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Court Decides Defendant Should be Offered the Judicial Diversion Program

A hearing was held on the accused man’s request to enter the Judicial Diversion Program. The man has been charged in a 23 count indictment with 21 counts of criminal possession of a forged instrument, one count of grand larceny and one count of scheme to defraud. Both the State and the defense counsel have submitted post-hearing memoranda of law on the issue of the man’s eligibility for judicial diversion.

The State argue that the man may not be considered an eligible accused as that term is defined in the criminal law, since only one of the counts contained in the 23 count indictment would render him eligible for Judicial Diversion. The State oppose the man’s participation in Judicial Diversion, asserting that since he has been charged with numerous offenses in the indictment which are not listed in the Judicial Diversion statute, it renders him ineligible for the program.

The man contends that he is eligible for the Judicial Diversion Program because he is charged with grand larceny, which is an included offense under the statute. A New York Criminal Lawyer said he argues that the statutory language of the Criminal Procedure Law does not exclude his participation simply because he is also charged with offenses which fall outside the statute. None of the other offenses he is charged with in the indictment are specifically listed in the Criminal Procedure Law as offenses which would exclude him from the program.

The codification of the Judicial Diversion Program is set forth in Criminal Procedure Law which provides that an eligible accused is any person who stands charged in an indictment or a superior court information with a class B, C, D or E felony offense defined in the penal law or any other specified offense which includes a number of non-drug crimes often related to drug abuse. A Queens Criminal Lawyer said one of the 23 counts the man is charged with is grand larceny, which is specified in the Criminal Procedure Law as an offense that would be included in the statute as rendering a person eligible for the Judicial Diversion Program.

There are also specific exceptions to being an eligible accused listed in the statute. These include any accused convicted of a violent felony offense, any other offense for which a merit time allowance is not available pursuant to Correction Law, or a class A drug felony as defined in the Penal Law within the preceding ten years (excluding any time the accused was incarcerated between the time of the commission of the previous felony and the present felony). Also listed as an exception, is any accused person who has previously been adjudicated as a second violent felony offender or a persistent violent offender.

Given that the purpose of the statute, as stated in both the Senate and Assembly Memoranda in Support of Legislation, is to significantly reduce drug-related crime by addressing substance abuse that often lies at the core of criminal behavior, and to accomplish this goal by returning discretion to judges to tailor the penalties of the penal law to the facts and circumstances of each drug crime offense and authorizing the court to sentence certain non-violent drug offenders to probation and drug treatment rather than mandatory prison where appropriate, a more expansive interpretation of the statute favors the underlying legislative purpose. In enacting the statute creating the Judicial Diversion Program, the legislature recognized that the policy of incarceration and punishment of non-violent drug users had failed and that expanding the number of nonviolent drug crime 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. Thus, an accused who would otherwise be eligible for the Judicial Diversion Program and whose substance abuse is the driving force behind their criminal behavior should not be automatically excluded from consideration simply because they are also charged with non-qualifying offenses.

To read the statute to exclude individuals on the basis that they are also charged with non-qualifying offenses would allow the State to undermine the purpose of the statute by including a non-qualifying offense in the indictment, and thereby rendering the accused ineligible. While some lower courts have read the statue narrowly to exclude participation of those otherwise eligible accused also charged with non-qualifying offenses, such a narrow interpretation of the statute is not consistent with the underlying statutory purpose and the legislative reasoning behind the enactment of the Judicial Diversion Program.

In arguing against the eligibility of the accused persons who also are charged with non-qualifying offenses, the State also contend that mandatory state prison terms are mandated for some first and second felony offenders by Penal Law. A New York Sex Crimes Lawyer said an accused who is indicted for a specified offense and a non-specified offense that requires a mandatory prison term could not be diverted without the court violating the other express provisions of law. However, the reasoning is fundamentally flawed, because if an accused was accepted into the Judicial Diversion Program, he or she would then be sentenced in accordance with its provisions, which according to the statute apply notwithstanding the provision of any other law. Thus, the mandatory” sentences of Penal Law would not apply to an accused accepted into the program, since the Criminal Procedure Law would then govern his or her sentencing.

The State also contend that finding an accused who is charged with numerous offenses, only one of which is judicial diversion-eligible, to be an eligible accused would open up the program to a wider range of offenders than contemplated by the statute. However, the argument ignores that a determination of whether an accused is eligible for the Judicial Diversion Program under the statute is only a threshold inquiry as to whether they will be ultimately be accepted into the program.

It must not be overlooked that the final determination of acceptance into Judicial Diversion is left to the Court’s discretion after having received a completed alcohol and substance abuse evaluation report, and having considered any relevant evidence in accordance with the Criminal Procedure Law. To accept an eligible accused into the diversion program, the Court must make a finding that the accused has a history of alcohol or substance abuse dependence and that such alcohol or substance abuse dependence is a contributing factor to the accused man’s criminal behavior. Indeed, courts have declined to place accused persons who were otherwise legally eligible under the statute into the program based, for example, upon a lack of sufficient substance abuse history, or where such abuse or dependence is not deemed a contributing factor to the accused person’s criminal behavior.

Thus, based upon the plain language of the statue as well as the underlying statutory purpose, the Court finds that the accused is an eligible accused as that term is defined in the Criminal Procedure Law, since he stands charged with grand larceny specified in the Criminal Procedure Law as a diversion-eligible offense.

Having determined that the accused is an eligible accused having received a completed alcohol and substance abuse evaluation report, having held a hearing on the issue of whether the eligible accused should be offered alcohol or substance abuse treatment, and having considered any relevant evidence in accordance with the criminal law, the Court makes the findings of fact that the accused is an eligible accused. The Court also finds that the accused has a history of alcohol or substance abuse dependence. Furthermore, such alcohol or substance abuse dependence is a contributing factor to the accused person’s criminal behavior and the accused man’s participation in judicial diversion could effectively address such abuse or dependence. The Court also found that institutional confinement of the accused is not or may not be necessary for the protection of the public.

Based upon the findings of fact, the Court determines that the accused should be offered alcohol or substance abuse treatment and may be allowed to participate in the judicial diversion program. Such participation in the judicial diversion program is subject to the accused person’s plea of guilty to the charge or charges, unless specifically exempted from the requirement, and further compliance with the orders of the Court, including but not limited to the provisions of the Judicial Diversion Contract.

No matter how the law categorized crime, it still hurts people in the end. If law offenders are given the chance to get away from a more severe punishment, call Stephen Bilkis and Associates. Whether you have been charged with drug possession, theft or sex crimes, they can help.

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