The question before the Court in these separate cases is whether defendants should be permitted to plead guilty to the felony drug sale charges in these indictments under the parameters set forth in Article 216 of the Criminal Procedure Law, the "judicial diversion" statute, where their alleged crimes occurred while defendants were already in court-mandated treatment programs based on pleas to felony narcotics sales on previous indictments ^[FN1] Each defendant couches the application for diversion on their new cases as warranted because it will allow them to "continue" treatment ordered in relation to their prior felony drug sale pleas. However, the Court finds that, because these defendants have been indicted for new crimes, they must apply de novo for "judicial diversion" for the new felony narcotics sale cases. Indeed, the Legislature specifically provided that defendants who are participating in judicial diversion programs may be prosecuted for committing a new and "different offense," CPL § 216.05 (d), while in treatment, following [*2]the entry of a felony plea on a prior case. The Court declines to exercise its discretion to order new evaluations pursuant to CPL § 216.05 (1) in these matters because "judicial diversion" dispositions are wholly inappropriate for the new indictments.

In October 2009, the Legislature empowered judges to consider placing defendants accused of committing certain felony drug-related offenses into treatment, rather than sending them to prison. The target population for inclusion in this "judicial diversion" program are those individuals who have a "substance abuse or dependence" problem, CPL § 216.05(1), and who commit crimes, including sale of narcotic drugs and other controlled substances, to support their own drug habits. See People v. Jordan, 29 Misc 3d 619, 621- 22 (County Ct Westchester County 2010). The objective is to have defendants who are addicted to or dependent on drugs successfully complete treatment and thereby remove the need for these individuals to commit crimes in order to make money that to buy drugs for their own use. Id.; see also People v. Jordan, 28 Misc 3d 708, 713 (Sup Ct Bronx County 2010); People v. Hughes, 27 Misc 3d 1235A (Sup Ct Kings County 2010); People v. Coco, 28 Misc 3d 563, 565 (Sup Ct Kings County 2009). The Legislature made judicial diversion contingent upon a court's finding that a defendant's "alcohol or substance abuse or dependence is a contributing factor to the defendant's criminal behavior." CPL § 216.05(3)(b)(iii). Thus, judicial diversion is not an option for casual, recreational drug users, or for entrepreneurial, for-profit drug sellers with no active drug use problem.

When a defendant has a demonstrable dependence on drugs and is placed into treatment, the path to a "clean and sober" life is often filled with pitfalls. It is absolutely clear that relapse into drug use is often part of the difficult recovery process, and courts involved in judicial diversion compliance receive extensive training to deal with these types of relapses, which often involve re-arrests for possession of small amounts of personal-use illicit substances. See CPL 216.05(9)(c). Relapse, of course, involves renewed or recurring drug use; it does not involve drug selling for purely financial gain. As one court stated, "[w]here a defendant's criminal behavior is motivated by greed or profit, rather than a need to obtain money to purchase drugs for immediate use, drug treatment will not result in a cessation of the behavior," Hughes, 23 Misc 23 1235A, and therefore the legislative objectives behind judicial diversion are not satisfied by placing defendants whose motive for the new criminal activity is solely to make money.

In each of these cases, the facts indicate that defendants are no longer part of the "target population" of felony offenders who are candidates for judicial diversion, even though they were in diversion programs at the time of the new crimes.^[FN2] In defendant Denton's case, he was arrested on his previous case on September 4, 2009, and charged with, inter alia, criminal sale of a controlled substance in or near school grounds (Penal Law § 220.44 [2]). The case was presented to a grand jury and Indictment 3634/09 was filed. Following this defendant's arraignment on the indictment,

a he was evaluated for judicial diversion and found acceptable for residential drug [*3]treatment. He reported an addiction to, or dependence on, marihuana.

On February 8, 2010, he pled guilty to violating Penal Law § 220.44 (2), and was referred to Palladia, a residential drug treatment program, for a period of from eighteen to twenty-four months. During the plea allocution, defendant Denton signed a written contract, under which he agreed to remain compliant with all the rules and regulations of the drug treatment program, to refrain from any illicit drug use, and to live a law abiding life and not be arrested while he was in treatment. He was released from custody to the Palladia program on March 4, 2010

On March 18, 2010, just two weeks later, defendant Denton left Palladia, against medical advice, and was terminated from that program. On March 25, 2010, the judge then presiding over the case gave him a second chance and agreed to place him in another residential treatment program, this one run by Phoenix House. Defendant Denton was routinely screened for any drug use while in the program, and the results consistently showed that he was not using marihuana, or any other illicit substance.

On July 16, 2010, defendant Denton appeared in Court for a scheduled compliance update. Phoenix House again reported that he had not been using any illicit substances, had not been rearrested, and was compliant with treatment. The case was adjourned to September 24, 2010 for the next update. After he left court, and presumably while en route to Phoenix House, he was arrested and charged with criminal sale of a controlled substance in the third degree (Penal Law § 220.39 [1]). He was subsequently indicted on that charge. According to the People, an undercover police officer met with a co-defendant, who agreed to sell the officer cocaine. The co-defendant then placed a telephone call, and defendant Denton appeared and delivered the narcotics for sale to the police officer. Defendant Denton testified before the grand jury, and denied committing the crime.

On November 12, 2010, defendant Denton asked to be considered for placement in judicial diversion on this new indictment. He agreed to plead guilty to selling narcotics, contradicting his sworn grand jury testimony, if he were allowed to be placed back into residential treatment at Phoenix House. The District Attorney's Office opposed this application.^[FN3]

In terms of Ms. Diaz, she had been arrested on September 19, 2008, and was subsequently charged in Indictment 4502/08, along with two other defendants, with criminal sale of a controlled substance in the third degree, pursuant to Penal Law § 220.39 (1). She was alleged to have sold selling heroin to an undercover police officer, and the officer indicated that defendant Diaz personally delivered the heroin sold. The case was on the court's calendar no fewer than eleven times during 2009, and was [*4]ultimately set down for trial on January 6, 2010. On that date, defendant Diaz, apparently for the first time, expressed an interest in judicial diversion. The case was adjourned until March 3, 2010 for a possible disposition. On March 3, 2010, she told the Court that she was not interested in court-ordered drug treatment, and the case was adjourned until April 28, 2010 for trial. Defendant Diaz failed to appear on April 28, 2010; however, she did come to court the next day and indicated that she had changed her mind and was once again interested in being considered for judicial diversion.

On May 19, 2010, following an evaluation by TASC (Treatment Alternatives Supreme Court), defendant Diaz was found appropriate for out-patient treatment. During the evaluation, defendant Diaz reported using heroin on a daily basis between 2007 and 2009; however, she claimed she had not used heroin since being placed in a methadone program in 2009. She pled guilty that day to violating Penal Law § 220.39 (1). Defendant was placed in treatment at Concourse Medical, located at Morris Avenue and East 161st Street, directly across the street from the courthouse, which was the same place she had been receiving methadone six times a week for nearly a year.

As a condition of her "judicial diversion" contract, in addition to agreeing to the same terms as defendant Denton, defendant Diaz was also required to report to the TASC office once a week for drug screening and additional counseling. She states that alprazolam tablets, known at times by the brand name Xanax, were given to her at Concourse Medical as part of her treatment plan. Of course, the pills were provided for her exclusive and personal use, and are apparently paid for by public funds. Defendant Diaz reported for random drug screening after pleading guilty, and all lab tests conducted after May 19, 2010 show that she was not using heroin, and was taking her methadone.

On August 2, 2010, defendant Diaz was arrested on the corner of East 161st Street and Morris Avenue, outside the Concourse Medical treatment program, after a police officer alleged he observed her sell an alprazolam pill to another individual. It is alleged that she had additional alprazolam pills in her possession, as well as $ 255.00. The alleged buyer was also apprehended, and the alprazolam pill allegedly sold was recovered from that individual. Defendant Diaz was subsequently indicted and charged with criminal sale of a controlled substance in the fifth degree, pursuant to Penal Law § 220.34.

Before the case was presented to a grand jury, the People opposed her application to be placed into judicial diversion on this new case; in fact, they asked that she be terminated from treatment on the prior case, and said that they would seek a consecutive state prison term for the new case. Another judge denied the People's request to terminate defendant Diaz from judicial diversion on the first case before an indictment was voted on the new charges. The People presented the new case to a grand jury and secured the new indictment. Post-indictment, however, the People have altered their position, and are now advocating on defendant Diaz's behalf for the Court to place her into judicial diversion based on a plea to the new indictment.^[FN4]

The Court declines to order an evaluation pursuant to CPL § 216.05 (1), post-[*5]indictment, in either case. In order for these defendants to be placed into treatment, they would have to plead guilty to the felony charges in the new cases. That would require an admission that they knowingly and unlawfully sold controlled substances. They were in treatment based upon pleas to selling controlled substances after a finding was made that they did so at that earlier time to support a narcotics addiction problem. No such finding can be made for either defendant at this time in regard to these new cases. Defendants were not using illicit drugs or testing positive for illicit drug use at the time of their new arrests; indeed, there were no such positive results for months, and possibly years, prior to the newest arrests. Thus, there is no basis for the Court to find that either defendant was selling controlled substances to others while they were in treatment because they had relapsed into drug use, and needed the money to support their habit.

In Ms. Diaz's case, the People acknowledge that they have no information to support a finding that she was selling alprazolam for any reason related to current illicit drug use. Their position, in substance, is that since she has a heroin addiction, she should receive another judicial diversion plea because she was only in court-mandated treatment for a few months and should get a second opportunity, and be allowed to remain in court-ordered treatment. It is true that addiction itself is often a lifelong battle. Moreover, the Court is not seeking to terminate defendant Diaz from the current treatment modality, ordered after her plea to the earlier indictment, even though her indictment for the new crime is a per se violation of the conditions of her "judicial diversion" contract. The Court, however, can find no legal basis for ordering a judicial diversion evaluation in her new case, or, for that matter, in defendant Denton's case. In both cases, the information before the Court leads to only one finding based upon all of the facts available to the Court in rendering its determination — that these defendants returned to drug selling solely to make money.

In Mr. Denton's case, the facts alleged by the People are that he delivered crack-cocaine to a location after a co-defendant placed a telephone call requesting such a delivery, and that supports a finding that he is involved in an entrpreneurial drug-selling enterprise that has not been hampered by the fact that he was in residence at Phoenix House. In Ms. Diaz's case, it is alleged that she sold the very alprazolam pills provided to her free of charge by the very program to which she was mandated for treatment. And, she was taking her methadone. Thus, the new crimes appear to be have been motivated by "greed," rather than sales made by addicts desperate to make money to buy narcotics or other illicit substances for themselves.

Finally, the Court believes that agreeing to place these defendants into diversion for the new cases would result in their receiving an undeserved and direct legal benefit. When a defendant successfully completes a judicial diversion program, a court has the option of dismissing the felony case outright or, at most, allowing that defendant to withdraw the felony plea and allow the defendant to re-plead to a misdemeanor. CPL § 216.05 (10). In these cases, based on the facts before the Court, that result does not seem to be what the legislature intended when they enacted this statute. By agreeing that these defendants can plead guilty to these new drug sales with the commitment that they would have these new felonies erased from their records at a later date, the Court believes that it would be sending send a clear message that it was condoning [*6]dismissal of indicted drug sale cases which have no demonstrable connection to any active drug use. This would not only fail to deter such criminal conduct, but would be at odds with the overall ameliorative purpose of the statute, which rewards compliance, not recidivism. For this reason as well, defendants' applications to be placed in judicial diversion on the new indictments are denied.

This constitutes the Decision and Order of the Court.

Dated: Bronx, New York

February 17, 2011

____________________________________

Hon. Ralph Fabrizio