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On 28 January 2010, the People, the defendant, and his attorney all had an opportunity to be heard


The police executed a search warrant on 15 October 2008 at approximately 6:15 p.m. In the second floor apartment of 367 East 46th Street in Kings County, the defendant’s admitted residence, he was observed alone in a bedroom from which the police recovered, inter alia, approximately 3½ ounces of a substance containing cocaine, a scale, a box of .45 caliber ammunition, and 675 dollars. The defendant was arrested and subsequently indicted for two counts of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16[1] and [12]) and other lesser charges. He has no predicate felony convictions and no other pending felonies.

This case was referred to the Brooklyn Treatment Court on 16 November 2009, upon the defendant’s request for judicial diversion. It is undisputed that he is an eligible defendant for judicial diversion as defined in CPL § 216.00(1). Nevertheless, the People object to his diversion into treatment, arguing that the allegations concerning his possession of a large quantity of cocaine and money, a scale, and ammunition indicate that he is a drug dealer, not a drug addict. Notably, the amount of cocaine allegedly recovered falls a mere ½ ounce short of a felony weight, which would have made the defendant ineligible for diversion absent the People’s consent. Moreover, according to the transcript of the search warrant application, the defendant sold crack cocaine to a CI from this location on two occasions.

The Court ordered an alcohol and substance abuse evaluation, over the People’s objection, to determine whether the defendant has a history of alcohol or substance abuse or dependence and whether he should be offered judicial diversion for treatment. The defendant, on 1 December 2009, was assessed by the Diversion Case Manager, an Addiction and Substance Abuse Counselor credentialed by the Office of Alcoholism and Substance Abuse Services pursuant to MHL § 19.07.

The defendant’s evaluation included a urinalysis and a series of questions regarding his drug use, education, employment, medical condition, family relationship, and living arrangements. Based on the assessment, the evaluator concluded that the defendant does not meet the DSM IV criteria for substance abuse or dependence. Specifically, he reportedly only uses marijuana on weekends and cocaine in social settings, and he tested positive only for marijuana.

Moreover, he has none of the psycho-social indicators of substance abuse or dependence. He, for example, reportedly has resided with his father in a stable home at the above address for over five years, has a high school diploma and worked as an ER Technician at Cabrini Hospital for seven years until it closed about a year ago. Although he claims to have attended an outpatient substance abuse program for a few months in 1997, he could not remember the name of the program. Upon receipt of the evaluation report, the defendant requested to be heard on whether he should be offered alcohol or substance abuse treatment pursuant to CPL Article 216.

On 28 January 2010, the People, the defendant, and his attorney all had an opportunity to be heard. In support of his request for diversion, the defendant submitted an evaluation report prepared by A, who was also present in court. A stated that the defendant’s primary drug of choice is marijuana but that he had used cocaine intermittently over a long period of time. In his written report A wrote, defendant is currently drinking at least 2 or 3 12 ounce beers daily and using cocaine and marijuana in variable amounts intermittently, and concluded that significant changes in social activities and time pursuing drugs due to chemical dependence resulted in the defendant’s arrest for drug possession. Based on the foregoing, the defendant argued that he is appropriate for diversion into drug treatment.

The Drug Law Reform Act in December 2004 was enacted. It significantly reformed the Rockefeller Drug Laws. The legislators who supported the new statute identified those deserving of more lenient treatment as low-level, non-violent drug offenders, first-time offenders who were misguided in their youth and addicts driven to possession or selling drugs because of a drug habit as held in People v. LaFontaine. In April 2009, the Legislature passed into law The Drug Law Reform Act of 2009, which expanded upon the 2004 DLRA and created CPL Article 216, entitled “Judicial Diversion Program for Certain Felony Offenders”. A review of state legislators’ descriptions of the judicial diversion program clearly indicates that their intent was to expand treatment alternatives for non-violent drug abusers.

The court observed that 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 (CPL Article 216). The purpose of diversion of such defendants to substance abuse treatment is that once drug abuse is overcome, the criminal behavior will also stop. Where a defendant’s criminal behavior is motivated by greed or profit, rather than a need to obtain money to purchase drugs for immediate use, drug treatment will not result in a cessation of the behavior.

In the case at bar, the defendant is alleged to have been in possession of a large quantity of cocaine, a drug that he claims to be addicted to but for which he did not test positive, $675, a scale, and ammunition. Based on these allegations, even if his claim of alcohol and substance dependence was to be credited, the Court is not persuaded that such dependence is a contributing factor to his criminal behavior. The allegations are not indicative of the kind of criminal behavior that results from substance abuse or dependence.

Accordingly, having considered all of the arguments presented, pursuant to CPL § 216.05(3)(b), the Court makes the following findings of fact: the defendant is an eligible defendant as defined in CPL § 216.00(1), who may have a history of alcohol or substance abuse; however, any such abuse or dependence is not a contributing factor to his criminal behavior.

Based on the foregoing, the court finds that the defendant should not be offered diversion for treatment.

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