On April 15, 2010, the defendant was arrested for allegedly selling a quantity of phencyclidine (PCP) to an apprehended other, and possessing additional quantities of PCP and ketamine in the stroller occupied by his child. He was charged by this indictment, inter alia, with Criminal Possession of a Controlled Substance in the Third Degree (a Class B felony) and Endangering the Welfare of a Child (a Class A Misdemeanor).

The case was referred to the Brooklyn Treatment Court on April 4, 2011, upon the defendant's request for Judicial Diversion. The Judicial Diversion Program for Certain Felony Offenders (Criminal Procedure Law Article 216) grants authority to judges to determine which nonviolent defendants, whose criminal activity is the result of substance abuse or dependence, should have the opportunity to avoid a jail sentence by agreeing to complete court supervised treatment. The defendant is a predicate felon, having two prior drug felony convictions for which he served state prison time and was paroled within the past ten years. He also has two prior misdemeanor convictions for possession of controlled substances. He has no violent predicate felony convictions and no other pending felonies. Accordingly, it is undisputed that he is an "eligible defendant" for Judicial Diversion pursuant to CPL § 216.00(1).

The People consented to the defendant's diversion into treatment only if he were willing to participate in the Drug Treatment Alternative-to-Prison (DTAP) program, which was developed by the Kings County District Attorney prior to the Judicial Diversion law to offer treatment to drug-addicted, repeat felony offenders in lieu of mandatory state prison terms. As per DTAP policy, all participants must initially be placed in long-term residential treatment facilities. The defendant declined the DTAP offer and requested the Court allow him to attend an outpatient treatment program through Judicial Diversion.

This case raises the question of how a judge should determine the appropriate modality of treatment where the clinical recommendation, the People's policy, and criminal justice considerations may call for different outcomes. [*2]

A Case Manager from Treatment Alternatives to Street Crime (TASC) conducted an alcohol and substance abuse evaluation of the defendant, who claimed to have used alcohol four times a week from 2001 until December 2010, cocaine once a week, and marijuana five times a week from 1994 until recently. He tried ecstasy and zanax once and denied all other drug use, including PCP. Since January 2011, the defendant had reported to TASC every other week to be tested for drug use. The only positive results were for alcohol use. TASC did not test the defendant for PCP because he never reported use of that drug. Based on these results, the Court questioned whether or not the defendant had a history of alcohol or substance abuse that contributed to his criminal behavior and could be effectively addressed in treatment.

At a court appearance in April, the defendant's counsel advised the Court that the New York City Administration for Children's Services became involved with the defendant upon his arrest in the instant case. When tested by them on September 24, October 21, and October 28 of 2010, the defendant tested positive for PCP. He was subsequently tested by TASC on April 19, 2011, and was positive for PCP and alcohol.

The defendant's counsel requested an opportunity to present evidence of the defendant's drug abuse and the Court heard testimony from the defendant's expert witness, Ed Walsh, LCSW, CASAC. As per the witness, the defendant reported he began to use marijuana at the age of 13 and drank alcohol until he blacked out. As a result of his drug use, he left school and began stealing. At 19 years old, while in jail, he was mandated to attend treatment, which he continued in an outpatient program while on parole. He was able to maintain sobriety for approximately three years. At 22 years old, he relapsed and began using PCP and ecstasy intermittently. He stopped for a period of time, but resumed upon the loss of his job. At the time of his arrest in this case, the defendant's primary drug of choice was PCP. He was smoking 9 to10 cigarettes dipped in PCP once or twice a week, and was drinking alcohol. He reportedly wants treatment but has not pursued it voluntarily upon the advice of his ACS lawyer. His drug use has reportedly led to family conflicts, fights with his fiancee, and has jeopardized his job. He says he lives with his fiancee and child and is employed. Based on the foregoing, Mr. Walsh concluded that the defendant is substance dependent and recommended an outpatient treatment program. He explained that, as a clinician, his placement recommendation was to begin treatment in the least restrictive form of care appropriate to address the defendant's treatment needs.

Pursuant to CPL §216.05(3)(b), this Court now finds that, based upon the evidence presented, the defendant has a history of substance abuse or dependence, and that such substance abuse or dependence is a contributing factor to his criminal behavior. His crimes were all related to the possession or sale of drugs and occurred during time periods when he was abusing drugs. Moreover, the defendant's participation in diversion for drug treatment seems likely to effectively address his dependence in that his criminal activities ceased when he was attending treatment and reportedly drug-free. Institutional confinement of this defendant is not necessary for the protection of the public so long as he is enrolled in an appropriate treatment setting.

Research has consistently shown that legal coercion can increase the likelihood of an offender's entering and remaining in treatment for a period of time long enough to make a difference. While the clinical determination as to need for treatment and appropriate level of [*3]care may dictate the feasibility of an outpatient setting for this defendant, the Court is not required to adopt either this clinical recommendation or the People's policy requiring residential treatment for repeat felony offenders. Rather, the Judicial Diversion Law empowers the Court to determine a defendant's need for treatment and appropriate level of care.^[FN1]

The Substance Abuse and Mental Health Services Administration (SAMHSA) has found that placement decisions for substance abuse treatment in the criminal justice system should consider the offender's "substance abuse problems, risk for criminal recidivism, . . . motivation and readiness for treatment, the length of sentence/incarceration, prior history in treatment, violence potential, and other related security and management issues."^[FN2] Furthermore, results from the federally funded Drug Abuse Treatment Outcome Studies ^[FN3] indicate that residential treatment programs of at least three months' duration are particularly cost-effective for use with criminal justice clients.

"Drug addiction is a chronic relapsing disease that results from the prolonged effects of drugs on the brain . . .and is . . .characterized by compulsive drug seeking and use."^[FN4] Here, the evidence indicates that the defendant has a severe substance abuse problem. He reportedly used alcohol, at times until he blacked out, four times per week from the ages of 13 until 30. He also used cocaine once per week. He used marijuana five times per week from 13 years of age until recently. At 22 years old, he began using PCP and ecstasy intermittently. At the time of his arrest, the defendant's primary drug of choice was PCP. He was smoking 9 to10 cigarettes dipped in PCP once or twice per week, and was drinking alcohol. He continues to test positive for both substances.

While abusing drugs, the defendant was engaged in criminal activity. He was convicted of two felony drug crimes in New Jersey when he was 19 years old and sentenced to state prison for those crimes. He was convicted again in 2005 and 2009 for misdemeanor possession of controlled substances, including PCP.

Although the defendant reports attending an outpatient treatment program mandated by parole, he has been unable to maintain abstinence despite this treatment intervention. His drug use has led to conflicts with his fiancee, and has jeopardized his job. His arrest for this new felony, in which he allegedly endangered the welfare of his child by selling PCP with his child present and storing additional quantities of drugs in the child's stroller, indicates that his substance abuse has not only continued but has escalated to a degree that is unmanageable. [*4]

The Court finds that the defendant's severe substance abuse history, his record of repeated drug crimes, the fact that he was rearrested for a new felony despite previous treatment interventions, the nature of the instant charges, and his inability to maintain abstinence after participation in an outpatient program, all suggest the need for the structured and restrictive level of care provided by a residential treatment program. Here, where the defendant has not voluntarily enrolled in treatment despite the negative consequences resulting from his drug use, the Court believes community safety precludes allowing the least restrictive level of care. The Court further finds that institutional confinement is not necessary so long as defendant participates in a residential drug treatment program. Upon demonstrating an ability to be drug-free in a structured setting, the defendant will be permitted to return home and attend treatment in the community while remaining under court supervision. Should he successfully complete 18 to 24 months of treatment, while remaining drug-free and law abiding, the Court will grant dismissal of the charges.

This constitutes the decision and order of the Court.

Jo Ann Ferdinand, A.S.C.J.