On December 23, 2005, the Defendant was charged with the Class A Misdemeanor of Criminal Possession of Controlled Substance 7th Degree, under Penal Law 220.03. It was alleged that cocaine was found in a cigarette package within the Defendant's purse when the purse was turned over to the City Police as lost property. The defendant was arraigned on January 6, 2006, requested the assignment of counsel, and attorney Allan Cruikshank was assigned to represent her.

By Plea Offer dated January 19, 2006, the District Attorney offered "Plea to the Charge" with recommended sentence of a fine and 3 years on probation. That offer was rejected at a January 19 Court appearance; defendant's attorney said that the defendant may get a substance abuse evaluation, and that there may be legal issues in the case. The case was adjourned to 2/7/06, and the defendant did not appear. It was adjourned to 2/14/06, when defense counsel said that defendant was not present because her grandmother had died. It was adjourned to 3/3/06 in front of Judge Rogers, again the defendant did not appear. It was adjourned to 3/6/06 or a bench warrant would be issued. On 3/6, neither the defendant nor defense counsel appeared; it was adjourned one day or there would be a bench warrant. On 3/7/06 the defendant appeared, but arrived late. She said she had not had a substance abuse assessment.

The case was scheduled for a Pre-Trial Conference on April 13. At the Pre-Trial Conference, the defendant said she was admitted to Conifer Park Outpatient on 4/3. She and her attorney requested that the case be Adjourned in Contemplation of Dismissal on the condition that she comply with all treatment recommendations. Because of her lack of follow-through, the Court and DA did not agree then, but did agree to adjourn the case for approximately two months to see how she was doing. We stated that, if she was in full compliance on the next Court date of June 7, then an ACD would be granted.

On 6/7/06, defense counsel appeared, but not the defendant. Counsel said that she [*2]was with her dying sister. The case was adjourned to June 22 for the defendant's appearance and to obtain a report from Conifer Park. The defendant appeared in Court on June 22, 2006. She reported that she attended Conifer Park groups twice a week and individual sessions once per week. She and her attorney again asked for an ACD to be granted on the condition that she fully comply with all treatment recommendations. The ACD was granted on those conditions on June 22, with the consent of the defendant, her attorney, the prosecution and the Court.

On July 10, 2006, Conifer Park sent a letter to the defendant stating that "you have missed several treatment sessions." On July 26, 2006, they sent a letter to the Court and the defendant's attorney Cruikshank advising that she had been "discharged from treatment on June 20, 2006, due to non-compliance with treatment." Thus, for more than a month, the Court believed that the Defendant was in treatment, when she had stopped attending two days before obtaining the ACD. On 7/26/06, the Court sent a letter to the defendant at her Schuyler Falls Post Office Box directing her to appear in City Court on August 3, 2006 because of "Violation of ACD."

On 8/3/06 the Defendant appeared before Judge Rogers and he adjourned it to 8/11/06 for follow-up. On 8/11 the defendant appeared with attorney Cruikshank, and explained to the Court that she had stopped treatment when she was done in Court; she said it was a "misunderstanding." She said she would return to Conifer Park. The case was adjourned to 8/25/06, when the defendant and counsel appeared, and informed the Court that she would be starting back at Conifer Park that Saturday. The court agreed to adjourn one month for a written update from Conifer Park.

The scheduled 9/29/06 Court date was adjourned by attorney Cruikshank to 10/5/06. On 10/5, Mr. Cruikshank appeared but no defendant. At his request, the case was adjourned to 10/27 for confirmation of defendant's follow-up with treatment. On 10/27/06, the defendant appeared with counsel and said that she was not going to treatment because of the cost. When asked by the Court whether she inquired of the other two treatment agencies concerning their cost, she said she had not. The case was adjourned to 11/3/06 for the defendant to decide whether she wished to have a jury trial. If she chose to do so, everyone was notified that the trial would be on November 17, 2006.

On 11/3/06, the defendant appeared, but not defense counsel. She said she was back in treatment at Conifer Park, and that her mother would help her pay. The case was adjourned to 11/14 to be sure that she was in treatment and to have her attorney appear. Both appeared the day before on 11/13/06. The Court received a written confirmation report from Conifer Park on that date, confirming that the defendant was admitted for treatment on 9/21/06 and that she was complying well. Although the first ACD was granted on June 22, 2006, participation in treatment did not begin until September 21, 2006. The People and the Court said they were satisfied and would agree to an ACD with the treatment condition. The ACD was granted on November 13, 2006.

On February 1, 2007 Conifer Park sent a letter to the Court stating that "Julie Gagnier was discharged from treatment due to her lack of attendance, Julie was also unresponsive to reach out efforts. Julie was discharged from treatment on January 4, 2007. See attached discharge summary." That discharge summary recounts "excessive absences" and "patient's inability to achieve abstinence." Inpatient was recommended and a bed was obtained for her, but reportedly the defendant did not return their calls. [*3]

The Court sent the defendant a letter dated February 13, 2007 informing her of the letter received from Conifer Park, that she was in Violation of her ACD, and that she must return to City Court on February 21, 2007. By letter dated February 19, another treatment agency, Champlain Valley Family Center (CVFC), wrote reporting that the defendant had appeared there on February 9 and February 19 for an assessment. That agency also recommended inpatient; they said the defendant agreed and signed the necessary paperwork. At least from the period 1/4/07 to 2/19/07 the Defendant was not in treatment anywhere.

The defendant appeared in Court with attorney Cruikshank on 2/21/07 and said that she was now at CVFC and that she would go to inpatient in 3 weeks. She asked the Court to find that she had good reason to change agencies, as she asserted that Conifer Park "violated her confidentiality" with Judge Ryan. The Court concluded that she was now in compliance with her ACD condition.

On 4/2/07 the defendant was admitted to inpatient at SLATC. On April 17 the Court received notification from SLATC that the defendant left their facility "against medical advice." Therefore on May 7, 2007 the Court once again sent the defendant a letter that she was in violation of her ACD, and instructed her to appear in Court on May 14, 2007. On May 11, 2007, the Court received the Discharge Summary from SLATC. This showed her diagnoses as being cocaine dependent and cannabis dependent. The report indicated that she tested "Positive for Cannabinoid" when she was admitted on 4/2/07, and also on 4/16/07. It said she "refused further care" and was discharged on 4/17/07.

On May 14, 2007, the Defendant appeared in Court with attorney Matthew Douthat, who indicated that he had been retained by the Defendant; he filed a Consent to Change Attorney signed by the defendant and Mr. Cruikshank on 4/25/07. He orally argued that the Court no longer has jurisdiction over the defendant, asserting that the period of her ACD has expired.

The Court indicated its view that Mr. Douthat should not represent any criminal defendant in Plattsburgh City Court, since his spouse is an Assistant DA in Clinton County. The case was adjourned to 5/21/07. On that date, Mr. Douthat's associate, Michael Hartnett, Esq. appeared with the defendant and said that Mr. Douthat would be submitting a written motion by June 4, for which he was later granted an extension to June 18.

A motion to dismiss with supporting affidavits and Memorandum of Law was filed and served on June 13, 2007. This did not address the propriety of Mr. Douthat's representing the defendant. Mr. Hartnett appeared with the defendant on June 22. The Court stated that before addressing the merits of the motion, the Court would address whether Mr. Douthat should be disqualified from representing this criminal defendant because of his wife's position as Assistant DA. The Court gave defendant's attorney until July 11 to submit anything he wished to on that issue, with an appearance on July 12. On July 11, attorney Douthat filed a Memorandum on the issue of possible conflict of interest and whether he should be disqualified. The Court gave the People until July 23 to respond.

No response was received by that date. In light of vacations, Mr. Douthat indicated on 8/8/07 that he had no objection to an extension of time. On 8/14 the Court emailed both counsel asking the District Attorney whether his office would be responding. He provided a response by email on that date. On the same date, 8/14/07, a partner in Mr. Douthat's firm asked for a meeting on this issue with the District Attorney and the Court. [*4]

That was agreed to, and the meeting took place on 8/22/07 with attorney Evan Bracy, DA Wylie and the Court. At the conclusion of the meeting, Mr. Bracy stated he would discuss the matter with other members of his firm, then advise whether Mr. Douthat would voluntarily remove himself from this case and others in Plattsburgh City Court. By email dated 9/5/07 Mr. Bracy informed the Court and DA Wylie that his firm "will agree to remove Matthew Douthat as attorney of record for Ms. Gagnier. . . . Additionally, we will agree that Matthew will no longer handle any criminal cases involving the Clinton County District Attorney's Office for so long as Ms. Douthat remains employed through that Office."

This position was acknowledged by letter from DA Wylie dated September 7, 2007. By fax dated September 11, 2007, the Court notified Mr. Hartnett that he had until September 20 to file any additional papers in support of the defendant's motion, and gave the DA's Office until October 1, 2007 to file their response. By letter dated 9/19/07 Mr. Hartnett advised that he would rest on the papers already submitted. The Court has received nothing from the District Attorney's Office.

Defendant Gagnier seeks to dismiss the Criminal Posssession of Controlled Substance 7th degree charge on two legal grounds: (1) that the six month ACD period has expired and (2) that the Court had no authority to condition an ACD on her compliance with treatment.

Time period.

The Court's research has uncovered no cases with respect to calculation of the 6 month time period. The statute provides for restoring an ACD to the calendar - which was done three times in this case. An ACD is a disposition, and in order to restore the case, the Adjournment in Contemplation of Dismissal must be vacated. Restoration starts the case anew; it is not a matter of tolling time periods. The Defendant seems to assume that the calculations of Criminal Procedure Law 30.30 pertaining to "readiness for trial" apply here; but, there is no basis in the law for that assumption. This Court finds that CPL 30.30 does not apply.

(1) Clearly, the ACD that was granted on 6/22/06 was vacated and the case was in fact restored to the calendar on July 26, 2006 for violation of the ACD, and it was not disposed of for almost two months. On September 21, 2006 once again the Court and the DA acceded to the Defendant's repeated requests to have an ACD conditioned on compliance with all treatment recommendations.

(2) Almost 5 months later, and close to 8 months from the 6/22/06 ACD, the 9/21/06 ACD was vacated and the case was again restored to the calendar on February 13, 2007. It was resolved anew with an ACD - at the defense request - on February 21, with the condition that she comply with all treatment recommendations, which included successful completion of inpatient treatment. The defendant informed the Court that she had changed treatment agencies and asked the Court's approval, which was given. There was less than one month remaining on the second ACD, and it would take the defendant multiple months to complete a course of treatment, since she was starting again at a new agency.

(3) The third restoration of this case to the calendar took place on May 7, 2007, when the 2/21/07 ACD was placed on the calendar. The defendant appeared in Court on May 14 with new counsel, resulting in the pending motion to dismiss. [*5]

A defendant does not have the right to a hearing before vacatur of an ACD and restoration to the calendar. In the Matter of Richard C, 115 Misc 2d 314, 453 NYS2d 366 (Family Ct, Queens Co, 1982). The statute creating an Adjournment in Contemplation of Dismissal, CPL 170.55, is phrased in terms of this being a dismissal which the Court finds to be in the interests of justice. There can be no plausible argument from this defendant that she deserves to have her misdemeanor charge dismissed in the interests of justice.

The defendant's non-compliance with court appearances and treatment requirements were glaring from the beginning. The restoration of the case to the calendar on three separate occasions clearly communicates that it was not in the interests of justice to dismiss the case, and the Court did not dismiss it. On at least 7 separate court appearances between 4/13/06 and 2/21/07 the defendant and her attorney requested the Court and the DA to grant an ACD and to do so on the condition that she fully comply with recommendations from a substance abuse treatment agency. Each time, after requiring proof of her new compliance efforts, the People and the Court acquiesced in the defense requests and promise to comply.

Treatment as an ACD condition.

The defendant argues that the Court had no authority to order her to comply with treatment recommendations as a condition of her ACD when first granted on April 13, 2006. Her attorney points out that there is no explicit authority to order treatment under CPL 170.55, the type of ACD accorded to this defendant, while there is such language in the ACD for marijuana charges, CPL 170.56.

Although that is an accurate observation, it does not necessarily follow that there was no authority to condition the ACD on treatment under the particular facts of the instant case. Instead, a Court is not required to grant unconditional adjournments in contemplation of dismissal, and has independent discretion to impose conditions. Powell v Page, 8 Misc 3d 988, 800 NYS2d 491 (Sup Ct, Dutchess Co, 2005).

The Court of Appeals has recognized that "plea negotiations serve the ends of justice, enabling courts to impose individualized sentences. . . . . In order to effectuate these principles, some judicial discretion in overseeing and approving plea bargains, including the imposition of conditions, is desirable. . . . Conditions imposed as part of a plea agreement are valid if the parties agree to them and they do not violate any statute or contravene public policy." People v Avery, 85 NY2d 503, 626 NYS2d 726 (1995).

This Defendant repeatedly and explicitly solicited the Court and the People to agree to treatment conditions with an ACD. On the record in open Court with her attorney she asked for a conditional ACD on 4/13/06, 6/22/06, 8/11/06, 8/25/06, 11/3/06, 11/13/06 and 2/21/07. The Defendant entered into three plea agreements with the People, and approved by the Court, to dispose of the case by her complying with treatment conditions and receiving and Adjournment in Contemplation of Dismissal.

She made a bargain and received the benefit of it. Yet, she did not keep up her part. The Court and the People relied upon the Defendant's promises. She obtained the benefits she sought without performing her agreed-upon obligation. As in Avery, all parties agreed to the treatment conditions, and such conditions do not violate any statute or contravene public policy. [*6]

For more than 10 months, from at least April 13, 2006 until after February 21, 2007, through numerous Court appearances and two restorations of the Criminal Possession of Controlled Substance 7th Degree charge to the calendar, the Defendant renewed and repeated her promises to comply with treatment and her requests for an ACD conditioned on her following through.

She did not object to the first two restorations, and did not claim that it was too late. She could have raised these issues before and did not; she has waived any complaint. She consented to each ACD. She avoided a criminal conviction or trial by insisting she would complete treatment. She cannot now succeed in having the charge dismissed despite not performing her obligations.

The Court finds that the principles enunciated by the Court of Appeals in People v Avery, 85 NY2d 503 (1995) are applicable and controlling here, so that the ACD conditioned on complying with treatment was valid and enforceable. Since the defendant did not comply, she is in violation of the ACD and the case is properly restored to the calendar.

Even assuming arguendo that the Court had no authority to consent to the conditional ACD requested by the Defendant and agreed to by the People, then the remedy is to void the ACD and restore the case to the calendar, not dismiss it.

In cases where a Court lacked authority to order a defendant placed on "interim probation" after conviction and prior to sentencing, the remedy was not to dismiss the case, but to vacate the guilty plea. People v Rodney E., 77 NY2d 672, 569 NYS2d 920 (1991); People v Broadhead, 208 AD2d 761, 618 NYS2d 46 (2d Dept 1994). Similarly, if the condition the defendant repeatedly sought should not have been ordered, the misdemeanor should be restored to the calendar, not dismissed.

Now, therefore, the Motion to Dismiss is DENIED. The Class A Misdemeanor of Criminal Possession of Controlled Substance 7th Degree remains on the Court's calendar. The Defendant and her attorney are directed to appear in City Court at 9 AM on one of the following dates, as convenient for counsel: Wednesday October 17, Friday October 19, Monday October 22 or Tuesday October 23, 2007. Please advise the Court Clerk and the DA's Office at least two days prior to the appearance.

ENTER:

__________________________

Penelope D. Clute

City Court Judge

Dated:Plattsburgh, New York

October 9, 2007