UPON THE APPLICATION of Defendant for consideration into the judicial diversion

Defendant, Jeffrey Hershewsky, was indicted on October 8, 2014, and charged with two counts on Criminal Sale of a Controlled Substance in the Third Degree, a Class B Felony, occurring on two separate dates, one count of Criminal Possession of a Controlled Substance in the Third Degree, a Class B Felony, two counts of Criminal Possession of a Controlled Substance in the Seventh Degree, a Class A Misdemeanor, and two counts of Criminal Use of Drug Paraphernalia in the Second Degree, a Class A Misdemeanor.

On November 17, 2014, Defendant appeared in court with counsel, who requested that Defendant be evaluated to determine if he was eligible for judicial diversion. The People opposed Defendant's request for diversion, and on December 22, 2014, the matter was scheduled for a diversion hearing. On January 5, 2015, the Court conducted a Judicial Diversion Hearing. During the course of the hearing, the Court heard oral argument from defense counsel and the People. The parties consented to the admission into evidence of Defendant's Drug Court Evaluation report completed by Junn Pato-Ryan, Sullivan County Drug Treatment Court Coordinator, and a letter from Phoenix House inpatient treatment center indicating that Defendant was approved for treatment when a bed became available.

The Drug Court treatment report indicates that Defendant was interviewed by the Drug Court Coordinator on November 24, 2014. He is a 31 year old male with two children, ages 7 and 12, from two separate mothers. Both children reside with their mothers. The report indicates that the defendant has a long criminal history beginning in 2000. It indicated that he has been sentenced to a term of probation on two separate occasions and both times he failed to successfully complete probation, resulting in his re-sentencing to a term of incarceration. It is further indicated that Defendant failed parole supervision as well. Defendant represented his drug of choice was heroin and indicated that he began using heroin at age 25 and last used it on the [*2]date he was arrested. Additionally, Defendant attended the Recovery Center, Synergy and SCADUS in the past to no avail, as Defendant began drug use after his release from parole. The evaluation states that the defendant was approved for in-patient treatment at Phoenix house and concludes that the defendant may benefit from participation in long—term inpatient treatment.

Defense counsel argued that Defendant should be allowed to participate in diversion since he is eligible for judicial diversion, has a history of substance abuse, only sold drugs to support his habit, would benefit from judicial diversion, and that institutional confinement is not necessary nor is confinement in the public interest.

The People, in opposing diversion, offered additional facts associated with the defendant's current offense as well as Defendant's criminal history, which were not contained in the Drug Court evaluation, to support their position. The People submitted that Defendant was charged with selling the narcotic drug heroin on two separate occasions and during the course of a search warrant investigation was found in possession of heroin, suboxone, Xanax and testosterone, although the latter two were not confirmed by laboratory testing. In addition, the search revealed that Defendant possessed packaging supplies, such as glassine envelopes, a digital scale, and $1,350.00 dollars in U.S. currency in his pocket at the time of his arrest. The People further indicated that Defendant was in the process of making a drug sale when the search warrant was executed; all of which, the People argued, was indicative of an individual resorting to drug sales for profit.

With respect to Defendant's criminal history, the People indicated that the defendant was convicted of Grand Larceny in the Third Degree, a Class D Felony, based upon his theft and eventually sale of an ATV belonging to another, for which he received a sentence of five years of felony probation. The People submitted that Defendant was given numerous opportunities to comply with treatment while on probation, but refused to attend treatment at the Recovery Center and eventually left that treatment facility without permission, resulting in the revocation of his probation and his being sentenced to a term of state prison. That felony conviction occurred in 2004 when Defendant was 21 years old, which is prior to Defendant's reported use of cocaine, opiate pills and heroin. The People argued that Defendant's repeated failures at probation and parole supervision indicate that he is inappropriate for judicial diversion.

Criminal Procedure Law Section 216.05(3)(b) specifies five factors which the criminal court shall take into consideration when determining a defendant's eligibility for judicial diversion:^[FN1]

Pursuant to this article, the courts are given great deference in evaluating each of the factors and making its decision with respect to judicial diversion. People v. Williams, 105 AD3d 1428 [2013]; Matter of Carty v. Hall, 92 A03d 1191 [2012]. Furthermore, CPL §216 gives a defendant the right to be considered for judicial diversion but does not give him the "inherent right to be granted judicial diversion." People v. Homback, 31 Misc 3d 789 [2010]. In the instant matter, the Court evaluated the facts presented at the judicial diversion hearing pursuant to the five factors specified in CPL §216.00 and finds that Defendant is ineligible of judicial review.

Factors (i) and (ii) of CPL §216.05(3)(b) relate to Defendant being an eligible offender and having a history of drug abuse. Based upon the arguments of counsel and proof submitted it does not appear that either of these factors are disputed and that Defendant is eligible for diversion. Defendant is charged with a B felony drug offense and does not have a prior violent felony conviction, making him eligible for drug court. He also has a history of alcohol and drug abuse going back to when he started abusing opiates, cocaine and heroin when he was 25 years old. However, mere eligibility and prior drug abuse are not solely determinative of whether the defendant is suitable for judicial diversion, and the Court must weigh all the factors specified in CPL §216.05(3)(b).

In making its determination with respect to factor (iii), the Court must consider the purpose of the judicial diversion program. It is the purpose of judicial diversion, as well as the purpose of this Court, to insure that criminal defendants who suffer from substance abuse and addiction get the treatment necessary to effectuate rehabilitation in order to cure the very "sickness" that perpetuated their criminal activity. The Court finds that Defendant's "sickness" is not solely of addiction, but more readily of gaining profit from criminal drug activity in the instant case. This defendant had $1,350.00 dollars in his pocket at the time of his arrest which is not indicative of addiction, but rather banking the proceeds of his drug sales. In contrast, those who suffer from addiction generally have no money and instead resort to larceny or burglary to gain funds necessary to support their addiction. Defendant also possessed a digital scale and packaging material, both of which are indicative of a drug distribution business operated for the purpose of acquiring wealth, not the immediate use of drugs to feed an addiction sickness. Furthermore, Defendant's criminal history is also indicative of an individual who is willing to turn to crime for financial gain. Defendant's prior felony arrest occurred before Defendant's reported addiction to heroin and opiates, which he now claims formed the basis of his criminal activity. When defendant was 21, he was charged with Burglary in the Third Degree and Grand Larceny Third for the theft of an all-terrain vehicle, which he then sold for a profitable $2,400. The Court finds that Defendant's criminal history supports the People's contention that Defendant [*4]engaged in the sale of drugs for profit because of his past experiences with resorting to drug sales and other crimes merely for profit.

As the court stated in People v. Iverson, 32 Misc 3d 1246(A) [2011], a decision which denied judicial diversion, "the allegations are not indicative of the kind of criminal behavior that results from substance abuse or dependence. These are not crimes of someone who compulsively needs to obtain money to purchase drugs for immediate use. Rather, the allegation describe the actions of a businessman selling drugs to make money." See also People v. Hughes, 27 Misc 3d 1235 [2010]; People v. Coco, 28 Misc 3d 563 [2009]. In the case at bar, Defendant's primary motivation for selling narcotics and possessing narcotics and proceeds from sales was for the purpose of making money from the sale of drugs. Defendant's addiction was merely incidental to his profit seeking venture and does not obfuscate his primary motivation of making money.

However, factor (iii) is not the only factor the court finds persuasive in denying defendant application for judicial diversion. The Court also finds that judicial diversion would not effectively address the abuse and dependence issues that led to this defendant's criminal activity.

First, the primary purpose of the Drug Court program is to alleviate the cause of criminal activity where criminal activity is based upon substance abuse or dependence. Judicial diversion treats substance abuse or dependency and not profit motivated crime; therefore, judicial diversion would not effectively address the issues that led to this defendant's criminal activity.

Second, with respect to factor (iv), as outlined by the People and in the defendant's drug court evaluation, the defendant has repeatedly failed at attempts for substance abuse rehabilitation. He has failed twice at probation. One of those failures was based upon his refusal to comply with treatment and leaving a treatment center without permission which resulted in a state prison sentence. He was discontinued from treatment at the Synergy treatment program, left treatment at the Recovery Center, and he failed parole supervision due to technical violations. As in People v. Hombach, 31 Misc 3d 792 [2010], this Court finds that, "judicial diversion will be unable to effectively address defendant's substance abuse or dependence because it is unlikely that the defendant could abide by the strict conditions set forth in the judicial diversion program." In the instant matter, the defendant has continuously failed to comply with every sentence and treatment recommendation in a community based environment set forth, including failure at the very same facilities that this Drug Court, through judicial diversion, utilizes to address substance abuse and dependency. The Court also finds that Defendant's treatment and criminal history are indicative of his unwillingness to comply with treatment goals and court orders rendering the rules established through Drug Court and judicial diversion ineffective in treated this defendant.

Lastly, institutional confinement of this defendant is necessary for public safety. This is a defendant who fails to comply with the sentences imposed by courts. This defendant has had many prior opportunities to address his substance abuse problems and has failed and refused treatment. Confinement is the only way that this defendant will comply with the sentence imposed by this Court. Furthermore, institutional confinement, and not Drug Court, is necessary because Defendant's presence would merely jeopardize the success of the judicial diversion [*5]program. An individual who has not followed the rules of treatment programs in the past and has a propensity to resort to crime to generate profit should not be placed into an alternative court environment with people who genuinely suffer from abuse and dependence, and are earnest about their rehabilitation. Placing a drug dealer with a history of non-compliance with treatment rules into a group of drug users has the potential to destroy the treatment goals of other individuals and the overall goal of drug court placing the public at risk.

Based upon the foregoing, the defendant is not an eligible candidate for the drug court program.

ORDERED, that Defendant's application for participation within the judicial diversion