JUDICIAL DIVERSION FOR DRUG RELATED OFFENSES

Drug-related offenses are the most prevalent offenses for which incarceration is imposed in the United States judicial system. The seriousness of drug offenses ranges from a mere violation for marijuana possession up to a class “A” felony for a certain amount or type of drug or both.

Through research, advocacy by the medical community, and public perception, the handling of drug offenses has evolved from strictly prosecution and incarceration to treatment alternatives to incarceration. As a result there is been a proliferation in the use of treatment court programs.

In advocating for the 2009 drug law reform act Gov. Paterson’s signing statement asserted that: “We are reforming these laws to treat those who suffer from addiction and to punish those who profit from it. But to be successful we must not only overhaul the drug laws, it must also provide an infrastructure to ensure that we successfully rehabilitate those who are addicted with programs like this one at Elmcor which exemplifies our approach to focus on treatment rather than punishment.”

In 2009 the legislature passed the “drug law reform act” amending applicable sections of the criminal procedure Law (CPL) and statutorily providing for various treatment alternatives to incarceration. CPL §216.00(1) provides that any person charged with a class B, C, D, or E felony offense listed in penal law article 220 or 221 or an offense listed in CPL §410.91(4)(Willard offenses) is eligible to participate in judicial diversion.

There are various exceptions to eligibility which must be determined by the defense attorney, prosecutor, and court in each case. In appropriate cases counsel should consider requesting an evaluation and ask that the case be transferred to a court that has been designated under the local OCA administration for implementation as a Superior Court for drug treatment.

Rules of the chief administrative judge §143(2)(c) states that: “where a Superior Court orders an alcohol and substance abuse evaluation pursuant to CPL §216.05 to determine whether the defendant should be offered judicial diversion for alcohol and substance abuse treatment under article 216, the case shall be referred to for further proceedings to: (1) the Superior Court for drug treatment or (2) any other part in Superior Court designated as a drug treatment court part by the administrative judge…” If the person does not enter judicial diversion, the case can be adjourned to any part designated by the administrative judge.”

In certain cases the District Attorney’s Office may try to argue against a client’s eligibility for judicial diversion. For example in certain drug sale cases the District Attorney may argue that the client does not have a “drug use” problem. Knowing the appropriate policy arguments, applicable case law, and statutory factors to argue against such a position requires extensive practice in this area of law. Also knowing the factors to be considered at an eligibility hearing pursuant CPL §216.00(3)(a)-(b) is just as important.

In many cases utilizing a judicial diversion program or other treatment based court can result in a more favorable disposition and avoid a lengthy sentence of incarceration. The ability to succeed in such programs is dependent on a client’s willingness to actively engage in treatment and abstain from the use of all illicit substances.

If you have been charged with a drug offense contact attorney Jason C. Henskee, Esq. to discuss your options and receive a free review of your case.

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