People v. C.D.B.

Citation2022 NY Slip Op 22152
Decision Date05 April 2022
Docket NumberNo. CR-010518-20KN,CR-010518-20KN
PartiesThe People of the State of New York, v. C.D.B., Defendant.
CourtNew York Criminal Court

2022 NY Slip Op 22152

The People of the State of New York,
v.

C.D.B., Defendant.

No. CR-010518-20KN

Criminal Court of City of New York, Kings County

April 5, 2022


For the Defendant: Lucy Rose Gubernick; Staff Attorney Legal Aid Society;

For the People: Felix De Jesus; Assistant District Attorney Kings County District Attorney's Office;

Adam D. Perlmutter, J.

The case stems from an accident with minor injuries to another driver on May 17, 2020. [1] According to the complaint, Police Officer Jeffrey Rosa found C.D.B. in the seat of a 2017 Nissan Sentra, with the keys in the ignition, and the engine running. The complaint alleges that C.D.B. admitted to driving the vehicle, and according to Officer Rosa, he also exhibited signs of alcohol intoxication, namely, slurred speech, bloodshot and watery eyes, the odor of alcohol on his breath, and an unsteady gait. Officer Rosa further states that C.D.B. consented to a chemical test of his breath, yielding an alleged blood alcohol concentration of.22%. C.D.B. was charged, inter alia, with aggravated operation of a motor vehicle while intoxicated, in violation of VTL §1192(2-a)(a), an unclassified misdemeanor. Now a 32-year-old, African American male, C.D.B.'s May 17, 2020 arrest represented his first contact with the criminal justice system.

C.D.B. entered alcohol treatment in July 2020 and transferred to a second program in November 2020. His reports from treatment showed regular attendance and negative toxicology screenings for alcohol and other substances.

On November 10, 2020, the Court rejected the People's offer that C.D.B. enter a conditional plea pending confirmation that: (a) the victim's injuries were minor; and (b) the victim consented to the proposed disposition. [2] See Transcript of Proceedings, dated November 10, 2020. Thereafter, on December 10, 2020, following the People confirming the victim's condition and consent, C.D.B. entered a conditional plea to the VTL §1192(2-a)(a) charge, as well as to operating a motor vehicle while impaired by alcohol in violation of VTL §1192(1), a traffic infraction.

The conditions of C.D.B.'s plea required successful completion of a minimum of 6 months treatment by a counselor certified by the New York State Office of Alcohol and Substance Abuse Services, wearing a secure continuous remote alcohol monitoring ("SCRAM") ankle bracelet for 90 days, completing the 6-hour Driver Improvement Program, and the 2-hour Victim Impact Panel ("VIP") program offered through Mothers Against Drunk Driving. At the VIP program, C.D.B. would meet with victims (and the families of deceased victims) of drunk driving accidents. A further requirement of C.D.B.'s conditional plea was that he live a law-abiding life, including no new arrests. See Plea Transcript of December 10, 2020.

C.D.B. had lost his job working as a delivery driver because of his arrest, but he found new work in construction. By the first post-plea compliance conference, on March 24, 2021, C.D.B. had successfully completed the 90 days of SCRAM monitoring and the VIP program. C.D.B. paid out-of-pocket $1, 440 for the SCRAM ankle bracelet and an additional $100 for the VIP program.

At the March 24, 2021 appearance, however, the Court learned that C.D.B. had been re-arrested in Kings County for a new drunk driving case. Specifically, according to the complaint in that matter, on March 18, 2021, a patrol officer stopped C.D.B., after being alerted by the sound of screeching tires. C.D.B. allegedly rear-ended a vehicle; fled the scene; and had the odor of alcohol on his breath, slurred speech, and watery eyes. This time, C.D.B. refused to consent to a chemical test of his breath. This arrest was now C.D.B.'s second contact with the criminal justice system.

Upon learning of the re-arrest, the Court ordered that the voiding of C.D.B.'s conditional plea be held in abeyance and requested the Department of Probation to prepare a presentence report ("PSR"). See Transcript of Proceedings, dated March 24, 2021. Thereafter, Probation prepared a detailed PSR documenting childhood trauma suffered by C.D.B. Probation believed C.D.B.'s trauma was relevant to understanding his conduct both in the instant case and his re-arrest.

Considering this disclosure, and subsequent actions by C.D.B., described in further detail herein, the issue now before this Court is whether to void his original conditional plea. For the reasons stated herein, after reviewing all the underlying materials in the instant case, and, after discussions with Probation, the People, and the defense, including C.D.B., the Court finds that C.D.B. has earned the benefit of his conditional plea because of his proactive engagement in treatment prior to and after his re-arrest, including treatment with Eye Movement Desensitization Reprocessing ("EMDR") described herein.

DISCUSSION

A. Childhood

As reported in the PSR, C.D.B. was born on January XX, 19XX, in Brooklyn, New York to P.E.B. and H.D. PSR at 4. [3] C.D.B.'s parents never lived together, and he had little contact with his father, seeing him once every three to four years. Id.

Throughout his childhood, C.D.B. reports being emotionally and physically abused by his mother's friends. They told him that he was "no good" and that he would "amount to nothing." Id. Both of C.D.B's parents struggled with alcoholism and did nothing to intervene or protect their son from abuse. PSR at 6. Over the years, C.D.B. would find himself hiding at the home of other family members to avoid the continued abuse he experienced at the hands of his mother's friends. Id.

B. Mental Health and Substance Abuse History

According to the PSR, C.D.B. suffers from depression, anxiety, and post-traumatic stress disorder ("PTSD"), which he has self-medicated as an adult using alcohol and marijuana. PSR at 6. C.D.B. reports beginning to abuse alcohol at age 19, using it weekly to "avoid painful memories." Id.

In 2014, C.D.B. began experiencing alcohol-induced auditory and visual hallucinations, leading to his admission at a hospital. PSR at 5. Doctors prescribed Haldol to C.D.B., an antipsychotic medication that is used to treat schizophrenia. He was released from the hospital after three days when his mother signed him out. Id.

C.D.B. responded poorly to Haldol, unable to tolerate the severe side effects, including dizziness, lightheadedness, drowsiness, headache, sleep disturbance, and anxiety. PSR at 5. After being discharged from the hospital, C.D.B. voluntarily enrolled himself at a treatment center for alcohol treatment. He did not inform his counselors, however, about his childhood trauma.

Over the next few years, C.D.B. was in and out of mental health treatment, although he had no contact with the criminal justice system. In 2017, he was briefly admitted to a hospital's psychiatric ward.

After his first arrest, the instant case, in July 2020, C.D.B. enrolled in alcohol treatment at a substance abuse program. During the intake process, that provider determined, after a mental health evaluation, that C.D.B. needed no psychiatric medications. In November 2020, approximately five months after his arrest in the present case, C.D.B. switched his treatment to another recovery services program and was referred to a higher level of care due to concerns regarding his mental health. Then, on May 13, 2021, C.D.B. enrolled in another outpatient program. He has continued since that time to attend this program twice a week for individual and group counseling sessions. C.D.B. has consistently attended this program with negative toxicology results in this random screenings.

C. Trauma-focused Treatment

Following review of the PSR, the Court contacted the Department of Probation concerning services available for addressing C.D.B.'s childhood trauma. Both the Court and Probation believed that C.D.B.'s alcohol abuse, conduct in the present case, as well as his alleged conduct in the new matter, were interrelated. Specifically, the Court asked whether the Department of Probation could secure EMDR services for C.D.B.

The assigned Probation Officer said she had no familiarity with EMDR, but after conducting due diligence, responded that the Probation Department could refer C.D.B. for EMDR treatment as part of any probationary sentence. The Legal Aid Society, who represents C.D.B., embraced C.D.B. receiving EMDR treatment, independently contracted with a trained service provider, and requested that the Court continue to hold voiding C.D.B.'s conditional plea in abeyance pending review of his progress with that practitioner.

1. EMDR Therapy

EMDR therapy was first developed in 1987 to treat trauma, including PTSD. See Blackburn v United States, 2021 App. LEXIS 21268, at *4, n1 (10th Cir July 19, 2021) citing Francine Shapiro, EMDR Therapy: Basic Principles, Protocols, and Procedures, at 1-7 (3d ed. 2018); Francine Shapiro, EMDR: The Breakthrough Eye Movement Therapy for Overcoming Anxiety, Stress, and Trauma (New York: Basic Books, 2004). EMDR therapy is "an eye movement retraining type of therapy in which an individual learns to do specific eye motions in order to relax." See JS v State Dept of Corr Servs, 2011 Neb.App. LEXIS 29, at *13 (Ct App Mar 1, 2011).

Courts across the country have recognized EMDR as highly effective at treating individuals suffering from PTSD resulting from sexual assault. See e.g., Bailey v State, 2007 TexApp LEXIS 208, at *1 (Texas Ct App, Jan 11, 2007); Riniker v Berryhill, 2018 U.S. Dist LEXIS 53912, at *2 (ND Iowa, Mar 30, 2018); US v DWB, 74 MJ 630 (N-M Ct Crim App 2015). This Court is unaware of any prior New York criminal defendant undergoing EMDR as part of a mandated treatment protocol, nor is this Court aware of any prior published or unpublished New York state case discussing EMDR in any context.

Although the admission of expert testimony on EMDR in the present case in not...

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