Judicial Diversion: The Second Department Speaks

I'm pleased to report that we won a big appeal. I wrote back in 2010 about Judicial Diversion.

We have had several cases where clients were accused of drug felonies and we sought relief for them under Article 216 of the Criminal Procedure Law - "Judicial Diversion". When courts follow this 2009 law, most defendants go through treatment instead of incarceration.

If they do well under the program, there are huge benefits - the felony is reduced to a misdemeanor, sealed, or possibly even dismissed. This is the carrot that has always been missing from the carrot and stick. Previously the drug laws were all stick. The stick is still there - if the defendant does not comply with treatment, they lose the benefit of the law, go to prison, and the felony stays on their record.

But there has been a big problem with the law. We have encountered a number of prosecutors and judges who don't follow it. I've had prosecutors threaten my clients that if they seek diversion, the plea offer will get worse. I've seen judges who blatantly refuse to follow the law at all, including one "administrative" judge who hears criminal cases.

Part of the law states that defendants who request diversion must be evaluated and that the judge must give them a hearing. I've seen two judges who refused to do this - no evaluation, no hearing. In both cases we went ahead and got our own evaluation, and the judges still refused to give our clients hearings.

In the recent case, the judge reluctantly agreed to do an evaluation and a hearing. Before I go further, I have to say that I genuinely like Judge DeRosa. He is pleasant to those before him. He listens. While he was reluctant, he did listen to me and did go ahead with the evaluation and hearing. And while he improperly denied diversion, he did not send our client to prison, sentencing him only to probation. Many judges would have imposed a substantial prison sentence for 220 pounds of marijuana.

This is an important issue in the world of criminal defense. There are many drug cases and the legislature spoke clearly. I couldn't sit still. I had to fight this. So we appealed this case pro bono (for free). I'm not an appellate attorney, so this was way outside my comfort zone.

Despite our lack of appellate skills, the Second Department saw the facts and the law and did the right thing. Here's a link to their decision: People v. DeYoung.

This is apparently newsworthy - I found out about the decision when I heard from the New York Law Journal and then Reuters today. Here's a link to the initial Reuters article.

You can see the prosecutor's attitude in the article:

Orange County District Attorney Frank Phillips said he was "very disappointed" by the ruling.

Phillips said that he believes that the judicial diversion program is usurping prosecutors' discretion. He estimated that roughly 90 percent of the defendants in Orange County who are diverted are done so over his office's objection.

"I believe that judicial diversion, as it works in Orange County, is not productive, and that too many people who shouldn't be there are there," Phillips said.

Mr. Phillips is a fine example of a prosecutor showing disregard for the legislature's decision. He refers to "prosecutors' discretion." But the law doesn't give any discretion to prosecutors, and not much to judges either.

If prosecutors and judges want to punish defendants for not following the drug laws, shouldn't they follow the laws themselves?

We can only hope that the Second Department's ruling changes minds and behavior.

Here's some key language from the Second Department's decision:

In explaining its finding, the County Court placed much emphasis on the amount of marijuana and money involved in the transactions facilitated by the defendant in this case. While some County Court and Supreme Court cases suggest that diversion is appropriate only for low-level offenders (see e.g. People v Coco, 28 Misc 3d 563, 565), the Legislature specifically made defendants charged with crimes up to class B felonies eligible for judicial diversion (see CPL 216.00[1]). Class B felonies involve relatively large quantities of drugs (see e.g. Penal Law §§ 220.16, 220.39), and people who sell such quantities of drugs are unlikely to spend the entire profit on drugs. Nevertheless, the Legislature made such persons eligible for judicial diversion.