New York Criminal Lawyer Blog
A 17-yr old defendant’s motion places in prospective whether his satisfactory “second chance” experience, as a full-time participant in a residential drug rehabilitation program, designed to return addicts (ex) or substance abusers to society, constitutes such a compelling factor, consideration or circumstance to warrant dismissal of the two top counts of the indictment Criminal Sale of a Controlled Substance In The Second Degree and Criminal Possession of a Controlled Substance In The Third Degree, which counts require mandatory minimums of incarceration upon conviction; cocaine possession or crack possession, a drug crime violative of criminal laws.
A New York Criminal Lawyer said the People contend that the moving defendant who has no prior criminal record assisted a co-defendant in the sale of 7/8ths of an ounce of cocaine to an undercover police purchaser. Defendant was then a drug user with a dependency problem.
A pre-sentence evaluation of defendant by the Department of Probation indicates in part that he is a resident of an upstate drug program apparently raised by interested and caring parents who began abusing drugs at approximately the age of 13; apparently unable to come to terms with his abuse problems until his instant arrest; voluntarily committed himself to the Renaissance Project; he no longer denies that he has a problem and is apparently taking some action to deal with his drug abuse problem.
Plea discussions were conducted for over eight months. During this time, the defendant has been a full-time participant in a residential drug program, A New York Criminal Lawyer said the Renaissance Project, supported by the New York State Division of Substance Abuse Services. These conferences sought to arrive at an agreement which would circumvent the harsh mandatory minimum sentence of three years to life.
The desired probationary disposition was tentatively agreed upon, conditioned, however, upon the acceptance by the co-defendant of a plea of guilty and the Court’s imposition of a significant term of incarceration.
On Dismissal in the Interest of Justice:
It must be noted that the law permit a court to dismiss an indictment where, in the opinion of the court, there exists some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution would constitute injustice. Dismissal of an indictment in the furtherance of justice is discretionary with the court and must rest upon a sensitive balancing of the interests of the individual and the state.
Moreover, even though the law sets forth ten separate criteria or determinants for consideration and it indicates that the court’s dismissal reasoning must be set upon the court record, there is no requirement that all statutory criteria or determinants need to be covered in each and every instance. A New York Drug Possession Lawyer said that the Court of Appeals has stated that it is not mandatory that “each of the decalogue of possible determinants which make up the provisions of the applicable be spelled out in so many words, so long as the ultimate reasons given for the dismissal are both real and compelling.
On Sentencing Objective of Non-Incarceration Rehabilitation as a Compelling Factor:
Generally speaking, nearly every sentence passed on a criminal offender is directed towards achieving one or more of four basic ends (Deterrence, Separation, Rehabilitation and Retribution).
These sentencing purposes are intended to subject the offender to some form of suffering or penalty, depriving him of life or liberty (permanently or temporarily) through death or incarceration.
The major underlying theory behind these sentencing ends is that the fear of possible death, incarceratory punishment or suffering, will operate in some way in the minds of potential lawbreakers to deter them from committing future criminal acts; thus, resulting in a determinant effect on offender recidivism.
Although considerable modern penological opinion recognizes that whatever sentencing form is undertaken as a deterrent to crime, the various forms used have largely failed in their objectives. A New York Sex Crimes Lawyer said that nevertheless, punishment, etc., can be expected to be society’s main answer to the criminal offender until some more satisfactory substitute is found.
For the past seventy odd years sentencing policies, as expressed in United States correctional opinion, have been dominated by a commitment to incarceration-rehabilitation through the imposition of indeterminate sentences. Judges have been called upon to pronounce a sentence in very general terms by specifying a minimum and maximum sentence; the final decision resting largely with a parole board. Recent evaluation of this “rehabilitation leading to release” experience has indicated that they have had a very questionable effect on offender recidivism.
Further, during this period of rehabilitation commitment, there has been a movement within penal institutions towards vocational and other training of those incarcerated as a step towards their eventual rehabilitation. Unfortunately, these efforts have been largely ineffective because of restricted prison budgetary provisions and other inhibiting factors.
No one with half an open eye can fail to appreciate the tremendous impact of alcohol and substance abuse on the Criminal Justice System.
On the other hand, it is interesting to note that the Queens County District Attorney’s Office has had for the past number of years a “Second Chance” program. However, this program unfortunately has been expressly restricted to those youthful offenders committing non-violent misdemeanors with no drug involvement.
Although a reliable statistical bank has not as yet been gathered, it would appear that these non-incarceration “second chance” efforts offer great promise in reducing offender recidivism.
The Court is inclined to believe that the criminal justice system must make a concerted effort to salvage, by resort to non-incarceration–rehabilitation programs, wherever possible and merited those who have become sidetracked from the mainstream of our society through alcohol-and-drug-related substance abuse, especially those who are young, first-time offenders.
It would seem to make sense that regardless of the motivation of an offender to enter a substance abuse program that his or her entrance as soon after arrest as is possible has great merit and should be encouraged. Early admission into a second chance program enables a future sentencing court, the district attorney’s office and others to consider a rehabilitative track record prior to any pre-pleading evaluation or pretrial discussion. Early entrance would seem beneficial to the drug-dependent offender.
On application of the law:
Here, the 17-year old former drug abuser has no prior arrest record. As a result of the “in-court” and written monthly updates over the past 10 months, the Court is satisfied that the defendant, as a full-time resident of “The Renaissance Project”, is making a successful adjustment toward a drug-free life. The program reports that the progress towards modifying his behavior and heightening his self-control has been encouraging. The defendant completed his GED course and received his diploma.
Accordingly, the Court finds that the dismissal of the two top counts would enable this Court to avoid an unjust, unreasonable and negatively productive mandatory sentence of incarceration. Such dismissals would enable defendant to plead guilty to the balance of the indictment and this court to sentence him to a probationary sentence. Such probationary sentence would be subject to defendant’s satisfactory completion of the two year residential program that the defendant has been in since and would be followed by three years’ additional probationary supervision. The entire probationary sentence would further be subject to a maximum of five to fifteen years’ contingency incarceration commitment in the event the program was not satisfactorily completed or that there was a re-arrest or other behavior which would constitute a violation of probation.
Upon a balancing of all interests, such a sentence would leave the defendant with a felony record (Criminal Possession of a Controlled Substance in the Fourth Degree–a “C” Felony), and place him in a position to complete, under the supervision of the Department of Probation, his two-year in-patient commitment at “The Renaissance Project”.
The successful rehabilitation of the defendant would seem to be an obvious benefit to the defendant and all concerned; to do otherwise and abort defendant’s treatment process at “The Renaissance Project” and his incarceration for one to three years would seem senseless and accomplish absolutely nothing. It is even almost certainly predictable that such incarceration would have a negative effect upon all concerned.
On the Alternative Relief:
Defendant seeks alternative relief transferring the matter from Queens County Supreme Court to the Special Narcotics Part (sitting in New York County), pursuant to the intent of Article 5-B of the Judiciary Law.
Although no authority has been cited in support of such transfer or seems to presently exist, the Court determines after analysis that it is empowered to transfer a pending narcotic indictment to any Special Narcotics Part in the City of New York.
Notwithstanding any other provision of law, upon or after arraignment on a narcotics indictment filed in the Supreme Court in any county within such cities and before entry of a plea of guilty or commencement of trial, such Supreme Court may order that the indictment and action be assigned to a special narcotics part of the Supreme Court. However, there is no necessity to implement the proposed transfer. The Court notes that if such action is taken, it would have been reluctantly taken but only as a last resort to insure that the interests of justice were served, in the context of the characteristics of the crime and the offender.
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