Supreme Court, New York County, December 19, 2019

Cyrus R. Vance, Jr., District Attorney, New York City (Joseph Ippolito of counsel), for plaintiff.

Legal Aid Society (Jenny I. Hurwitz of counsel) for defendant.

This standing decision and order addresses whether the court has the statutory authority pursuant to Criminal Procedure Law § 160.58 to conditionally seal criminal records of defendants who successfully complete a judicial diversion drug treatment program. It is this court's position that CPL 160.58 confers on judges the authority to conditionally seal criminal records related to a qualifying, enumerated offense of a defendant who successfully completes a judicial diversion drug treatment program. A commonsense reading of the statute, coupled with [*2]the legislative intent which can be clearly deduced from the contextual background of the statute, provides more than ample support for this conclusion.

In October 2009, article 216 of the Criminal Procedure Law took effect, expanding judicial discretion to divert qualifying individuals with substance abuse disorders to drug court treatment programs in lieu of prison. Article 216 also allows for the conditional sealing of cases upon successful completion of a court-ordered drug diversion program. (New York State Division of Criminal Justice Services, Criminal Justice Update, Drug Law Series Report No. 5, 2009 Drug Law Changes 2014 Update [May 2014].)

Section 160.58 (1) of the CPL states that a defendant convicted of a qualifying, enumerated offense who

"successfully completed a judicial diversion program under article two hundred sixteen of this chapter, or one of the programs heretofore known as drug treatment alternative to prison or another judicially sanctioned drug treatment program of similar duration, requirements and level of supervision, and has completed the sentence imposed for the offense or offenses, is eligible to have such offense or offenses [conditionally] sealed pursuant to this section" (emphasis added).

{**66 Misc 3d at 243}The People argue that CPL 160.58 literally does not apply to cases where a defendant successfully completes judicial diversion because the defendant is not "sentenced" but rather, is allowed to withdraw his/her guilty plea and the charges against him/her are dismissed. Based on this interpretation of the statute, conditional sealing would not apply to the very offense(s) that make the defendant eligible for judicial diversion in the first place. Instead, conditional sealing would only apply to any convictions that may remain after a defendant's successful completion of a judicial diversion program. This interpretation of CPL 160.58 would make conditional sealing virtually inapplicable to felony offenses before the court. Moreover, it is completely at odds with the very text within the statute which states that the defendant "is eligible to have such offense or offenses [conditionally] sealed," not other remaining offenses. The sole case often cited by the People to support this reading of CPL 160.58 is People v Batista (53 Misc 3d 1117, 1119 [Sup Ct, NY County 2016]). In People v Batista, the court itself recognizes that this reading "is clearly at odds with the goals of judicial diversion and with the public policy supporting the sealing statutes" (id. at 1120). The court goes as far as calling upon "the legislature to address this anomaly" (id.).

It has been a decade since CPL 160.58 was enacted and, although unartfully drafted, the purpose of this statute and the legislature's intent behind it are abundantly clear. CPL 160.58 (2) clearly states: "The court that sentenced the defendant to a judicially sanctioned drug treatment program may on its own motion . . . order that all official records and papers relating to the arrest, prosecution and conviction which resulted in the defendant's participation in the judicially sanctioned drug treatment program be conditionally sealed" (emphasis added). Since upon successful completion of a judicial diversion program, a defendant is allowed to withdraw his/her guilty plea and the charges against him/her are dismissed, the defendant is technically never "sentenced" since the framework is based upon the deferral of sentencing by the court (see CPL 216.05 [9] [c], [e]). A defendant is only sentenced, in accordance with the terms of the drug treatment agreement, if he/she does not successfully complete the judicial diversion program. Given this contextual background, it is evident that this was not the intent of the legislature. New York Attorney General Eric [*3]Schneiderman explained the purpose of conditional sealing as follows:

"Conditionally sealing the convictions of non-violent {**66 Misc 3d at 244}drug offenders is one tool for reintegration and for reducing recidivism rates. Under the conditional sealing provisions in the Rockefeller Drug reform package, judges have the discretion to conditionally seal criminal records following the successful completion of a drug treatment program. . . . It is now judges, with the advice of prosecutors, who are empowered to find the most appropriate ways to help non-violent offenders return to society as functioning, contributing citizens" (Political Action for Candidate Election: Attorney General Candidate Forum 2010).

While technically not a "sentence," requirements to fulfill a judicial diversion mandate are analogous to post sentence treatment. In fact, judicial diversion is more structured than post sentences like conditional discharge, parole and probation drug treatment mandates. Treatment and court oversight ranges from a minimum of one to two years or more depending on whether participants experience relapses or any other difficulties while in treatment. The process is very structured and strenuous and participants are strictly monitored (see Samantha Kantor, Building a Future by Sealing the Past, 24 Atticus [No. 4] 32 [winter 2013], citing People v Smith, Sup Ct, NY County, 2011, indictment No. 0234-2009 [holding that a diversion mandate is the equivalent of a conditional sentence which entitles defendant to sealing under CPL 160.58]). Defendants are mandated to either outpatient treatment or residential treatment. Outpatient treatment ranges from a period of 12 to 18 months and residential treatment ranges from 12 to 24 months and includes an outpatient portion (i.e., if mandated to 12 month residential treatment, nine months are inpatient and three months are outpatient and if mandated to a 24 month residential mandate, 12 months are inpatient and 12 months are outpatient). If a defendant relapses during treatment, his/her mandate is extended by 30 days. There are graduated sanctions imposed by the court for noncompliance ranging from essay writing to week-long remands. Defendants are toxicology tested at least once a week and are also tested prior to their monthly court dates. Moreover, in order to successfully complete judicial diversion, defendants must not only complete treatment and maintain sobriety but must additionally complete eight hours of community service and obtain suitable housing and full-time employment.

Two decisions, People v Smith (Sup Ct, NY County, 2011, indictment No. 0234-2009) and Matter of K. (35 Misc 3d 742 {**66 Misc 3d at 245} [Sup Ct, NY County 2012]), help to expand the coverage of CPL 160.58. In People v Smith, Judge Eduardo Padro, the presiding judge in Manhattan Drug Court at the time, affirmed that since conditional sealing was enacted as part of a new understanding of drug issues, the laws must be read as a whole. He opined,

"The legislature created Article 216 specifically granting courts for the first time the authority to vacate pleas and to dismiss entire indictments when defendants successfully complete drug treatment programs. Legal analysts have noted that this legislation reflects a major shift in society's understanding of issues of drug abuse and dependence since days of the passage of the Rockefeller Laws. This innovative statutory scheme incorporates the therapeutic treatment model within the criminal justice system. Other corollary statutes, such as C.P.L. § 160.58 and CPL § 410.91 (5) were passed granting the court additional authority to fully carry out the purpose of Article 216" (Samantha Kantor, Building a Future by Sealing the Past, 24 Atticus [No. 4] 32, 34 [winter 2013], citing People v Smith, Sup Ct, NY County, 2011, indictment No. 0234-2009).

In Matter of K., Justice Uviller expanded the population eligible for conditional sealing by ruling that the shock incarceration program fell within the "another judicially sanctioned drug [*4]treatment program" prong of the statute (see Samantha Kantor, Building a Future by Sealing the Past, 24 Atticus [No. 4] 32, 34 [winter 2013], citing Matter of K., 35 Misc 3d 742, 745 [Sup Ct, NY County 2012]). Justice Uviller held that the "shock incarceration" program qualified as a judicially mandated program even though courts do not specifically order that defendants participate in it based on its highly regimented custodial military style program and intensive drug and alcohol program (id.).

Justice Uviller affirmed the statutory purpose of sealing criminal records: to allow criminal defendants the opportunity to restart their lives without the shadow of a drug conviction, thereby affording them a greater chance at successful reintegration into their communities (id.). This reading of conditional sealing takes into account the very real consequences that people suffer even if their record is limited to an arrest for drugs. Conditional sealing of criminal records is a narrowly{**66 Misc 3d at 246} tailored procedure enacted to provide a "meaningful second chance for individuals who have a proven commitment to rehabilitation as shown by factors such as a successful completion of a judicially sanctioned drug treatment program" (People v Modesto, 32 Misc 3d 287, 290 [Sup Ct, Bronx County 2011]).

This court's reading of CPL 160.58 allows the goals of drug treatment to be more fully realized as it fulfills the legislative intent by allowing participants a second chance without the burden of a drug arrest or conviction. Moreover, because sealing is conditional, if there is a further arrest, any conviction previously sealed by the court is unsealed (see CPL 160.58 [8]). Conditional sealing would not apply to prior felonies as the statute would only be applicable to the felony offenses before the court and up to three misdemeanors (id. § 160.58 [1], [2]). While it is this court's primary intention to grant conditional sealing for non-predicate felony offenders who successfully complete court mandated drug treatment, it also recognizes the importance of identifying those individuals who have been rearrested and either successfully or unsuccessfully completed drug treatment in the past, so that additional opportunities for treatment are not blindly granted.