People v. Rafaniello

• Decision Date: 03 May 2016
• Docket Number: No. 5266/14.,5266/14.
• Parties: The PEOPLE of the State of New York v. Rocco RAFANIELLO, Defendant.
• Court: New York Supreme Court

41 N.Y.S.3d 451 (Table)

The PEOPLE of the State of New York
v.
Rocco RAFANIELLO, Defendant.

No. 5266/14.

Supreme Court, New York County, New York.

May 3, 2016.

ADA Amy Boddorff, Office of the Special Narcotics Prosecutor, New York, for the People.

David A. Smiley, Esq., The Legal Aid Society, New York, for the Defendant.

RICHARD M. WEINBERG, J.

Defendant has been charged in an indictment with two counts of the B felony of Criminal Sale of a Controlled Substance in the Third Degree (PL § 220.39[1] ) based upon the sale of heroin to an undercover police officer on two separate occasions. The People have consented to the defendant's entry into Judicial Diversion. Defendant now also seeks to participate in Judicial Diversion without the prior entry of a guilty plea pursuant to CPL § 216.05(4)(b). While the People do not oppose the defendant's application to enter Diversion, they do oppose defendant's application to enter Diversion without first pleading guilty.

Consistent with the Diversion statute (CPL § 216.05 ), a defendant who is granted Judicial Diversion by this Court pleads guilty to a felony and signs a Drug Court plea agreement. Sentence is deferred and the Court monitors the defendant's compliance and success in treatment. If defendant successfully completes the program, the plea is withdrawn and the case is dismissed. If defendant fails in the program or is rearrested, under the plea agreement, he may be sentenced to a predetermined prison sentence (CPL § 216.05[9][c] ).

In a rare case where the Court finds the existence of exceptional circumstances, CPL § 216.05(4)(b) permits a defendant to participate in Judicial Diversion without the entry of a guilty plea. Under this statute, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe collateral consequences.

Defendant, a lawful permanent resident of this country, argues that the no-plea provision of the Diversion statute should apply to him because, as a non-citizen, a plea to the charge in the indictment would make him deportable. He essentially argues that the possibility of deportation resulting from a plea is, in his case, a severe collateral consequence and that this qualifies as an exceptional circumstance under the statute.

This Court has previously written on this issue. See People v. Radonich, 49 Misc.3d 1212A and People v. Brignolle, 41 Misc.3d 949. As stated in both Radonich and Brignolle and re-iterated here, the possibility of deportation for a non-citizen does not, in and of itself, require a per se finding of exceptional circumstances and the attendant entry into Diversion without a plea. To do so would create a two-tiered system which would require someone born in the United States to enter a guilty plea prior to entering into Diversion while granting a non-citizen the more favorable status of entering into Diversion without first pleading guilty. Whether exceptional circumstances exist must be determined on a case by case basis.

In the Brignolle case, the Court...