Criminal Court of the City of New York, Kings County, April 5, 2022

Eric Gonzalez, District Attorney, Brooklyn (Felix De Jesus of counsel), for plaintiff.

Legal Aid Society, Brooklyn (Lucy Rose Gubernick of counsel), for defendant.

The case stems from an accident with minor injuries to another driver on May 17, 2020.^[FN1] According to the complaint, Police Officer Jeffrey Rosa found C.D.B. in the seat of a 2017 Nissan Sentra, with the keys in the ignition, and the engine running. The complaint alleges that C.D.B. admitted to driving the vehicle, and according to Officer Rosa, he also exhibited signs of alcohol intoxication, namely, slurred speech, bloodshot and watery eyes, the odor of alcohol on his breath, and an unsteady gait. Officer Rosa further states that C.D.B. consented to a chemical test of his breath, yielding an alleged blood alcohol concentration of .22%. C.D.B. was charged, inter alia, with aggravated operation of a motor vehicle while intoxicated, in violation of Vehicle and Traffic Law § 1192 (2-a) (a), an unclassified misdemeanor. Now a 32-year-old, African-American male, C.D.B.'s May 17, 2020 arrest represented his first contact with the criminal justice system.

C.D.B. entered alcohol treatment in July 2020 and transferred to a second program in November 2020. His reports from treatment showed regular attendance and negative toxicology screenings for alcohol and other substances.

On November 10, 2020, the court rejected the People's offer that C.D.B. enter a conditional plea pending confirmation that (a) the victim's injuries were minor; and (b) the [*2]victim consented to the proposed disposition.^[FN2] (See tr of proceedings, dated Nov. 10, 2020.) Thereafter, on December 10, 2020, following the People confirming the victim's condition and consent, C.D.B. entered a conditional plea to the Vehicle and Traffic Law § 1192 (2-a) (a) charge, as well as to operating a motor vehicle while impaired by alcohol in violation of Vehicle and Traffic Law § 1192 (1), a traffic infraction.

{**75 Misc 3d at 883}The conditions of C.D.B.'s plea required successful completion of a minimum of six months' treatment by a counselor certified by the New York State Office of Alcoholism and Substance Abuse Services, wearing a secure continuous remote alcohol monitoring (SCRAM) ankle bracelet for 90 days, and completing the six-hour Driver Improvement Program, and the two-hour Victim Impact Panel (VIP) program offered through Mothers Against Drunk Driving. At the VIP program, C.D.B. would meet with victims (and the families of deceased victims) of drunk driving accidents. A further requirement of C.D.B.'s conditional plea was that he live a law-abiding life, including no new arrests. (See plea tr of Dec. 10, 2020.)

C.D.B. had lost his job working as a delivery driver because of his arrest, but he found new work in construction. By the first post-plea compliance conference, on March 24, 2021, C.D.B. had successfully completed the 90 days of SCRAM monitoring and the VIP program. C.D.B. paid out of pocket $1,440 for the SCRAM ankle bracelet and an additional $100 for the VIP program.

At the March 24, 2021 appearance, however, the court learned that C.D.B. had been rearrested in Kings County for a new drunk driving case. Specifically, according to the complaint in that matter, on March 18, 2021, a patrol officer stopped C.D.B., after being alerted by the sound of screeching tires. C.D.B. allegedly rear-ended a vehicle; fled the scene; and had the odor of alcohol on his breath, slurred speech, and watery eyes. This time, C.D.B. refused to consent to a chemical test of his breath. This arrest was now C.D.B.'s second contact with the criminal justice system.

Upon learning of the rearrest, the court ordered that the voiding of C.D.B.'s conditional plea be held in abeyance and requested the Department of Probation to prepare a presentence report (PSR). (See tr of proceedings, dated Mar. 24, 2021.) Thereafter, Probation prepared a detailed PSR documenting childhood trauma suffered by C.D.B. Probation believed C.D.B.'s trauma was relevant to understanding his conduct both in the instant case and his rearrest.

Considering this disclosure, and subsequent actions by C.D.B., described in further detail herein, the issue now before this court is whether to void his original conditional plea. For the reasons stated herein, after reviewing all the underlying materials in the instant case, and after discussions with Probation, the People, and the defense, including C.D.B., the court{**75 Misc 3d at 884} finds that C.D.B. has earned the benefit of his conditional plea because of his proactive engagement in treatment prior to and after his rearrest, including treatment with Eye Movement Desensitization and Reprocessing (EMDR) described herein.

A. Childhood

As reported in the PSR, C.D.B. was born on January XX, 19XX, in Brooklyn, New York to P.E.B. and H.D. (PSR at 4.)^[FN3] C.D.B.'s parents never lived together, and he had little contact with his father, seeing him once every three to four years. (Id.)

Throughout his childhood, C.D.B. reports being emotionally and physically abused by his mother's friends. They told him that he was "no good" and that he would "amount to nothing." (Id.) Both of C.D.B.'s parents struggled with alcoholism and did nothing to intervene or protect their son from abuse. (PSR at 6.) Over the years, C.D.B. would find himself hiding at the home of other family members to avoid the continued abuse he experienced at the hands of his mother's friends. (Id.)

B. Mental Health and Substance Abuse History

According to the PSR, C.D.B. suffers from depression, anxiety, and post-traumatic stress disorder (PTSD), which he has self-medicated as an adult using alcohol and marijuana. (PSR at 6.) C.D.B. reports beginning to abuse alcohol at age 19, using it weekly to "avoid painful memories." (Id.)

In 2014, C.D.B. began experiencing alcohol-induced auditory and visual hallucinations, leading to his admission at a hospital. (PSR at 5.) Doctors prescribed Haldol to C.D.B., an antipsychotic medication that is used to treat schizophrenia. He was released from the hospital after three days when his mother signed him out. (Id.)

C.D.B. responded poorly to Haldol, unable to tolerate the severe side effects, including dizziness, lightheadedness, drowsiness, headache, sleep disturbance, and anxiety. (PSR at 5.) After{**75 Misc 3d at 885} being discharged from the hospital, C.D.B. voluntarily enrolled himself at a treatment center for alcohol treatment. He did not inform his counselors, however, about his childhood trauma.

Over the next few years, C.D.B. was in and out of mental health treatment, although he had no contact with the criminal justice system. In 2017, he was briefly admitted to a hospital's psychiatric ward.

After his first arrest, the instant case, in July 2020, C.D.B. enrolled in alcohol treatment at a substance abuse program. During the intake process, that provider determined, after a mental health evaluation, that C.D.B. needed no psychiatric medications. In November 2020, approximately five months after his arrest in the present case, C.D.B. switched his treatment to another recovery services program and was referred to a higher level of care due to concerns regarding his mental health. Then, on May 13, 2021, C.D.B. enrolled in another outpatient program. He has continued since that time to attend this program twice a week for individual and group counseling sessions. C.D.B. has consistently attended this program with negative [*4]toxicology results in the random screenings.

C. Trauma-Focused Treatment

Following review of the PSR, the court contacted the Department of Probation concerning services available for addressing C.D.B.'s childhood trauma. Both the court and Probation believed that C.D.B.'s alcohol abuse and conduct in the present case, as well as his alleged conduct in the new matter, were interrelated. Specifically, the court asked whether the Department of Probation could secure EMDR services for C.D.B.

The assigned probation officer said she had no familiarity with EMDR, but after conducting due diligence, responded that the Probation Department could refer C.D.B. for EMDR treatment as part of any probationary sentence. The Legal Aid Society, who represents C.D.B., embraced C.D.B. receiving EMDR treatment, independently contracted with a trained service provider, and requested that the court continue to hold voiding C.D.B.'s conditional plea in abeyance pending review of his progress with that practitioner.

1. EMDR Therapy

EMDR therapy was first developed in 1987 to treat trauma, including PTSD. (See Blackburn v United States, — Fed Appx{**75 Misc 3d at 886} —, — n 1, 2021 WL 3027979, *2 n 1, 2021 US App LEXIS 21268, *4 n 1 [10th Cir, July 19, 2021], citing Francine Shapiro, Eye Movement Desensitization and Reprocessing [EMDR] Therapy: Basic Principles, Protocols, and Procedures at 1-7 [3d ed 2018]; Francine Shapiro, EMDR: The Breakthrough Eye Movement Therapy for Overcoming Anxiety, Stress, and Trauma [2004].) EMDR therapy is "an eye movement retraining type of a therapy in which an individual learns to do specific eye motions in order to relax." (See J.S. v State Dept. of Corr. Servs., 2011 WL 723105, *5, 2011 Neb App LEXIS 29, *12 [Ct App, Mar. 1, 2011, No. A-10-451].)

Courts across the country have recognized EMDR as highly effective at treating individuals suffering from PTSD resulting from sexual assault. (See e.g. Bailey v State, 2007 WL 79544, *1, 2007 Tex App LEXIS 208, *1 [Ct App, Jan. 11, 2007, No. 2-05-394-CR]; Riniker v Berryhill, 2018 WL 1558276, *1, 2018 US Dist LEXIS 53912, *2 [ND Iowa, Mar. 30, 2018, No. 16-CV-1035-KEM]; United States v D.W.B., 74 MJ 630 [N-M Ct Crim App 2015].) This court is unaware of any prior New York criminal defendant undergoing EMDR as part of a mandated treatment protocol, nor is this court aware of any prior published or unpublished New York state case discussing EMDR in any context.

Although the admission of expert testimony on EMDR in the present case is not before the court, the technique is widely accepted within the scientific community in the United States and throughout the world. (See Frye v United States, 293 F 1013 [DC Cir 1923] [general acceptance to determine admissibility of scientific evidence]; People v Williams, 35 NY3d 24, 37 [2020]; see also Daubert v Merrell Dow Pharmaceuticals, Inc., 509 US 579 [1993] [theory or technique in question can be and has been tested; has been subjected to peer review and publication; has known or potential error rate; has and maintains standards controlling its operation; and has attracted widespread acceptance within a relevant scientific community].)

Numerous peer-reviewed articles and controlled studies from scientists at renowned institutions (e.g., Harvard University, UCLA, Leiden University [Netherlands], University of Amsterdam [Netherlands], and University of Turin [Italy]) prove EMDR's efficacy for treating numerous forms of PTSD. (See Bessel A. van der Kolk et al., A Randomized Clinical Trial of [EMDR], Fluoxetine, and Pill Placebo in the Treatment of{**75 Misc 3d at 887}[PTSD]: Treatment Effects and Long-Term Maintenance, 68 J Clinical Psychiatry 37, 37-46 [2007]; John G. Carlson et al., [EMDR] [*5]Treatment for Combat-Related [PTSD], 11 J Traumatic Stress 3, 3-24 [1998]; Robert Stickgold, EMDR: A Putative Neurobiological Mechanism of Action, 58 J Clinical Psych 61, 61-75 [2002].)^[FN4]

Studies of randomized clinical trials have also confirmed the efficacy of EMDR treatment for PTSD in comparison to other treatment modalities. (See Emmanuele Arabia et al., EMDR for Survivors of Life-Threatening Cardiac Events: Results of a Pilot Study, 5 J EMDR Prac & Rsch 2, 2-13 [2011] [EMDR more effective than imaginal exposure therapy for reducing PTSD, depressive, and anxiety symptoms in 42 patients undergoing cardiac rehabilitation]; Liuva Capezzani et al., EMDR and CBT for Cancer Patients: Comparative Study of Effects of PTSD, Anxiety, and Depression, 7 J EMDR Prac & Rsch 134, 134-143 [2013] [randomized pilot study for EMDR and cognitive behavioral therapy for 21 cancer patients finding EMDR superior therapy with 95.2% of patients reporting no further PTSD symptoms after treatment]; Sara Carletto et al., Treating [PTSD] in Patients with Multiple Sclerosis: A Randomized Controlled Trial Comparing the Efficacy of Eye Movement Desensitization and Reprocessing and Relaxation Therapy, 7 Frontiers in Psych [Apr. 2016], https://www.frontiersin.org/articles/10.3389/fpsyg.2016.00526/full [EMDR treatment of patients with multiple sclerosis results in 85-100% PTSD remission]; Carlijn de Roos et al., A Randomized Comparison of [CBT] and [EMDR] in Disaster-Exposed Children, 2 Eur J Psychotraumatology [Apr. 2011], {**75 Misc 3d at 888}https://www.tandfonline.com/doi/full/10.3402/ejpt.v2i0.5694 [gains reached in fewer EMDR sessions versus cognitive behavioral therapy in randomized comparison in disaster exposed children]; Julia Diehle, Trauma-Focused [CBT] or [EMDR]: What Works in Children with [PTSD] Symptoms? A Randomized Controlled Trial, 24 Eur Child & Adolescent Psychiatry 227, 227-236 [2015] [both treatments found to be effective].)

Metadata analyses of EMDR in academic literature also support its use to process and transform traumatic memories. (See Jonathan I. Bisson et al., Psychological Therapies for Chronic [PTSD] in Adults, 12 Cochrane Database of Systematic Reviews [Dec. 2013], https://www.cochranelibrary.com/cdsr/doi/10.1002/14651858.CD003388.pub4/full [research and review of psychological therapies for [*6]chronic PTSD in adults indicates that EMDR and cognitive behavioral therapy are superior to other treatments]; Christopher William Lee et al., A Meta-Analysis of the Contribution of Eye Movements in Processing Emotional Memories, 44 J Behav Therapy & Experimental Psychiatry 231, 231-239 [2013]; Bradley V. Watts et al., Meta-Analysis of the Efficacy of Treatments for [PTSD], 74 J Clinical Psychiatry 541, 541-550 [2013] [meta-analysis finding EMDR and cognitive behavior therapy effective treatments]; Rebekah Bradley, Ph.D., et al., A Multidimensional Meta-Analysis of Psychotherapy for PTSD, 162 Am J of Psychiatry 214, 214-227 [2005] [EMDR is equivalent to exposure and other cognitive behavioral treatments and all "are highly efficacious in reducing PTSD symptoms" (id. at 225)]; Ying-Ren Chen et al., Efficacy of [EMDR] for Patients with [PTSD]: A Meta-Analysis of Randomized Controlled Trials, 9 PLoS One [Aug. 2014], https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0103676.)

To that end, EMDR treatment has begun garnering more recognition globally for its effectiveness in treating PTSD. Currently, it has the recommendation across most clinical practical guidelines, including the U.S. Department of Veterans Affairs, the U.S. Department of Defense Clinical Practice Guideline for Management of PTSD, and the International Society for Traumatic Stress Studies, among others. (Robert J. Ursano, M.D., et al., Practice Guideline for the Treatment of Patients with Acute Stress Disorder and [PTSD], APA Prac Guidelines 1, 59 [2010], available at {**75 Misc 3d at 889}https://psychiatryonline.org/pb/assets/raw/sitewide/practice_guidelines/guidelines/acutestressdisorderptsd.pdf [The American Psychological Association has found EMDR to be effective for treating symptoms of acute and chronic PTSD, and "give(s) . . . patient(s) more control over the exposure experience" because it does not rely on a verbal account. "Consequently, (EMDR) may prove advantageous for patients who cannot tolerate prolonged exposure as well as for patients who have difficulty verbalizing their traumatic experiences"].)

2. C.D.B.'s EMDR Treatment

C.D.B. has now been in EMDR treatment since mid-September 2021, approximately seven months, with a psychotherapy services provider secured by Legal Aid. The positive effect of his treatment became readily apparent soon after he started. For example, on September 20, 2021, he appeared before the court having undergone his first session two days prior. C.D.B. reported that the treatment was like "peeling back the layers of an onion" and that he was suddenly able to recall deeply seated memories from his childhood. He also reported for the first time in his memory not feeling "tense" when walking around in public. (See tr of proceedings, dated Mar. 30, 2022.)

Since that time, C.D.B.'s treatment provider has documented his continued engagement with EMDR, including that he is "motivated and voices his desire to make some significant changes in his life." (Rep from provider, dated Oct. 28, 2021.) In a recent update letter to the court, the treatment provider noted that C.D.B. "has responded well to EMDR therapy, which allows him to identify and reprocess remaining triggers, situations, and people, and to address any residual urges that could lead to relapse or disruptive behavior." (Rep from provider, dated Feb. 20, 2022.) As the report concludes:

"C.D.B. continues to function at a moderate level . . . He is . . . experiencing mild PTSD. He has experienced nightmares for the last year. Such symptoms have warranted psychotherapeutic intervention that will allow C.D.B. to understand the links between his trauma and his self-regulation and coping skills. The aim is for C.D.B. to achieve adequate mental health and reach an optimum level of functioning." ([*7]Id.)

Since C.D.B. began EMDR treatment, he reports being

"in a different space . . . going to [his] treatment in the program . . . opening up with the other clients in there, understanding different people . . . {**75 Misc 3d at 890}I have been able to get some things out from my past . . . as you know about . . . so it's been helping. You know, I am looking at the world differently . . . I am trying to be a good product of society . . . I am mad how I put myself in this position to get here, but, for the most part, everything is starting to reveal itself in a good path." (See tr of proceedings, dated Oct. 29, 2021.)

An evolution of C.D.B.'s diagnoses may confirm the success of his EMDR programming. Specifically, in July 2021, C.D.B. underwent a psychiatric evaluation where he was diagnosed with schizophrenia (paranoid) and alcohol use disorder in remission. He was prescribed multiple medications, including Zyprexa and Cogentin. C.D.B. was re-evaluated on February 20, 2022, after attending several EMDR sessions and having maintained his medication regimen. At that point, he was diagnosed with PTSD with alcohol use disorder in remission.

The present issue before this court is whether to void C.D.B.'s conditional plea, and, if the plea is not voided, to craft an appropriate sentence for the charge of impaired driving under Vehicle and Traffic Law § 1192 (1). The determination of an appropriate sentence requires consideration of, "among other things, the crime charged, the particular circumstances of the individual before the court and the purpose of a penal sanction, i.e., societal protection, rehabilitation and deterrence." (See People v Farrar, 52 NY2d 302, 305 [1981].) The sentencing court is afforded broad "discretionary powers with regard to the imposition of a sentence." (See People v Rosenthal, 305 AD2d 327, 329 [1st Dept 2003].)

There is no doubt that the instant crime charged is a serious offense. The complaint alleged that C.D.B. was observed on May 17, 2020, at 2:38 a.m., sitting in the driver's seat of a car with the engine running. The complaint further alleges that C.D.B. exhibited signs of intoxication: slurred speech, bloodshot eyes, and a blood alcohol content of .22%. Further, C.D.B. had an automobile accident, with injuries to another driver, although those injuries were minor, and that individual consented to C.D.B. receiving a conditional plea.

Driving while intoxicated has been noted by multiple courts as a "very serious crime" (County of Nassau v Canavan, 1 NY3d 134, 140 [2003]), that has posed a "menace" to roadway safety {**75 Misc 3d at 891}(People v Ward, 307 NY 73, 77 [1954]) and causes "catastrophic consequences." (People v Heidgen, 22 NY3d 259, 279 [2013].) Twice, C.D.B. exposed Kings County residents to the crime of driving while intoxicated, including an accident with injury to another. These are facts that this court takes seriously.

C.D.B. has, however, expressed deep remorse for his participation in the offenses, and now, after undergoing EMDR treatment, recognizes the connection between his alcoholism and previously untreated trauma. Furthermore, C.D.B. has continually accepted responsibility for his actions and voluntarily engaged in treatment. (See tr of proceedings, Mar. 30, 2022 ["I should never have been driving. I started drinking (when) I was 19 years old, and it took over my life for the next 5-10 years. I now understand the dangerousness of being behind the wheel. I think about it every single day"].)

Expressions of remorse and acceptance of responsibility can be mitigating factors in sentencing. (People v Kerringer, 195 AD3d 861, 863 [2d Dept 2021].) In Kerringer, the Court noted that the defendant had "pleaded guilty and has continued to express remorse throughout the judicial process," and, similar to C.D.B.'s case, that the criminal conduct was "aberrational" as defendant had no prior criminal history. (See id. at 862-863.)

This case involves a defendant with a documented history of trauma and subsequent alcohol abuse to self-medicate. Despite this condition persisting for years, this case, as well as C.D.B.'s subsequent rearrest, are his only contacts with the criminal justice system. There is a direct line between C.D.B.'s self-medication and the instant charges, as well as C.D.B.'s new case.

C.D.B. lacks a criminal history and has consistently accepted responsibility for his actions and expressed remorse. (See tr of proceedings, dated Mar. 30, 2022; see also support letter from John J. Arndt, dated Sept. 19, 2021 ["I have worked with many people throughout the years and can say without reservation that he is trustworthy, honest, and mindful of his actions and how they can affect others"].)

C.D.B.'s recidivism does not indicate a disregard for the court or the law but rather someone abusing alcohol who has temporarily relapsed in an otherwise successful course of rehabilitation. For almost four months between his conditional plea in the present case and his rearrest, C.D.B. was actively engaged in treatment and remained alcohol free. He completed the VIP program and wore a SCRAM ankle bracelet without{**75 Misc 3d at 892} incident, both of which involved a personal outlay of significant funds. He also attended scheduled treatment sessions and tested negative on his toxicology exams. Despite these successes, C.D.B. was rearrested with a new intoxicated driving offense before he had completed his original treatment plan.

The easy answer in these circumstances is to void C.D.B.'s conditional plea and sentence him on the aggravated DWI charge, pursuant to Vehicle and Traffic Law § 1192 (2-a) (a). That would leave C.D.B. with a criminal conviction. This court firmly believes, however, that treatment parts, like Brooklyn's DWI court, are obligated to assist individuals on the path to recovery. As the court has seen again and again, that path is rarely straight or without obstacles. Relapses happen. They are to be expected. The question is what happens next? So long as defendants demonstrate a sincere effort towards recovery, the court will continue to work with them and does so in this case.

When C.D.B. stood before this court with a new intoxicated driving charge, it was clear that underlying issues remained unaddressed by the current treatment strategy. The court held the decision to void the conditional plea in abeyance and ordered the PSR. Probation is to be credited for its in-depth description of C.D.B.'s adolescent abuse and mental health history. Past traumas often result in PTSD, which many sufferers treat by self-medicating with alcohol and illegal substances. That is exactly what happened in the present case. The relapse provided the court with the opportunity, however, to intervene with specialized mental health treatment designed to address past traumas: EMDR. Both Probation and Legal Aid embraced this recommendation at an institutional level, and Legal Aid secured services for its successful implementation.

Due to these efforts, as well as the People's support for this effort, and, most importantly, C.D.B. himself, C.D.B. has now engaged in EMDR treatment for seven months. These labors have met with success: he has consistently tested negative for the intake of alcohol or any other substances; has shown insight into his use of alcohol to treat underlying trauma; has maintained [*9]employment; and has not been rearrested. These successes show the importance of treatment parts engaging with defendants to craft treatment plans to address underlying causes of substance and alcohol abuse, instead of simply voiding a conditional plea and moving on to the next case.

C.D.B.'s improvement through his treatment program, and the utilization of EMDR therapy, are factors the court weighs{**75 Misc 3d at 893} in considering the appropriate disposition for C.D.B. Given C.D.B.'s success in treatment, his remorse, his commitment to recovery, his willingness to engage in EMDR, and his lack of any prior criminal history, this court finds that his conditional plea should not be voided.

Accordingly, C.D.B.'s previously entered plea to aggravated DWI, pursuant to Vehicle and Traffic Law § 1192 (2-a) (a), is hereby vacated. C.D.B. is sentenced on his remaining plea to the impaired driving traffic infraction, pursuant to Vehicle and Traffic Law § 1192 (1). C.D.B. is sentenced to a 90-day suspension of his driver's license, a $300 fine, a $255 mandatory surcharge, and a conditional discharge, requiring him to lead a law-abiding life for the next year with no new arrests, no new summonses, and no negative contact with law enforcement.

As a further condition of his sentence, C.D.B. must continue with mental health and EMDR treatment during the next year at a level deemed appropriate by his treatment providers. There is a 15-day jail alternative if C.D.B. fails to abide by the conditions of his sentence. The case is ordered transferred to Brooklyn's new mental health treatment court, Part AP18, for future treatment updates and compliance.

This court takes no position with respect to the adjudication of C.D.B.'s second case as it remains pending.