The Defendant, Tyler White, by motion seeks admission into the Judicial Diversion program pursuant to section 216.00, et seq, of the Criminal Procedure Law. The Defendant is 19 years old and resides in Schenectady, New York with his mother and older brother.

The People submit affirmation in opposition.

Defendant submits reply.

On July 13, 2010, the Defendant was charged with criminal sale of a controlled substance in the third degree and criminal possession of a controlled substance in the third degree, in violation of sections 220.39(1) and 220.16(1), respectively, of the New York Penal Law. It is alleged that, while attending the Dave Matthews Band concert at the Bethel Woods Center for the Arts, the Defendant sold three Ecstasy pills to undercover police officers. [*2]

The Defendant was arraigned before the Honorable Brian Rourke of the Town of Liberty Court and was remanded to the Sullivan County Jail in lieu of Ten Thousand ($10,000.00) Dollars cash bail. Approximately one week later, the bail was posted and the Defendant was released. His bail status has not changed. On January 24, 2011, jurisdiction of this matter was waived to the County Court.

The Defendant was evaluated by the Sullivan County Drug Treatment Court Team and was recommended for acceptance into that program. The District Attorney, however, did not consent to Drug Treatment Court. Rather, the District Attorney offered the Defendant a sentence of two years in state's prison, with two years of post-release supervision, in exchange for a guilty plea to one of the felony drug charges.

By Notice of Motion dated January 27, 2011, the Defendant seeks admission into the Judicial Diversion program. As part of the New York State Legislature's continued reforms of the Rockefeller Drug Laws, in April of 2009, the Legislature enacted section 216.00, et seq., of the Criminal Procedure Law, commonly known as the Judicial Diversion program. One of the key factors that distinguishes Judicial Diversion from Drug Treatment Court is that the consent of the District Attorney is not required for a defendant to enter Judicial Diversion. The People submitted an Affirmation in opposition to the Defendant's acceptance into Judicial Diversion due, primarily, to the Defendant's history of substance abuse and prior criminal convictions.

A defendant is eligible to participate in Judicial Diversion if he is charged with a Class B, C, D, or E drug felony and is not otherwise excluded based upon other pending criminal charges or a prior criminal history. CPL 216.00(1). Tyler White is eligible to participate in Judicial Diversion because he is charged with criminal sale and criminal possession of a controlled substance, both in the third degree, and has never been convicted of a felony offense.

Pursuant to section 216.05(1) of the Criminal Procedure Law, an alcohol and substance abuse evaluation is ordered by the Court. Here, the Defendant began the evaluation process at Carver Community Counseling Services, located in Schenectady, New York, on July 27, 2010, and was subsequently admitted to their outpatient drug rehabilitation treatment program. The defendant has continued to attend that treatment program. In addition, the Defendant was evaluated by the Schenectady County Drug Treatment Court program and it was concluded that the Defendant would benefit from participation in the drug court program. Schenectady County agreed to monitor and supervise the Defendant and send reports to Sullivan County, as needed.

Pursuant to section 216.05(3) of the Criminal Procedure Law, the Court makes the following findings.

(1) the defendant is an eligible defendant

The Defendant is charged with criminal sale and criminal possession of a controlled substance, both in the third degree, which makes him eligible for Judicial Diversion.

(2) the defendant has a history of alcohol or substance abuse or dependence

The Defendant has a well documented history of drug abuse. The Defendant first began using marijuana around age 11 and then began using cocaine and Ecstasy around age 13 or 14. While in High School, he attended outpatient drug treatment, but left that program after a short period of time and ultimately dropped out of High School, but did obtain his GED. The Defendant was adjudicated as a youthful offender on the charge of criminal possession of a controlled substance in the seventh degree, in the Town of Rotterdam Court, and is currently serving a term of probation. Prior to that, the Defendant was convicted of driving while ability impaired by alcohol.

(3) alcohol or substance abuse or dependence is a contributing factor to the defendant's criminal behavior

The instant arrest is directly related to the Defendant's drug use. The Defendant admitted that he sold the Ecstasy pills in order to continue to purchase and use drugs. His prior criminal offenses, noted above, also involve controlled substances or alcohol.

(4) the defendant's participation in judicial diversion could effectively address such abuse or dependence

Based upon the Defendant's limited history of drug treatment, as well as his stable and supportive living environment, and continued participating in an outpatient drug treatment program, the Defendant's participation in Judicial Diversion could effectively address his abuse issues. In addition, both the Sullivan County and Schenectady County Drug Treatment Court teams believe that the Defendant would benefit from participation in a treatment court program.

(5)Institutional confinement of the defendant is or may not be necessary for the protection of the public

No useful purpose would be served by imposing a period of incarceration on this Defendant. The Defendant does not present a threat of physical danger to society. The Judicial Diversion program was created "for diverting selected felony offenders from the ordinary processing of criminal actions by offering them a chance at avoiding the ultimate consequences of criminal conviction." Practice Commentaries to CPL 216, by Peter Preiser. This 19 year old Defendant, who has been participating in outpatient drug treatment for over seven months, is an appropriate candidate for Judicial Diversion.

This Court is persuaded that the Defendant is motivated to maintain his sobriety and lead a law abiding lifestyle and therefore, would benefit from the Judicial Diversion program.

Based upon the above, it is

ORDERED, that the Defendant, Tyler White, shall be accepted into the Judicial Diversion program, and it is further

ORDERED, that the People shall prepare a Superior Court Information, with attendant waivers, for the charge of criminal possession of a controlled substance in the third degree, in [*4]violation of section 220.16(1) of the New York Penal Law, and it is further

ORDERED, that the People shall prepare a contract for the Defendant to participate in the Judicial Diversion program with the usual provisions and with the specific provision that the Defendant will enter a guilty plea to the charge of criminal possession of a controlled substance in the third degree, in violation of section 220.16(1) of the New York Penal Law, and it is further

ORDERED, the contract shall include that if the Defendant successfully completes the Judicial Diversion program, and he shall undergo a period of one year of interim probation supervision and, upon the Defendant's successful completion of the interim probation supervision term, notwithstanding the provision of any other law, the Defendant shall be sentenced to felony term of probation with accompanying fines and surcharges; and it is further

ORDERED, that the Defendant shall be scheduled to appear before the Court to enter his guilty plea and to be accepted into the Judicial Diversion program.

Dated:April 26, 2011

Monticello, NY 12701

_______________________________________

Hon. Frank J. LaBuda

Acting Supreme Court Judge

Papers considered: Notice of Motion and Affirmation in Support, dated January 27, 2011, with attached accusatory instruments; Carver Community Counseling Services Outpatient Psychosocial Evaluation, dated August 17, 2010; Updates dated December 1, 2010, and January 26, 2011; and Schenectady County Drug and Alcohol Assessment, dated August 20, 2010. The People's Affirmation in Opposition for Judicial Diversion, dated February 2, 1022; Defendant's Reply.