Defendant has been charged in an indictment with two counts of the B felony of Criminal Sale of a Controlled Substance in the Third Degree (PL § 220.39[1]) based upon the sale of heroin to an undercover police officer on two separate occasions. The People have consented to the defendant's entry into Judicial Diversion. Defendant now also seeks to participate in Judicial Diversion without the prior entry of a guilty plea pursuant to CPL §216.05 (4) (b). While the People do not oppose the defendant's application to enter Diversion, they do oppose defendant's application to enter Diversion without first pleading guilty.

Consistent with the Diversion statute (CPL § 216.05), a defendant who is granted Judicial Diversion by this Court pleads guilty to a felony and signs a Drug Court plea agreement. Sentence is deferred and the Court monitors the defendant's compliance and success in treatment. If defendant successfully completes the program, the plea is withdrawn and the case is dismissed. If defendant fails in the program or is rearrested, under the plea agreement, he may be sentenced to a predetermined prison sentence (CPL § 216.05 [9][c]).

In a rare case where the Court finds the existence of exceptional circumstances, CPL §216.05 (4)(b) permits a defendant to participate in Judicial Diversion without the entry of a [*2]guilty plea. Under this statute, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe collateral consequences.

Defendant, a lawful permanent resident of this country, argues that the no-plea provision of the Diversion statute should apply to him because, as a non-citizen, a plea to the charge in the indictment would make him deportable. He essentially argues that the possibility of deportation resulting from a plea is, in his case, a severe collateral consequence and that this qualifies as an exceptional circumstance under the statute.

This Court has previously written on this issue. See People v Radonich, 49 Misc 3d 1212A and People v Brignolle, 41 Misc 3d 949. As stated in both Radonich and Brignolle and re-iterated here, the possibility of deportation for a non-citizen does not, in and of itself, require a per se finding of exceptional circumstances and the attendant entry into Diversion without a plea. To do so would create a two-tiered system which would require someone born in the United States to enter a guilty plea prior to entering into Diversion while granting a non-citizen the more favorable status of entering into Diversion without first pleading guilty. Whether exceptional circumstances exist must be determined on a case by case basis.

In the Brignolle case, the Court considered several factors before determining that exceptional circumstances existed. Mr. Brignolle, who was 49 years of age, had resided in the United States with his parents and all his siblings for the last 43 years. He had no ties to his place of birth. Mr. Brignolle was charged with a controlled substance offense based on weight. There was no allegation that Mr. Brignolle had intended to sell the controlled substance. Furthermore, Mr. Brignolle had no criminal record, had been successfully participating in an intensive outpatient drug program and had not re-offended since his arrest. Additionally, Mr. Brignolle had a long history of employment in the fashion industry and was operating a small business with his girlfriend. Under the particular facts and circumstances of the Brignolle case, the Court found the possibility of deportation to be a severe collateral consequence and allowed Mr. Brignolle to enter Diversion without a plea.

In the Radonich case, the defendant was in the business of selling drugs. The defendant was 25 years old and, other being a drug seller, was unemployed at the time of his arrest and did not assert any history of legitimate employment. Furthermore, the defendant had a prior conviction for possession of a firearm. In the Radonich case, while recognizing that the possibility of deportation would be an unwelcome and adverse consequence of a conviction, this Court nevertheless found that there were no factors which would distinguish that defendant from any other non-citizen who engaged in the business of selling drugs. And because the prospect of deportation applied to all such drug-selling non-citizens, this Court concluded that this prospect, in and of itself, was not an exceptional circumstance. Accordingly, entry into Diversion without a plea was denied.

In the instant case, the defendant, Rocco Rafaniello, who is 46 years old, came to this country when he was a child, as did both Mr. Brignolle and Mr. Radonich. Unlike Mr. Brignolle, but similar to Mr. Radonich, this defendant was not employed at the time of his arrest and had been unemployed or only occasionally employed for several years. But unlike Mr. Brignolle, and similar to Mr. Radonich, Mr. Rafaniello is charged with selling drugs and he has several prior convictions.

In 1985, Mr. Rafaniello pled guilty to the A misdemeanor of Criminal Possession of a forged Instrument in the Third Degree (PL §170.20) and received a conditional discharge. The [*3]following year, he again pled guilty to the same crime and was sentenced to pay a fine of $500. In 1987, the defendant was arrested for Criminal Possession of a Controlled Substance in the Seventh Degree. A bench warrant was issued in that case. Following his return on the warrant, the defendant pled guilty to Disorderly Conduct (PL § 240.20), a Violation, and was sentenced to 5 days of community service and was fined.

In 1994, Mr. Rafaniello pled guilty to Criminal Possession of a Controlled Substance in the Seventh Degree in full satisfaction of an indictment charging him with felony drug charges and was sentenced to three years of probation and was fined $1,000. A bench warrant had ben issued in that case. In 1996, the defendant again pled guilty to Criminal Possession of a Controlled Substance in the Seventh Degree and received a conditional discharge. In 2004, Mr. Rafaniello again pled guilty to Criminal Possession of a Controlled Substance in the Seventh Degree in full satisfaction of an indictment charging him with felony drug charges. Bench warrants had also ben issued in that case. Mr. Rafaniello was sentenced to three years of probation. In 2005, probation was revoked and defendant was sentenced to six months in jail. Also in 2004, the defendant pled guilty to Criminal Possession of a Controlled Substance in the Seventh degree in another case in which he also was sentenced to three years of probation. That probation was revoked in 2005 and he was sentenced to ninety days in jail.

Presumably because of his criminal record, the Federal Government initiated removal proceedings against Mr. Rafaniello. In March of 2005, Mr. Rafaniello was granted a cancellation of removal by an Immigration Judge. This cancellation allowed Mr. Rafaniello to remain in the United States and accorded him further opportunity to naturalize his citizenship status—a process which Mr. Rafaniello apparently has never pursued.

In the instant case, the defendant was in the business of selling drugs. He is charged with selling drugs to an undercover police officer on two separate occasions over a five week period. Defendant's residence was also the target of a search warrant. The Court is aware of case law which holds that a defendant should not be denied Diversion solely because he was charged with selling drugs rather than simply possessing them (see People v DeYoung, 95 AD3d 71 [2nd Dept, 2012]). Consistent with that case law, this Court will grant the defendant the right to participate in Diversion. However, that case law does not preclude a Court from utilizing such a distinction in the context of determining whether a defendant should be allowed to enter Diversion without a plea. The defendant is 46 years old and, other than being in the business of selling drugs, was unemployed at the time of his arrest and does not assert any recent history of substantial legitimate employment. Furthermore, the defendant has several prior convictions.

While the possibility of deportation may be an unwelcome and adverse consequence of a guilty plea, there are no factors in this case which would distinguish this defendant from any other non-citizen who engages in the business of selling drugs. Because the prospect of deportation applies to all such drug-selling non-citizens, this prospect, in and of itself, is not an exceptional circumstance.

Defendant's application to enter Diversion without the entry of a guilty plea is denied.

This constitutes the decision and order of the Court.