Monday, November 22, 2010

Judicial Diversion for drug felonies

This revolution has started with a whimper, not a bang.

In the spring of 2009, New York adopted a new Article 216 of the Criminal Procedure Law. It became effective in October of 2009.

This is a huge development in New York for handling drug offenders with treatment instead of incarceration, through Judicial Diversion. Or it should be. In some counties the courts are applying it faithfully. We've had reasonably good experience in Orange County and have heard good things about Westchester.

In other counties the judges and/or prosecutors are fighting it. Sadly, Albany County is one of these.

Here's what we have been saying in our memos:

Dear Judge ______:

Please accept this letter memorandum regarding judicial diversion. As we have discussed in Court, Mr. _____ seeks to participate in judicial diversion as laid out in the new CPL Article 216.

Judicial Diversion under Article 216

Pursuant to § 216.05(1), Mr. ______ can undergo a court-ordered alcohol and substance abuse evaluation. Per that subsection, this is “for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance abuse or dependence, alcohol abuse or dependence and any co-occurring mental disorder or mental illness.” We have already provided such an evaluation, by Dr. _____.

If the Court prefers to save judicial resources, we are happy to have the Court rely on Dr. _______’ report.

§ 216.05(3)(a) permits a hearing if requested, “on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment ….” Mr. _____ requests such a hearing.

§ 216.05(3)(b) lays out certain factors to be considered at such a hearing. Under subdivision (i), the Court would “consider and make a finding of fact” as to whether the defendant is eligible per § 216.00. It is undisputed that Mr. _____ is eligible.

Under subdivision (ii), the Court would consider whether Mr. ______ “has a history of alcohol substance abuse or dependence.” Dr. _______ finds that he does.

Under subdivision (iii), the Court would consider whether “such … abuse or dependence is a contributing factor to the defendant’s criminal behavior.” It should be noted here that the standard is not whether such abuse or dependence was “the proximate cause” of the crime. It is a very low standard – whether it was “a contributing factor.” Dr. _____ does find that his “substance abuse was a contributing factor.

Under subdivision (iv), the Court would consider whether “judicial diversion could effectively address such abuse or dependence.” Dr. _____ finds that Mr. ______ is “a good candidate for judicial diversion.”

Under subdivision (v), the Court would consider whether “institutional confinement of the defendant is or may not be necessary for the protection of the public.” There is no indication in this case that Mr. ______ poses any danger to the public, and Dr. _____ finds that institutional confinement is not necessary.

Thus, on all five factors specified in § 216.05(3)(b), Mr. _____ fits, and should be offered judicial diversion pursuant to § 216.05(4). I note here that Mr. ______ does not claim “exceptional circumstances” under § 216.05(4)(b) so any diversion would involve a plea of guilty.


Judicial Diversion is not the same as Drug Court

During the course of handling Mr. ______’s case and other cases, it seems that many court personnel think that Judicial Diversion is the same as or similar to drug court. It isn’t.

Judicial Diversion is governed by Article 216 of the CPL, which has several substantial provisions. By contrast, “drug court” is not well defined in the statutes. As Professor Preiser put it in the commentary to CPL 180.20:

The new procedure permits transfer of cases to another court within the same county that has been designated to operate a special “drug court” program. The program did not require any particular substantive authority, as diversionary programs have been in operation in this state for many years without specific legislation. The present statute merely facilitates use of a diversionary program by creating a mechanism for economies of scale through legislative authorization for transfer of cases; thus supplementing jurisdictional limitations of local criminal courts. Note that there is no provision as to how a “drug court” is to operate. The sole requirement is a motion by defendant, consent of the district attorney and exercise of judicial discretion to transfer the action. Presumably the operation is a matter of local county option. This would include, such matters as: whether a plea of guilty is to be required prior to or post transfer; whether there is to be a specified sentence upon a guilty plea, if entered, that will be carried out if defendant does not perform acceptably in the program; or whether a guilty plea, if entered, may be withdrawn upon successful completion of a program. A parallel provision for offenses below felony grade was added as CPL § 170.15(3).

There are many differences between drug court and judicial diversion.

Drug court is controlled at the county level with almost no state statutory guidance. Judicial diversion is covered by Article 216 which contains detailed instructions.

Drug court requires consent of the District Attorney, under CPL 180.20(3). Judicial diversion does not require the DA’s consent except where the defendant seeks to participate without entering a plea. CPL 216.05(4)(a).

Drug court covers both misdemeanors and felonies. Judicial diversion applies only to felonies. CPL 216.00(1).

Drug courts often include random visits to the defendant’s home with surprise drug tests. Judicial diversion “may include … periodic court appearances, which may include periodic urinalysis.” 216.05(5). Subsection 8 also provides:

The court may require the defendant to appear in court at any time to enable the court to monitor the defendant's progress in alcohol or substance abuse treatment. The court shall provide notice, reasonable under the circumstances, to the people, the treatment provider, the defendant and the defendant's counsel whenever it orders or otherwise requires the appearance of the defendant in court.

Monitoring of defendants under judicial diversion is much less stringent than under drug court. Please note that Dr. _______’s treatment plan includes random drug screens under the supervision of treatment personnel, so court drug screens may be unnecessary.

Probation supervision is common in drug court. It is optional in judicial diversion after the treatment is complete, and only applies where it is attached to subsequent withdrawal of the guilty plea. 216.05(10). Probation supervision is not included in the list of release conditions specified for diversion in 216.05(5).

While Judiciary Law § 212(r) does envision that judicial diversion cases would be assigned to judges who handle drug treatment courts, that is a directive to OCA, is only for supervision of such cases, and only “to the extent practicable.”

Judicial diversion does not mean putting the defendant in drug court nor the equivalent of drug court. It is not a one-size-fits-all treatment plan. 216.05(5) indicates it:

shall include: participation in a specified period of alcohol or substance abuse treatment at a specified program or programs identified by the court, which may include periods of detoxification, residential or outpatient treatment, or both, as determined after taking into account the views of the health care professional who conducted the alcohol and substance abuse evaluation and any health care professionals responsible for providing such treatment or monitoring the defendant's progress in such treatment.

Conclusion

In Mr. _____’s case, Dr. ______ has recommended a detailed program of treatment. He is a health care professional and has agreed to be responsible for providing and monitoring such treatment.

There do not appear to be any objections to Dr. ______’s recommendations.

Consistent with § 216.05, the Court should set conditions for Mr. _____ following Dr. ______'s recommendations, including:

[insert treatment recommendations]

While defense counsel feels it’s unnecessary (due to the treatment recommendations), 216.05(5) does permit the Court to require periodic court appearances with urinalysis. Defendant consents to this if the Court wishes to impose such condition.

Further, this program does not impose any costs on the state or county, and is thus consistent with the effort under 216.05(7) for costs to be borne by health insurance where possible.

Finally, while Article 216 is fairly new, the Court may wish to review the recent case of People v. Jordan, 908 NYS2d 844 (Westchester Co. Ct., August 2010) (defendant facing 23 count indictment offered diversion).

I respectfully submit that, absent any evaluation to the contrary, Dr. ______’s report is persuasive and unrebutted and a hearing may be unnecessary if the Court is willing to offer judicial diversion to Mr. _______.
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