Drug Cases

A motion for resentencing made pursuant to CPL § 440.46 shall be granted unless “substantial justice” dictates otherwise (see Section 23 of Chapter 738 of the Laws of 2004).  As such, there is a strong presumption in favor of resentencing.  With their recent decision in People v. Cephas, 90 AD3d 557, the First Department built upon their decision in People v. Milton and reinforced this presumption.  In Milton, the court ruled that failure to complete a drug treatment program was not a sufficient reason to deny a resentencing motion, citing to the 2009 DLRA’s purpose of ameliorating harsh sentences.  The court’s decision in Cephas supports the notion that a motion for resentencing should not be denied based only on the defendant’s failures or bad acts which occurred before the offense for which resentencing is sought was ever committed. 

The county court judge denied the defendant’s motion for resentencing citing his long criminal history and the fact that he had relapsed into drugs and crime despite completing substance abuse programs during prior incarcerations.  In a unanimous reversal of the lower court’s decision, the First Department pointed to the defendant’s achievements following his B felony drug conviction including the completion of substance abuse programs, favorable evaluations from corrections officials, and his acceptance into a two-year residential treatment program indicating that these factors outweighed the defendant’s criminal history.  This decision reinforces the argument that the granting of resentencing for B felony offenders serving indeterminate sentences should be the norm, not the exception.  It should prove helpful to attorneys filing § 440.46 motions for clients with extensive criminal histories. 

Additional court decisions on the issue of “substantial justice” in CPL § 440.46 resentencing cases can be found on our website at: http://www.communityalternatives.org/publications/substantialJustice.html

Treatment Court Judges Should Embrace the Use of Medically Assisted Treatment (MAT) in their Courts

In New York City in 2010, nearly one-quarter, or 21.8% of defendants admitted to treatment court identified heroin (an opiate) as their drug of choice.  For the rest of New York, that number is only slightly lower at 17.9%.  The good news for these individuals is that there are medications that have been proven to be very effective at treating opioid addiction.  The bad news is that many treatment court judges refuse to utilize this proven means of treatment, and even go so far as to deny treatment court admission to  defendants who are currently being treated with one of these medications.  The Legal Action Center recently released an article titled, “Legality of Denying Access to Medication Assisted Treatmentin the Criminal Justice System.”  The article goes beyond failure to use medication assisted treatment (MAT) in treatment court, indicating that MAT should be available to individuals at all stages of the criminal justice system, including prison.  The Legal Action Center posits that to deny opiate-addicted individuals MAT violates their 8^th Amendment rights (prohibiting cruel and unusual punishment) and their 14^th Amendment rights (guaranteeing due process).  While these legal arguments may have to be utilized in the long-term to compel criminal justice actors to use MAT, our hope is that the failure to use it in treatment court can be reversed in the short-term by educating judges as to the efficacy of these medications, how they work, and how the benefits of MAT outweigh the risks. 

The two medications commonly administered to treat those suffering from an opioid addiction are methadone and buprenorphine (often sold under the trade names Subutex and Suboxone).  These medications normalize brain chemistry, block the euphoric effects of opioids, and relieve physiological cravings. The use of these medications has been studied extensively, and over 300 published studies confirm MAT is both safe and clinically effective for opioid dependence.  Using MAT to safely and effectively treat heroin addiction not only reduces drug arrests and crimes related to heroin abuse, but also reduces the spread of diseases and viruses such as HIV, which are often acquired through the use of shared needles. 

                Not surprisingly, given its proven effectiveness, the National Association of Drug Court Professionals has strongly recommended the use of MAT in drug courts.  California has gone as far as to pass a law prohibiting judges from banning opioid replacement therapy.  Notably, this law was passed after a drug court participant died of a heroin overdose because the judge ordered him to stop taking methadone.  This tragedy highlights how dangerous it can be to remove individuals from MAT.  Despite this danger, several judges routinely require defendants to detoxify from methadone or buprenorphine treatment as a condition of receiving an alternative to incarceration such as treatment court, even if doing so goes against the advice of a treating physician.  This course of action leaves defendants destined to fail: one study found that 82% of patients who had left methadone treatment relapsed to heroin addiction within 12 months.[1]

               

                Treatment court judges who are opposed to MAT commonly express the belief that this form of treatment merely substitutes one addiction with another.  Indeed, an Albany County drug court judge stated that he would not allow drug court participants to receive MAT because he “believes in recovery.”  Similarly, other judges believe that being addicted to methadone or buprenorphine is “like” being addicted to heroin and that any addiction is unacceptable.  Implicit in these beliefs is the notion that addiction is a “moral failing” rather than a medical problem amenable to medical treatment.  These beliefs also ignore the enormous difference between an active heroin addiction and the medical use of methadone or buprenorphine.  Heroin is remarkably different from both methadone and buprenorphine: while heroin induces intense euphoric effects, methadone and buprenorphine have only moderate effects that quickly disappear as the individual develops a tolerance.  MAT is not used to “get high,” but instead to treat withdrawal symptoms and relieve cravings. 

                To be sure, MAT does not “cure” an addiction to heroin.  Rather, it is a “corrective approach,” or a tool to help a person manage the incredibly intense symptoms and cravings associated with withdrawing from heroin. Using medication as a corrective approach has long been accepted in the treatment of other medical and mental health problems, and there is no legitimate reason that MAT should be considered differently.  In fact, long-term methadone maintenance is, “a medically safe, nontoxic treatment with minor, mostly transitory side effects, found mainly during the induction phase of treatment.”1  As such, it appears that the only potential downside of MAT is the fear that individuals prescribed methadone or buprenorphine will distribute them to others in the community, a practice the research calls “diversion.”  Judges however should be aware that primary addiction to these medications is rare since they do not produce the sharp euphoria that heroin does.  Thus, the “diverted” medication is not be used to “achieve a high,” but instead to treat the withdrawal symptoms of other individuals addicted to heroin.  In other words – even when diverted, the MAT medications are being taken for their originally prescribed purpose. Naturally, greater acceptance and availability of MAT treatment would diminish diversion, and allow those who need MAT to obtain it in a safe and controlled environment under the supervision of treatment professionals.   

                In sum, the use of methadone or buprenorphine in conjunction with traditional substance abuse treatment has proven to be the most effective method of treating opioid addicted individuals.  Treatment court judges interested in reducing crime, increasing public safety and promoting healthier communities should embrace MAT as a part their treatment programs.  For more information about MAT and the legality of denying MAT to individuals in the criminal justice system, I encourage you to read the two articles linked to below.

Legality of Denying Access to Medication Assisted Treatment in the Criminal Justice System  (Published by the Legal Action Center)

Methadone Maintenance Treatment (MMT): A Review of Historical and Clinical Issues

(Herman Joseph, Ph.D., Sharon Stancliff, M.D., and John Langrod, Ph.D.)

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[1] Herman Joseph, Ph.D. et al: Methadone Maintenance Treatment (MMT): A Review of Historical and Clinical Issues.

Court Weighs in On the Availability of Conditional Sealing Following a Dismissal Upon Completion of Judicial Diversion

Earlier this month, Supreme Court Judge Eduardo Padro issued a written decision in People v. Smith, (New York County) regarding an issue that has plagued defendants in some jurisdictions, particularly Manhattan, since the Judicial Diversion Program went into effect in October, 2009.  In 2009, Ms. Smith was allowed to participate in the Judicial Diversion Program, with the promise that if she completed her out-patient substance abuse treatment, her plea would be vacated and the case would be dismissed in its entirety.  The Court also promised to consider sealing the arrest and prosecution records pursuant to CPL § 160.58.  This section of law specifically allows courts to conditionally seal cases of defendants who have completed the Judicial Diversion Program as well as other judicially sanctioned treatment programs. 

Upon her successful completion of the Judicial Diversion Program, Ms. Smith applied to the court for conditional sealing pursuant to CPL § 160.58.  The prosecution opposed, claiming that CPL § 160.58 only applies to defendants who have been convicted and sentenced.  Since Ms. Smith’s case had ultimately been dismissed, the prosecution claimed that she was never sentenced and therefore was ineligible for conditional sealing.  The prosecution also claimed that Ms. Smith was not eligible for full sealing under CPL §160.50 since completion of the Judicial Diversion Program is not specifically listed in §160.50(3) as a “termination in favor of the defendant.”  Of course, taken to its logical conclusion, the prosecution’s hyper-technical interpretation of the two sealing statutes means that defendants like Ms. Smith would be better off with a conviction and CPL §160.58 sealing than having their cases dismissed altogether.  Surely, in enacting CPL §160.58, the Legislature never intended such an absurd result.    

Luckily, Judge Padro refused to adopt the prosecution’s overly narrow interpretation of the term “sentence,” and instead reasoned 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.”  Judge Padro further stated that CPL § 160.58 was, “passed granting the court additional authority to fully carry out the purpose of Article 216.”  As with many Judicial Diversion cases, there was no “final sentence” as Ms. Smith’s case was ultimately dismissed.  However, in refusing to narrowly interpret the term “sentence” within CPL § 160.58, Judge Padro reasoned that Ms. Smith was subjected to a “conditional sentence” as she entered the Judicial Diversion program following her guilty plea.  Judge Padro ultimately ruled that the since Ms. Smith had successfully completed the Judicial Diversion Program, she was eligible to have her case conditionally sealed.  

            Unfortunately, the two other Manhattan judges in the Judicial Diversion part – Judge Coyne and Judge Nunez – have previously held that sealing under either CPL § 160.50 or  §160.58 is not available to defendants who have their cases dismissed after successful completion of the Judicial Diversion Program.  Nonetheless, People v. Smith provides defense counsel an effective tool to argue that CPL § 160.58 sealing should be available in such cases.  Of course, in many counties, courts are sealing such dismissals pursuant to CPL § 160.50, as dismissals in the interests of justice, which is specifically included in CPL § 160.50(3) as a “termination in favor of the defendant.”    

The possibility that either CPL § 160.50 or CPL § 160.58 sealing may be available raises the question: is one sealing better than the other?  Since the benefits of each type of sealing are slightly different, the answer depends on the particular circumstances of your client.  While sealing under CPL § 160.50 is permanent, sealing under § 160.58 is only conditional, meaning the records will be automatically unsealed if the defendant is subsequently arrested for a criminal offense.  However, CPL § 160.58 sealing does allow for up to three prior misdemeanor drug offenses to be sealed in addition to the instant offense. For some clients, the benefit of sealing these prior misdemeanors may outweigh the conditional nature of CPL § 160.58 sealing.        

(The copy of People v. Smith that is linked to this blog has been redacted to fully honor the sealing that was afforded Ms. Smith.  Attorneys who require an unredacted copy to advocate on behalf of their clients should contact Jeff Leibo at CCA)

Third Department Rules that Defendants Convicted of an "Exclusion Offense" Following Release from Prison are Eligible for Resentencing

On August 11, 2011, the Third Department decided People v. Devivo, NY Slip Op 06195.  The case involves a defendant convicted of Criminal Sale of a Controlled Substance in the 3^rd Degree who received a sentence of 3 to 9 years in prison.  While on parole for this drug conviction, the defendant was convicted of Burglary in the 2^nd Degree (a violent felony), in addition to two non-violent felonies, and was sent back to prison.  Burglary in the 2^nd Degree is considered an “exclusion offense” for purposes of resentencing under the Drug Law Reform Act.  The issue here is whether an “exclusion offense” committed after release from prison renders a defendant ineligible for resentencing.

All four Departments have now ruled that the look-back period for an “exclusion offense” is measured from the date of the defendant’s motion for resentencing.  In the instant case, the County Court Judge denied the defendant’s motion finding him ineligible for resentencing due to the subsequent “exclusion offense” within the 10 years preceding his motion for resentencing.  The Third Department rejected this conclusion, essentially ruling that the 10 year look-back period didn’t even apply to this offense pointing out that the statute refers to a “previous felony” and a “present felony”, but not to a felony committed following the defendant’s release.  As such, the defendant was found legally eligible for resentencing.  Unfortunately, upon making this finding, the Third Department deferred to the County Court’s conclusion that given the defendant’s post-release conviction and conduct while incarcerated, substantial justice dictated that the application be denied. 

In summary, defendants with a conviction for an “exclusion offense” following their release from prison on a class B drug offense conviction may be legally eligible for resentencing.  In such cases however, counsel should be prepared to face strong opposition from the prosecution who will argue that “substantial justice” dictates a denial of the resentencing application.  For more information on the issue of “substantial justice”, please see our previous blog dated 8/12/11.