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Court Sentences Defendant to Judicial Diversion Program


The defendant was charged with several counts of criminal possession of a forged instrument, grand larceny and scheme to defraud. The parties to the case put in issue the eligibility of the accused for judicial diversion. The defendant argued that he is entitled for the judicial diversion program since he was indicted with crime of grand larceny where such offense is included in the list for the statute to be eligible for such program and none of the other crimes he was charged were considered exclusions to the said program. The respondent questioned the felon’s eligibility because only one of the several counts of charges filed against him rendered him eligible for the judicial diversion.

The statute listed down the specific exceptions to being an “eligible defendant,” to wit, “any defendant convicted of a violent felony offense, any other offense for which a merit time allowance is not available, or a class A drug felony within the preceding ten years. Also listed as an exception is that any defendant who has previously been adjudicated a second violent felony offender or a persistent violent offender.” A New York Criminal Lawyer said such exclusions to warrant denial of being eligible for judicial diversion were not applicable to the case of the accused.

Considering that the simple and clear language of the law lead to the conclusion by the Court that the defendant was not caused to be ineligible for the program simply because he was charged with other offenses in the indictment, which was not listed in the statute entitled to the judicial diversion. Although the statutory act sets forth particular circumstances that would make a person ineligible, it failed to indicate that the charges against the defendant are mutually exclusive with the qualifying offenses or the inclusion of non-qualifying offenses in the indictment would subject the accused to ineligibility.

A New York City Criminal Lawyer said in applying the rule on statutory construction, as ruled in one case, the “legislative intent is to be ascertained from the language used, and that where the words of a statute are clear and unambiguous, they should be literally construed.” If the legislative intent of the law is to omit defendants from eligibility of judicial diversion due to being indicted with non-qualifying crimes, then the statute would have stated it otherwise and evidently indication of such intent was absent from the law. Furthermore, the primordial purpose of the statute in granting the judicial diversion is for the court to be given authority to render sentence to non-violent drug offenders to probation and drug treatment instead of mandatory prison in appropriate cases.

Thus, the court ruled that since substance abuse was the main cause underlying the criminal behavior of an individual, any charges of penal offenses together with non-qualifying offenses should not be automatically excluded from the diversion program due to that reason alone for it undermines the real reason and legislative intent of the statute.

It must be noted that the purpose of the hearing is to determine whether a defendant is “eligible” for the judicial diversion program as provided by law, hence, the conduct of such is a gateway to the question of whether the defendant would be ultimately accepted into the program. The court has the responsibility to determine with finality to accept the offender to the judicial diversion program after considering the full evaluation of the alcohol and substance abuse report of the defendant. Such report is assessed to find whether the alcohol and substance abuse are the driving factors for the commission of the felony by the defendant.

Accordingly, the court found that the defendant is an “eligible defendant” since he was charged with grand larceny, which is one of the offenses cited in the statute considered as a diversion-eligible offense.

Even an accused or a defendant has several options provided by various laws or statues, which one can avail with assistance of a grand larceny lawyer to ensure that the proper and best remedy be given to him to answer for his criminal charge. Here at Stephen Bilkis and Associates, we have criminal attorneys who could provide you with the best strategies and options on how to go about handling your case that could properly address your legal dilemmas, whether you have been charged with theft, drug possession or sex crimes.

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