A man is charged with criminal possession of a controlled substance in the third degree. It is alleged that the man was seated in the driver’s seat of a car and that a bag of crack cocaine, which had an aggregate weight in excess of one eighth of an ounce, along with a small amount of marijuana, were inside the car. Another individual in the car was indicted as the man’s accomplice.
About a month later, the man and three other individuals were arrested and charged with criminal sale of a controlled substance in or near a school grounds. In is alleged that the man have handed a bag of heroin to an undercover police officer in exchange for money. It is also alleged that several accomplices directed the undercover officer to the man, one told the officer to try the car to see if the man was there.
Several months after being arraigned, the man applied for judicial diversion. The man was first screened for possible consideration by an addiction and substance abuse counselor. The man told the counselor that he has a 20 year history of weekend binges of alcohol consumption, and has been an intermittent user of cocaine. The counselor recommended that the man be evaluated for potential placement in drug and/or alcohol treatment.
The court subsequently ordered an alcohol and substance abuse evaluation to determine whether the man had a history of and/or current dependence on alcohol or a controlled substance. The man was then evaluated by the director of the program. The information obtained by the director was input into a computer software program.
In the report, the director concluded that it was highly probable that the man has a drug or alcohol problems and needs substance abuse treatment intervention. Based upon the assessment, the director recommended a long term residential treatment.
The complainant however opposed in placing the man in judicial diversion, citing the man’s long criminal history, which consists exclusively of felony drug sale and possession convictions.
Upon receipt of the report, the court noted that the man had not been given a urine test to determine whether he had ingested any illicit substances at the time of his alcohol and substance abuse evaluation, and ordered such a test be conducted that day. But, the results of that test disclosed no evidence of any illicit substance.
Afterward, the complainant and the man had given an opportunity to present evidence and make arguments to the court.
Sources revealed that the director’s basis for finding that the man has a long-term alcohol and cocaine addiction problem that requires an eighteen to twenty-four month residential treatment program is predicated almost entirely on what the man told her during the psycho-social evaluation. The man said he has used cocaine since the age of 28. He also reports using alcohol since he was a teenager. In addition, the frequency of alcohol and/or cocaine use is not disclosed in the report, but the director told the court that the man reported his cocaine and alcohol use to be frequent, and it is part of the reason she recommended a long-term residential treatment. The man also indicated during his evaluation that he believed his current and past legal problems are at least partly due to drug or alcohol use, and said he believed that he would benefit from substance abuse treatment.
Based on records, the man was being supervised on post-release supervision by the department of parole when he was arrested. He was not imprisoned for violating the conditions of that supervision until after his arrest.
The director also told the court that the man said that he had not used cocaine or drank alcohol almost a year ago. But, the information is not contained in the report, however it contradicts at least in part of a statement attributed to the man in that report indicating he was using alcohol and drugs at the time of the current offense. Yet, either statement is consistent with the random negative toxicology results.
The man stated that he has been drug and alcohol free, without any treatment or intervention, for more than ten months. Further, he stated that he is no longer imprisoned on either of the cases and his parole revocation confinement is already ended, at the conclusion of the maximum term of his sentence.
The man also told the director that a parole officer placed him in an alcohol treatment program about two years ago. The director did not contact the parole officer prior to preparing the report and no information directly obtained from that officer was provided to the court.
The man’s attorney, however, produced a certificate showing that the criminal man had completed an educational program previously, during his period of post release supervision, and said that the man’s parole officer ordered him to attend the program.
Based on records, there is no evidence that the man has ever been charged with operating a motor vehicle under the influence of alcohol. The man also told the director that he had been in a residential treatment program at some point about ten years ago. The director stated that even if the man were certain of the name of the program, she would be unable to access records from that period.
The man also said that he was employed at the time of his criminal arrests, and that he continues to be employed at the present time. In fact, the man works at two different jobs. Subsequently, the director obtained a letter verifying one of the two jobs.
According to the report, the man said that he has never been fired from a job, and that he feels he needs no additional training of career skills.
The complainant then challenged one statement attributed to the man in the report, in which he said that few of his friends and associates have ever been arrested, pointing out he was indicted with accomplices in each of the current cases.
The complainant directed the court to the man’s criminal record, which they said was the primary reason they objected to his placement into treatment through judicial diversion. The complainant did not have the underlying facts of any of the said convictions, including the amount or weight of narcotics the man possessed and/or sold. However, the two prior felony narcotics possession convictions includes that the man possessed the narcotics with intent to sell them to another person.
The court asked how frequently the man tested positive for drug or alcohol use during the random screenings conducted while he was on parole and/or post-release supervision in the sixteen years following his first felony conviction. The attorney said the man recalled one positive result during a random toxicology screening sometime while he was under parole supervision.
Sources revealed that the court must first determine whether a man is eligible for a drug program because it is essentially a legal determination, based on the current charges as well as the man’s criminal history. If a man is legally ineligible, the inquiry is complete, and the application should be denied.
After considering all of the information presented by the parties, the court declines to use its discretion and place the man into judicial diversion. The cases will then proceed to trial.
Whenever you are convicted of a crime and you want to contest the decision of the court, New York City Criminal Lawyer can provide you legal assistance. Further, if you get involved in an offense of criminal possession of a controlled substance, New York Cocaine Possession Attorneys at Stephen Bilkis and Associates are the right experts for such matter.