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Defendant Contends he is Eligible for Judicial Diversion Program


A man was arrested during the execution of a search warrant in his reported residence. The search warrant was based in part upon an undercover police officer’s sworn allegations that on 13 separate occasions the man, while acting in concert with co-accused sold cocaine and heroin. A New York Criminal Lawyer said the accusation charges the man and his companion, with felony conspiracy for cocaine and heroin and conspiring to commit Criminal Sale of Controlled Substance.

The Criminal Procedure Law defines those accused persons who are eligible for Judicial Diversion as ones charged with certain Class B, C, D, and E felony drug offenses, or those charged with specified nonviolent offenses as long as they do not have a disqualifying condition listed in the law. If the District Attorney consents, a non-eligible accused will be deemed eligible. The list of eligible crimes is specific and does not include every nonviolent felony.

Robbery in the Third Degree and felony DWI, both nonviolent offenses, are not specified eligible crimes. Disqualifying conditions include convictions within the past ten years for felony or a violent felony; those who have a prior second violent felony or persistent felony offender adjudication; and those who are presently charged with certain violent felony offenses. Prior adjudications for disqualifying crimes may also be considered by the court in determining eligibility.

The case was referred to the Treatment Court on the man’s request for Judicial Diversion. A New York Criminal Lawyer said the Judicial Diversion Program for Certain Felony Offenders grants authority to judges to determine which nonviolent accused persons, whose criminal activity is the result of substance abuse or substance dependence should have the opportunity to avoid a jail sentence by agreeing to complete court monitored treatment.

The statute is silent as to whether the presence on an accusation of nonviolent, non-specified crimes along with specified eligible charges precludes eligibility. Judges have reached different conclusions on the issue. Two courts have held that, as long as an accused is charged with an eligible offense and is not otherwise disqualified by the Criminal Procedure Law, the presence of a neutral charge on the accusations will not preclude participation. A New York Drug Possession Lawyer said the courts reasoned that, since the Legislature chose to list disqualifying charges, the clear intent was that omitted charges are not disqualifying. Two other courts have determined that the list of eligible charges is exhaustive and anyone charged with neutral charges is ineligible for Judicial Diversion. The courts reasoned that if the Legislature wanted those charged with neutral offenses to be eligible, it would have included those offenses in the list of eligible charges.

The Jury contends that the accused herein is not eligible for Judicial Diversion because the accusation charges him with Conspiracy which are not specified as either eligible or disqualifying offenses. The Jury argue that to permit those charged with neutral crimes to be eligible, would have the absurd result of finding those charged with drug felony or Criminal Use of a Chemical Weapon or Biological Weapon, a felony eligible.

The accused man contends that he is eligible for Judicial Diversion because he is charged with specified felony drug crimes, has no prior disqualifying convictions, and no pending disqualifying charges. He argues that to exclude those charged with neutral crimes along with specified eligible charges from eligibility for Judicial Diversion would have the illogical result of excluding those whom the Jury chose to charge with neutral lesser-included misdemeanors and/or conspiracies to commit specified eligible offenses.

Given that the underlying 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 the goal by returning discretion to judges to tailor the penalties of the penal law to the facts and circumstances of each drug offense and authorizing the court to sentence certain nonviolent drug offenders to probation and drug treatment rather than mandatory prison when appropriate, a more expansive interpretation of the statute favors the underlying legislative purpose.

Given the Legislature’s failure to include any misdemeanors among the eligible offenses, it must have intended that such crimes would not automatically disqualify an accused from Judicial Diversion. To find otherwise would result in the absurd conclusion that an accused charged with an eligible felony drug possession offense would be disqualified by the inclusion of the lesser-included misdemeanor of Criminal Possession of a Controlled Substance. The reasoning leads to the ineluctable conclusion that lesser-included crimes, though not specified, are not disqualifying.

By the same reasoning, while a conspiracy to commit a completed crime is not a lesser-included offense of the completed crime, it embraces all of the overt acts and substantive crimes in the particular criminal enterprise, and is integrally related to the commission of the completed crime. Since the neutral charges of Conspiracy embrace and integrally relate to the specified eligible charges of Criminal Sale of Controlled Substance, the Court concludes that the accused man is not disqualified from eligibility for Judicial Diversion as a result of the inclusion of the charges in the accusations.

Having determined that the accused man meets the statutory definition of eligibility, the Court must determine whether or not he should be referred for an evaluation. The statute does not require that every eligible accused be guaranteed an evaluation to determine if he should be offered diversion for treatment. The accused man’s request to be evaluated is denied. Diversion into treatment is designed for those who not only have a history of alcohol or substance abuse or dependence, but whose abuse or dependence is a contributing factor to their criminal behavior. The purpose of diversion of such accused to substance abuse treatment is that, once drug abuse is overcome, the criminal behavior will also stop. When an accused person’s untoward behavior is motivated by greed or profit, rather than a need to obtain money to purchase drugs for immediate use, drug treatment may have no effect on the behavior.

The accused man was the subject of a long-term investigation into the sale of controlled substances in the State public housing development. Acting with another person, he is alleged to have sold a quantity or cocaine or heroin to an undercover officer on 13 occasions. The sales were allegedly negotiated by the accused in advance over the phone with the undercover and involved substantial amounts of drugs. At the time of the search warrant execution in the accused man’s residence, he is alleged to have been in possession of drug packaging and scales. Based on the allegations, even if his claim of alcohol and substance dependence were to be credited, the Court is not persuaded that such dependence is a contributing factor to his behavior. The allegations are not indicative of the kind of criminal behavior that results from substance abuse or dependence. The crimes are not the crimes of someone who compulsively needs to obtain money to purchase drugs for immediate use. Rather, the allegations describe the actions of a businessman selling drugs to make money.

Accordingly, having considered all of the arguments presented, the Court finds that the accused man is an eligible accused as defined in the Criminal Procedure Law despite the presence of neutral charges on the accusations nevertheless the court also finds that the accused man is not a suitable candidate for the Judicial Diversion Program.

Taking alcoholic drinks prior to driving and using prohibited drugs have nothing good to offer. If you find yourself in an alcohol and prohibited substance lawsuit that led to serious crime, or have been charged with sex crimes, or a theft charge, let the Stephen Bilkis and Associates New York DWI Attorneys together with the New York Criminal Lawyers help you explore your legal options.

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