People v. Attaway

• Decision Date: 03 August 2016
• Citation: 36 N.Y.S.3d 380,53 Misc. 3d 435
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Noah ATTAWAY, Defendant.
• Court: New York County Court

53 Misc.3d 435

36 N.Y.S.3d 380

The PEOPLE of the State of New York, Plaintiff,

v.Noah ATTAWAY, Defendant.

County Court, Cayuga County, New York.

Aug. 3, 2016.

Jon E. Budelmann, Cayuga County District Attorney by Nathan J. Garland, Esq., Auburn.

Charles M. Thomas, Esq., Auburn, attorney for the defendant.

AMENDED DECISION and ORDER

McKEON, MICHAEL F., J.

Defendant was arrested on or about November 26, 2015, and arraigned on multiple charges that occurred in three Cayuga County towns and villages. After waiving indictment, defendant was charged by Superior Court Information (SCI) with burglary in the third degree, grand larceny in the third degree, unlawfully fleeing a police officer in a motor vehicle in the third degree and reckless driving. In a March 23, 2016, letter to County Court Judge Thomas G. Leone, defendant's counsel requested that defendant be considered for judicial diversion.

Defendant was arraigned on the SCI on March 24, 2016, and the matter was transferred to this Court for judicial diversion consideration on the same day.

An alcohol and substance abuse evaluation was performed on defendant by Confidential Help for Alcohol and Drugs (CHAD) on January 27, 2016, finding defendant to be chemically dependent. Following his request for judicial diversion, defendant was assessed by Resource Coordinator Marcie Pennella. Ms. Pennella, in a memo dated April 14, 2016, determined that defendant was chemically dependent and met the qualifications for the judicial diversion program. A judicial diversion hearing was held on May 3, 2016. The Court heard arguments from counsel as well as informal testimony from defendant.

The People oppose diversion in this matter. They argue that defendant is ineligible for diversion under Criminal Procedure Law § 216(1)(a) as he has a prior out-of-state felony conviction within the past ten years and said felony qualifies as a violent felony under New York State law.

Prior to moving to New York State almost two years ago, defendant resided in California, the state where he was born. On July 5, 2013, he was arrested in California on three charges following a domestic-related incident. Following a plea of guilty, defendant was convicted of violating California Penal Code § 29800(a)(1),¹ possession of a firearm by a felon, and sentenced in July 2013 to a term of incarceration of two years in prison. At the time of his arrest, defendant had a criminal history that included prior misdemeanor and felony convictions.

The initial question before the Court is whether defendant's conviction of California Penal Code § 29800(a)(1), a felony, makes him ineligible for judicial diversion. Criminal Procedure Law § 216(1)(a) renders a defendant ineligible to participate in judicial diversion when the defendant has been convicted of a violent felony offense as defined in section 70.02 of the Penal Law within the preceding ten years, unless the prosecutor consents. According to the People, defendant's 2013 California conviction precludes his participation in the judicial diversion program.

Defendant argues that Criminal Procedure Law § 216(1)(a) only contemplates prior violent felonies that occurred in New York, not out-of-state violent felony convictions. The parties correctly note that Criminal Procedure Law § 216(1)(a) is silent on the issue, merely defining a violent felony offense as one defined in section 70.02 of the Penal Law without any reference to similar offenses in other jurisdictions. According to defendant, other laws specify the inclusion of out-of-state convictions, such as Penal Law § 70.04 (1)(b)(i), which includes convictions in other jurisdictions for purposes of determining whether a prior conviction is a predicate violent felony offense. Given that, defendant argues, the omission of other jurisdictions in Criminal Procedure Law § 216(1)(a) demonstrates the Legislature's intent to not consider out-of-state convictions in determining eligibility for judicial diversion. This issue appears to be one of first impression.

Article 216 of the Criminal Procedure Law was enacted in 2009 as part of the amendments to the 2004 Drug Law Reform Act (DLRA). The DLRA of 2004 "is a remedial statute, allowing low-level, nonviolent drug offenders who meet various basic eligibility requirements and who were originally sentenced under legislation that often mandated inordinately harsh punishment' to apply for resentencing" ( People v. Smith, 139 A.D.3d 131, 30 N.Y.S.3d 19 (1st Dept.2016) ). Criminal Procedure Law §§ 216 and 216.05 were included in the 2009 amendments, providing certain eligible nonviolent defendants the opportunity to be offered judicial diversion for substance abuse treatment, avoiding a prison sentence and, possibly, receiving a reduction or even a dismissal of the charges (see CPL §§ 216, 216.05 ).

"[I]n matters of statutory interpretation, [the] primary consideration is to discern and give effect to the Legislature's intention" ( People v. Thompson, 26 N.Y.3d 678, 27 N.Y.S.3d 425, 47 N.E.3d 704 (2016) (internal quotations omitted)). "[W]hen the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of the words used" ( People v. Williams, 19 N.Y.3d 100, 945 N.Y.S.2d 629, 968 N.E.2d 983 (2012) (internal quotations omitted)). Thus, a court's role is to start with the language itself, "giving effect to the plain meaning thereof" ( Majewski v. Broadalbin–Perth Central School District, 91 N.Y.2d 577, 673 N.Y.S.2d 966, 696 N.E.2d 978 (1998) (internal quotation marks omitted)).

While at first glance it might seem that the reference to only violent felony offenses as defined in § 70.02 of the Penal Law is clear, the contradictory nature of the statute requires the Court to delve further into its meaning (see generally Majewski, 91 N.Y.2d at 583, 673 N.Y.S.2d 966, 696 N.E.2d 978 ). A statute "must be construed as a whole and ... its various sections must be considered together and with reference to each other" ( Matter of Shannon, 25 N.Y.3d 345, 12 N.Y.S.3d 600, 34 N.E.3d 351 (2015) (internal quotations omitted)).

As the People point out, the Court of Appeals was faced with a similar issue in People v. Yusuf, 19 N.Y.3d 314, 947 N.Y.S.2d 399, 970 N.E.2d 422 (2012). In Yusuf, the court addressed whether an out-of-state felony could qualify as a violent felony for purposes of enhanced sentencing under Penal Law § 70.70(4). Like Criminal Procedure Law § 216(1)(a), Penal Law § 70.70(1)(c) defines a "violent felony" as having the same meaning as the term is defined in Penal Law § 70.02(1), without reference to out-of-state convictions. The Yusuf court looked carefully at the plain meaning of the statute and held that "the Legislature meant for prosecutors and sentencing courts to take foreign violent felony convictions into account when determining a defendant's sentencing status, notwithstanding the ambiguity created by the reference in section 70.70(1)(c) to Penal Law § 70.02" ( Yusuf, 19 N.Y.3d at 320, 947 N.Y.S.2d 399, 970 N.E.2d 422 ). In arriving at its conclusion, the Court of Appeals considered the fact that Penal Law § 70.70(4) cross references Criminal Procedure Law § 400.21, which includes out-of-state violent felony convictions when adjudicating a defendant a second felony offender (see Yusuf, 19 N.Y.3d at 319, 947 N.Y.S.2d 399, 970 N.E.2d 422 ).

In addition to excluding defendants who, within the preceding ten years, had been convicted of a violent felony offense as defined in section 70.02 of the Penal Law, the judicial diversion statute also excludes those offenders who have previously been adjudicated a second violent felony offender pursuant to section 70.04 of the Penal Law or a persistent violent felony offender pursuant to section 70.08 of the Penal Law (see Criminal Procedure Law § 216(1)(b)). Section 70.04 of the Penal Law includes out-of-state violent felony offenders for purposes of determining whether a prior conviction is a predicate violent felony conviction, and is incorporated by reference in Penal Law § 70.08 as well (see Penal Law §§ 70.04(1)(b)(i), 70.08(1) ). Although the analysis in Yusuf may be more readily followed when considering Penal Law § 70.70(1)(c) as compared to Criminal Procedure Law § 216(1)(a), the underlying theme is the same. As the court in Yusuf stated, "our view of [the statute] is consistent with the Legislature's general sentencing design for recidivist offenders; specifically, article 70 is replete with provisions directing the use of foreign convictions as predicate offenses for purposes of enhancing sentences" ( Yusuf, 19 N.Y.3d at 321, 947 N.Y.S.2d 399, 970 N.E.2d 422 ).

By comparison, the Court of Appeals in People v. Golo, 26 N.Y.3d 358, 23 N.Y.S.3d 110, 44 N.E.3d 185 (2015), held that where the wording of a statute has caused an unintended consequence, "it is up to the legislature to correct it" ( People v. Golo, 26 N.Y.3d 358, 362, 23 N.Y.S.3d 110, 44 N.E.3d 185 (2015) ). In Golo, the Court was faced with the question of whether, for resentencing purposes, an "exclusion offense" under the 2009 DLRA included violent felony offenses that occurred after, rather than prior to, the offense a defendant sought to be resentenced for ( Golo, 26 N.Y.3d at 360, 23 N.Y.S.3d 110, 44 N.E.3d 185 ). Despite recognizing the " seeming anomaly" of treating a violent felony that occurred after the drug offense differently than one that occurred before, the Court was guided by the plain meaning of the statute, which clearly referenced a "previous" felony (see id., at 361–362, 23 N.Y.S.3d 110, 44 N.E.3d 185 ). Such clarity is absent from Criminal Procedure Law § 216(1)(a), however, leaving this Court to dive deeper into the legislative intent as discussed above.

The quandary here is that while the purpose of the DLRA was to undue the harsh punishments of the Rockefeller Drug Laws and, thus, relieve offenders of such strict laws, it also placed its focus on low-level, nonviolent offenders, a...