People v. DeYoung

• Decision Date: 20 March 2012
• Citation: 2012 N.Y. Slip Op. 02112,940 N.Y.S.2d 306,95 A.D.3d 71
• Parties: The PEOPLE, etc., respondent, v. Charles DeYOUNG, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02112

940 N.Y.S.2d 306

95 A.D.3d 71

The PEOPLE, etc., respondent,

v.Charles DeYOUNG, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 20, 2012.

Warren Redlich, Albany, N.Y., for appellant.

Francis D. Phillips II, District Attorney, Middletown, N.Y. (Elizabeth L. Guinup and Andrew R. Kass of counsel), for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and PLUMMER E. LOTT, JJ.

LOTT, J.

On this appeal, the defendant contends that the County Court improperly denied his application to participate in judicial diversion pursuant to CPL article 216, which was enacted as part of the Drug Law Reform Act of 2009 ( see L. 2009, ch. 56, § 4). We agree, as the record does not support the County Court's finding that the defendant's alcohol and substance abuse and dependence were not contributing factors to his criminal behavior.

Legal Background

“CPL article 216, included in the Drug Law Reform Act of 2009, is part of the latest effort by the Legislature to encourage courts and prosecutors to consider placing individuals who commit certain felony narcotics possession and sale crimes in order to financially support their drug or alcohol addictions into a substance abuse program, rather than sending them to jail. The Drug [Law] Reform Act of 2004, a precursor to CPL article 216, was ... enacted, in part, to provide for shorter sentence[s] for addicted individuals who sell drugs to support their addiction. In 2009, the Legislature entrusted the Judiciary with the power to not only impose much lower, and sometimes even nonincarceratory sentences in felony cases in which addicts have been convicted of selling [or possessing] narcotics, but also ‘diverting’ these individuals from any prison sentence, and placing them into treatment, without first obtaining the prosecutor's consent” ( People v. Jordan, 28 Misc.3d 708, 713, 902 N.Y.S.2d 336 [citations omitted] ).

Pursuant to CPL article 216, at any time after the arraignment of an “eligible defendant,” but prior to the entry of a plea of guilty or the commencement of trial, a court, at the request of an eligible defendant, may order an “alcohol and substance abuse evaluation” (CPL 216.05[1] ). An “[e]ligible defendant” is defined as any person who stands charged in an indictment or superior court information with a class B, C, D, or E felony offense defined in Penal Law article 220 or 221 or any other specified offense defined in CPL 410.91, subject to certain exceptions for defendants previously convicted of or currently charged with violent crimes (CPL 216.00 [1] ). The “[a]lcohol and substance abuse evaluation” shall include an evaluation as to whether the defendant has a history of alcohol or substance abuse or dependence and a co-occurring mental disorder or mental illness, and a recommendation as to whether the defendant's alcohol or substance abuse or dependence, if any, could be effectively addressed by judicial diversion in accordance with CPL article 216 (CPL 216.00[2] ).

Upon receipt of the completed alcohol and substance abuse evaluation report, either party may request a hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment pursuant to CPL article 216 ( see CPL 216.05[3][a] ). Upon the completion of such a proceeding, the court

“shall consider and make findings of fact with respect to whether: (i) the defendant is an eligible defendant as defined in subdivision one of section 216.00 of this article; (ii) the defendant has a history of alcohol or substance abuse or dependence; (iii) such alcohol or substance abuse or dependence is a contributing factor to the defendant's criminal behavior; (iv) the defendant's participation in judicial diversion could effectively address such abuse or dependence; and (v) institutional confinement of the defendant is or may not be necessary for the protection of the public” (CPL 216.05[3] [b] ).

“When an authorized court determines, pursuant to [CPL 216.05(3)(b) ], that an eligible defendant should be offered alcohol or substance abuse treatment, or when the parties and the court agree to an eligible defendant's participation in alcohol or substance abuse treatment, an eligible defendant may be allowed to participate in the judicial diversion program offered by [article 216]. Prior to the court's issuing an order granting judicial diversion, the eligible defendant shall be required to enter a plea of guilty to the charge or charges; provided, however, that no such guilty plea shall be required when: (a) the people and the court consent to the entry of such order without a plea of guilty; or (b) based on a finding of exceptional circumstances, the court determines that a plea of guilty shall not be required” (CPL 216.05[4] ).

Upon the court's determination that the defendant has successfully completed the judicial diversion program,

“the court shall comply with the terms and conditions it set for final disposition when it accepted the defendant's agreement to participate in the judicial diversion program. Such disposition may include, but is not limited to: (a) requiring the defendant to undergo a period of interim probation supervision and, upon the defendant's successful completion of the interim probation supervision term ... permitting the defendant to withdraw his or her guilty plea and dismissing the indictment; or (b) requiring the defendant to undergo a period of interim probation supervision and, upon successful completion of the interim probation supervision term ... permitting the defendant to withdraw his or her guilty plea, enter a guilty plea to a misdemeanor offense and sentencing the defendant as promised in the plea agreement, which may include a period of probation supervision pursuant to section 65.00 of the penal law; or (c) allowing the defendant to withdraw his or her guilty plea and dismissing the indictment” (CPL 216.05[10] ).

Factual and Procedural Background

The defendant was charged with criminal possession of marijuana in the first degree in violation of Penal Law § 221.30, a class C felony. In an order dated February 4, 2010, the County Court granted the defendant's request pursuant to CPL 216.05(1) for an alcohol and substance abuse evaluation.

Pursuant to the County Court's order, Forrest Hutchinson, a certified alcohol and substance abuse counselor, completed an evaluation of the defendant on February 11, 2010. The evaluation noted that the defendant, who was then 36 years old, began drinking alcohol at the age of 12 and using marijuana at the age of 13. He was a daily drinker until his discharge from the Army at the age of 26, after which he became a daily marijuana user. After cutting down on the frequency of his marijuana use following his arrest, the defendant described current withdrawal symptoms. He returned to daily alcohol use after his arrest, consuming 10 drinks per day. The defendant also had been using prescription opiate pain medication once or twice per week for the previous five years. The defendant had never received substance abuse treatment, but he was receiving mental health treatment for depression symptoms. In the “Conclusions” section of his evaluation, Hutchinson wrote:

“[The defendant] describes symptoms consistent with a diagnosis of cannabis dependence with a history of alcohol dependence and opiate abuse. [He] reports that he was paid $5,000 to facilitate the transfer of cannabis from California to New York. He reports three such occasions and having been paid for the first two trips as the last time he was arrested before receiving payment. [The defendant] acknowledges that the money he was paid was used to cover expenses beyond just his cannabis and alcohol addictions. It should be noted that [the defendant] reports that the person he says he was working for was also a person he met through his cannabis dependent lifestyle. What is paramount to the Evaluator is that [the defendant's] admitted criminal act was for the purpose of financial gain rather than for funding his cannabis and alcohol dependence and his criminal activities are deemed by the evaluator as beyond the intention of CPL 216.”

In a letter to the County Court dated March 3, 2010, the defendant's attorney, inter alia, requested a hearing on the issue of whether the defendant should be offered alcohol or substance abuse treatment pursuant to CPL 216.05(3)(a). In support, he submitted a letter from Michael V. Ellis, a psychologist, dated November 24, 2009, and a letter from Gale Siegel, a licenced clinical social worker with the United States Department of Veterans Affairs, dated March 1, 2010. Dr. Ellis, who had conducted a psychological evaluation of the defendant at the request of the defendant's counsel, wrote that he had recommended a comprehensive treatment protocol for cannabis dependence and polysubstance abuse and a psychiatric evaluation for possible medication of anxiety and mood disorders. Dr. Ellis further noted that he had referred the defendant to a local Veterans Administration Hospital for this purpose, and that the defendant agreed to follow through on this recommendation. Siegel wrote in her letter that the defendant was an active patient at the clinic in which she worked, had attended all scheduled appointments, and had been compliant with all directives. Siegel stated that the defendant acknowledged his cannabis dependence, wished to end it, and would participate actively in treatment to that end.

A hearing was conducted on April 16, 2010. At the hearing, Hutchinson's testimony was consistent with his written evaluation. Hutchinson stated that treatment “[a]bsolutely” could help the defendant's substance abuse and/or dependence, but stated that he had no opinion as to whether judicial diversion might help the defendant's treatment. Hutchinson did opine that institutional confinement of the defendant was not required. Hutchinson also...