By notice of motion, defendant through his attorney, moves this Court for an order directing the conditional sealing of his March 15, 2006 conviction for Attempted Criminal Possession of a Controlled Substance in the Fifth Degree pursuant to Criminal Procedure Law § 160.58 (CPL § 160.58).

The Nassau County District Attorney's Office takes no position regarding defendant's motion.

On March 15, 2006, this Court sentenced defendant upon his plea of guilty of Attempted Criminal Possession of a Controlled Substance in the Fifth Degree [Penal Law § 220.06 (5)] to a period of probation not to exceed five years. One of the special conditions of defendants probation was therapy as directed by the Department of Probation, whether that be on an inpatient or outpatient basis. Additionally, defendant was ordered to pay a mandatory surcharge of $250.00, a crime victims assistance fee of $20.00 and a DNA databank fee of $50.00.

On April 23, 2007, this Court signed a Declaration of Delinquency against defendant for violating a condition of his probationary sentence. Defendant was subsequently arrested and brought before this Court on the violation of probation charge. Specifically, the violation alleged that defendant failed to report to his supervising probation officer on numerous occasions and he did not complete his required substance abuse counseling. The violation further alleged that defendant was terminated from his treatment program because of poor attendance. On June 12, 2007, defendant admitted to the violation of probation and was restored to probation supervision.

On August 8, 2007, this Court signed a second Declaration of Delinquency against defendant for violating a condition of his probationary sentence. Defendant was subsequently arrested and brought before this court on the violation of probation charge. The second violation of probation alleged that defendant violated the terms of probation by his failure to contact his probation officer and his failure to report to the Department of Probation on numerous occasions. On December 21, 2007, defendant admitted to the violation of probation. On June 11, 2008, defendant was re-sentenced to time already served and discharged from probation as unimproved.

Defendant now seeks an order pursuant to CPL § 160.58 to conditionally seal his March 15, 2006 conviction for Attempted Criminal Possession of a Controlled Substance in the Fifth Degree. According to defendant's moving papers, this "conviction has prevented [him] from achieving his career goals and attaining full community membership and employment".

In 2009, as part of the legislation that overhauled the Rockefeller Drug Laws, Judicial Diversion was created. The premise of the Judicial Diversion Program is to give a second chance to eligible defendant's whose criminal behavior was motivated by the defendant's addiction to drugs and/or alcohol. A unique component of the Judicial Diversion legislation is the enactment of CPL § 160.58. CPL § 160.58 authorizes the sentencing court to conditionally seal the conviction of eligible [*2]defendants, so long as certain criteria are met. In pertinent part CPL § 160.58 (1) states:

In this case, defendant was convicted of an offense defined in Article 220 of the Penal Law, namely Attempted Criminal Possession of a Controlled Substance in the Fifth Degree which is a violation of Penal Law § 110/220.06 (5). Defendant completed the sentence that was imposed for the conviction in 2008 when he was re-sentenced to time already served and discharged from probation as unimproved.

The question before this court is whether defendant has successfully completed a judicially sanctioned drug program of similar duration, requirement and level of supervision as defendants who participate in the judicial diversion program or another judicially sanctioned drug treatment program.

A review of Article 216 of the Criminal Procedure Law shows that CPL § 216.00 (2) outlines steps that should be followed before any eligible defendant can participate in the Judicial Diversion program. Specifically, a completed alcohol and substance abuse evaluation report must be ordered by a court and completed by a court appointed entity or licensed healthcare professional. Said report must contain a history of the defendant's alcohol or substance abuse or alcohol or substance dependance as such terms are defined in the diagnostic and statistical manual of mental disorders; a recommendation on whether the program can effectively address the defendant's alcohol or substance abuse dependance; a treatment recommendation for the defendant and the length of the treatment recommendation; and any other factors that may be deemed relevant by the court. CPL § 216.00 (2).

Here, defendant has submitted several documents to support his position that he participated in various substance abuse programs that qualify as "judicially sanctioned programs of appropriate duration and level of supervision". Defendant has attached to his moving papers documents from NuHealth University Medical Center that states he was admitted to treatment on June 01, 2009 and was discharged on June 29, 2009. Defendant has also submitted a report entitled "Behavioral Health Services Outpatient Discharge Summary" from Mercy Medical Center. This report contains an evaluation of defendant's history and stated that defendant was admitted to Mercy Medical Center on July 13, 2009 and discharged on October 19, 2009. The defendant also attached a letter dated June 11, 2013, from The Center for Rapid Recovery, Inc., that stated in sum and substance that "John Sarubbi will successfully completed [sic] the Chemical Dependency program (6/25/13)". The letter from The Center for Rapid Recovery, Inc., further stated that the program takes an average of three to six months to complete and then listed several topics that the program covers. The letter did not state how long defendant participated in the program.

This Court presides over both the Judicial Diversion and the drug treatment alternative to prison ( D-TAP) programs in Nassau County. The Judicial Diversion program in Nassau Court is a minimum of eighteen months in duration. Furthermore, the program is divided in four phases that must be completed by the defendant. Defendants who participate in Judicial Diversion are required to submit to random toxicology testing at least once per week, both at their individual offsite program and at the Treatment Office located in the courthouse. Participating defendants are also required to appear before the court at least once per month and the court receives an updated report on each defendant's progress in the program. Before a defendant qualifies for successful completion of Judicial Diversion defendant must meet the following criteria: (i) have gainful employment and/or be enrolled in school and/or vocational training; (ii) have had negative toxicology tests for at least six months prior to completion; and (iii) have no court ordered sanctions six months before completion.

While DTAP is monitored by the District Attorney's Office and TASC, a similar standard of accountability and checks and balances are also in place. DTAP participants are subjected to random toxicology testing and are required to appear in court at least every six weeks. At each court appearance a report is given to the court that outlines the defendant's progress in the program.

A review of the documents submitted in support of defendant's application shows that the various drug treatment programs that defendant attended did not [*3]provide the same or similar structure and/or intensity as either Judicial Diversion or DTAP.

The Court examined the plain language of CPL § 160.58 to ascertain whether defendant has met the threshold requirement for the possibility of conditional sealing. CPL § 160.58 (3), provides the following factors as guidance that a court should consider before a determination on sealing is made:

After a careful review of the defendant's moving papers and the supporting documentation submitted and evaluating them in the context of the factors listed in CPL § 160.58, defendant's motion must be denied. Defendant has failed to participate in and complete a judicially sanctioned drug treatment program of similar duration, requirement and level of supervision as the Judicial Diversion program or any other judicially sanctioned drug treatment program. Defendant does not have a lengthy record of sustained and durable participation in a drug treatment program. Rather, defendant has a history of sporadic participation in various drug treatment programs. Merely completing a short term drug treatment program does not meet the rigorous requirement of the Judicial Diversion program or any other judicially sanctioned drug treatment program.

According to defendant, this conviction has stigmatized him and resulted in him being denied permanent employment with the United Parcel Service (UPS) in 2009. However, defendant is currently employed by Dress Barn in the shipping department. Furthermore, defendant's conviction has not hindered his ability to find gainful employment by his own admission he has been employed several times since his conviction.

Defendant has not demonstrated any commitment to rehabilitation as shown by his varied and short attempts of attending treatment programs. Furthermore, [*4]defendant's violation of his conditions of probation, not once but twice, shows his lack of respect for the rules of society. Defendant was given opportunities by this Court to reintegrate himself into society and become a productive member of his community. Instead, defendant chose to ignore the mandates of the Court and the Department of Probation. By his own actions, defendant has effectively shown that he is unwilling to put the interest of society above his wants. There is nothing in the record before this court that shows defendant's commitment to rehabilitation. Therefore, it is not in the public's safety or interest to conditionally seal defendant's 2006 conviction for Attempted Criminal Possession of a Controlled Substance in the Fifth Degree.

CPL § 160.58 states that the court "may" conduct a hearing to consider the application for conditional sealing; since the hearing is discretionary, this Court has decided not to conduct a hearing. The record before this Court is sufficient without the requirement of a hearing.

For the foregoing reasons, defendant's motion is denied in it's entirety.