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Incarceration is deemed foolish in this case.


In this drug crime, the People contend that the defendant, a 17-year old with 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 New York Criminal law Attorney said that a presentence evaluation of this defendant by the Department of Probation indicates in part that he is “presently a resident of an upstate drug program apparently raised by interested and caring parents 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 in January 1987 he no longer denies that he has a problem and is apparently taking some action to deal with his drug abuse problem”.

Faced with the specter of a mandatory minimum sentence of three years to life for the top count of the indictment with no leeway for the consideration of mitigating factors, which did not fit the characteristics of the crime involved or the defendant, this Court, defense counsel and the district attorney’s office have conducted plea discussions over the past eight months. During this time, the defendant has been a full-time participant in a residential drug program–“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 district attorney’s office initially offered to dismiss the top A-II felony count upon the defendant being willing to plead guilty to a B Felony, which required an indeterminant jail sentence of one to three years.

A New York Drug Crime Lawyer said and this Court urged the appropriateness of a probationary sentence conditioned upon the defendant’s successful completion of the two year in-patient residential program with concurrent and supervisory follow-up by the Department of Probation. Subsequently, the district attorney’s office tentatively agreed with this desired probationary disposition, 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. It is to be noted that defendant has no control over any disposition of charges relating to his co-defendant.

Any society’s legal system has the ultimate responsibility of providing a code of activity for human interaction. Hopefully, the social values current in a particular democratic society will be reflected in its law through the involvement of societal representatives such as legislators, judges and others.

Traditionally, under our system of justice, a sentencing court, following any guilty plea or conviction, has a substantial degree of latitude in determining the severity or leniency of a sentence. This discretionary latitude, however, under mandatory sentencing scheme, limited or gravely restricted by legislation which imposes non-flexible minimums, as to a particular offense, does not enable a sentencing court to find “mitigating circumstances” based upon the characteristics of the crime and/or the criminal. This result, therefore, runs contrary to most concepts of judicial fair play, which rests upon the premise that the punishment for any offense should fit the nature of the crime and the individual criminal perpetrator involved.

The effect of the 1973 Rockefeller Drug Laws was largely directed at divesting the judiciary of discretion in the disposition of indictments and imposition of mandatory sentences in drug crimes. Despite widespread criticism, these mandatory drug sentencing laws have repeatedly been held constitutional. It has been recognized that these mandatory sentence provisions deprive judges and correctional authorities of the ability to base their judgments on the seriousness of the violations and the particular characteristics and potential for rehabilitation of the offender.

Various courts both at the trial and appeals levels have echoed concern over the rigid approach concerning sentencing. Sex Crimes and robbery were not charged.

In one case, the Court expressed the need for legislative reform with respect to mandatory sentences. The Appellate Division went so far as to indicate they would modify the sentence there in the interest of justice.

As a safeguard against this proscription for restriction of sentencing discretion and acting as a safety valve or net is a court’s overriding discretionary power to prevent injustice by dismissing in a particular case an indictment or parts thereof “in furtherance of justice”, when one or more compelling factors, considerations or circumstances are present.

Even though CPL § 210.40[1] sets forth ten separate criteria or determinants for consideration and CPL § 210.40[2] 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 not be covered in each and every instance. The Court of Appeals has stated that it is not mandatory that “each of the decalogue of possible determinants which make up paragraphs [a] through [j] of CPL § 210.40[1] be spelled out in so many words,” so long as “the ultimate reasons given for the dismissal are both real and compelling”

The legislature in codifying previous common law dismissal concepts and precedents into CPL § 210.40 did not carve out any exceptions to its applicability. The legislature did not create any exclusive restrictions when it adopted mandatory sentencing provisions with respect to a specific drug crime as involved herein.

Generally speaking, nearly every sentence passed on a criminal offender is directed towards achieving one or more of four basic ends.

These sentencing purposes are intended to subject the offender to some form of suffering or penalty, depriving him of life or liberty 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.

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 indeterminant sentences. Judges have been called upon to pronounce a sentence in very general terms by specifying a minimum and maximum sentence.

No one with half an open eye can fail to appreciate the tremendous impact of alcohol and substance abuse on the Criminal Justice System. This interest has been especially pertinent with respect to those charged with the commission of non-violent offenses such as is illustrated by most drug-related crimes.

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.

Accordingly, this Court finds that under the circumstances 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 January 8, 1987 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, 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 defendant had been convicted for grand larceny, previously.

The successful rehabilitation of this defendant would seem to be an obvious benefit to the defendant and all concerned. On the other hand, the aborting of defendant’s treatment process at “The Renaissance Project” at this time and his incarceration for from one to three years would seem senseless and accomplish absolutely nothing. In fact, it is almost certainly predictable that such incarceration would have a negative effect upon all concerned.

Defendant seeks alternative relief transferring this matter from Queens County Supreme Court to the Special Narcotics Part, 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, this Court determines after analysis of § 177a and b of Article 5-B of the Judiciary Law that it is empowered to transfer a pending narcotic indictment to any Special Narcotics Part in the City of New York. Such seems to be clearly contemplated by subd. 2 of § 177b.

Inasmuch as this motion is being resolved on other grounds, there is no necessity to implement the proposed transfer. However, this Court notes that such action, if taken, would have been reluctantly taken and only as a very last resort to insure that the interests of justice were served in the context of the characteristics of the crime and the offender.

While a drug user committed a crime, his rights as a criminal should also be protected. Here in Stephen Bilkis and Associates, our New York Drug Attorneys handle this kind of cases with due care and diligence. Write or call us now for a consultation.

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