After a hearing pursuant to CPL 216.05 (3), this Court denies Defendant's application to participate in Manhattan Drug Court's Judicial Diversion program for the following reasons:

After his last period of incarceration ending on November 16, 2024, Defendant was indicted on two counts of Grand Larceny in the Fourth Degree in violation of Penal Law 155.30(1) and related charges. These charges stemmed from incidents that occurred on November 24, 2024 — just eight days following his release into the community.

Following his indictment, Defendant sought to enter Judicial Diversion as an "eligible" defendant pursuant to CPL 216.05. Notably, Defendant was a previous participant in Judicial Diversion who twice failed treatment; first, from November 2018 until February 2019, and again — lasting only one month — from March 2021 until April 2021.

This Court then ordered that he undergo an alcohol substance use evaluation pursuant to CPL 216.05 (1) as administered by the Manhattan Drug Court clinicians. That assessment, which was conducted on February 20, 2024, determined that despite having a history of cocaine and alcohol use, Defendant had achieved a full sustained remission. The evaluation relied on [*2]Defendant's own admission that had not used crack cocaine since 2021 and only consumed one or two beers a week between September 2021 and December 2022. The evaluation further noted that, in an interview with Defendant's domestic partner, she observed that Defendant had not used drugs or alcohol since his release from prison in November 2023. Lastly, every agency, including Correctional Health Services, NYC Health and Hospitals, and Harlem East Life Plan administered toxicology tests of Defendant in November 2023, December 2023, and February 2024, respectively. All of these returned negative for illicit substances or alcohol. Accordingly, the evaluation concluded that Defendant was not eligible for Judicial Diversion based on the absence of an alcohol or substance use disorder.

At Defendant's request, this Court held a hearing pursuant to CPL 216.05 (3). At the hearing, Defendant called only one witness, Carlos Moreno. Moreno testified that he works as a court liaison at Housing Works. Moreno asserted that he conducts assessments of clients, attends medical and court appointments, and goes to court "to support" the client. Moreno further claimed that an assessment was conducted on Defendant, and that he was found to have a substance abuse issue. The Housing Works' assessment was admitted into evidence as Defense Exhibit A.

Defendant never sought to qualify Moreno as an expert in the field of substance or alcohol use disorders. Moreno also conceded that he himself did not perform the assessment on Defendant. Indeed, Morena admitted that he has been employed by Housing Works for just one month.

Moreno also testified on cross-examination that, because the relevant section, Section 1.6, of the Housing Works' assessment inquiring as to Defendant's "[d]rug problem, currently" and "[a]lcohol problem, currently" returned a score of 3, such result "means it's a high probability that the person has a substance abuse problem (hearing trans. 12:24 — 13:8). Yet, a review by this Court of the explanation section of the scoring states that a score of "3" indicates a "satisfactory situation with little opportunity or need for improvement" (compare Defendant's exhibit A, pg. 10).

On cross-examination, Moreno also testified that he was previously an attorney engaged in "general practice." Following the hearing, it was discovered and it is further undisputed that Moreno was automatically disbarred on February 21, 2023 following his conviction on December 18, 2020 for one count of scheme to defraud in the first degree, an E felony (see Matter of Moreno, 2023 NY Slip Op 00956 [1st Dept, 2023]).

CPL 216.05 (3) (b) requires this Court to conduct a hearing to determine whether an "eligible defendant should be offered alcohol or substance use treatment pursuant to [CPL 216]." In doing so, the Court must make findings as to whether (1) the defendant is an eligible defendant as defined in subdivision one of section 216.00 of this article, (2) the defendant has a history of alcohol or substance use, (3) such alcohol or substance use is a contributing factor to the defendant's criminal behavior, (4) the defendant's participation in judicial diversion could effectively address such use, and (5) institutional confinement of the defendant is or may not be necessary for the protection of the public" (CPL 216.05[3][b]).

As Defendant is charged with Grand Larceny in the 4th Degree, there can be no meaningful dispute that Defendant here is "eligible" under the first factor as the charges of Grand Larceny in the Fourth Degree qualify (see CPL 410.91[5] as referenced by 216.00[1]). [*3]Since he was a prior participant in Judicial Diversion, Defendant also meets the second factor that he has a history of alcohol or substance use.

But under the third factor, Defendant fails to show that alcohol or substance abuse was a contributing factor to his criminal behavior for the instant, indicted offenses. At the outset, this Court also finds there was no evidence adduced that Defendant was under the influence of drugs or alcohol at the time of the commission of the instant offenses. Moreover, this Court finds the conclusion from the February 20, 2024 evaluation to be credible, particularly in light of consistent negative results for any substances from the various drug screenings since his release to parole in November 2023. Indeed, Defendant's ability to voluntarily abstain from drinking or using cocaine was further corroborated by his own collateral source, namely, his live-in partner.

Defendant urges that the Housing Works' assessment and testimony of Moreno be believed. While the Housing Works' assessment is credible, this Court finds that Morena's admitted lack of personal knowledge of how it was administered to Defendant offered little probative value to his case. Moreover, Moreno's lack of experience and qualification in the relevant field - not to mention his total lack of candor as to his previous criminal conviction for fraud - rendered most of his testimony worthless, especially as it pertained to whether the Housing Works' assessment actually concluded that Defendant had a drug or alcohol use disorder. Indeed, the Housing Works' assessment's own scoring index belies Moreno's interpretation that there is a "high probability" of ongoing alcohol or drug problems. Rather, it appears that the opposite is true: that Defendant has attained a "satisfactory situation with little opportunity or need for improvement" as to these issues. As such, and despite a history of drug or alcohol abuse, Defendant fails to establish that such abuse was a contributing factor to his criminal behavior (see e.g. People v McKoy, 175 AD3d 1616, 1617-18 [3rd Dept 2019]).

As to whether Defendant's participation in judicial diversion could effectively address such use, the preponderance of the credible evidence reveals the answer to also be "no." Allowing a participant with high risk, but low to no need as it pertains to chemical dependency on drugs or alcohol bodes poorly for both the participant's welfare in treatment as well as to public safety (see Adult Treatment Court: Best Practice Standards, All Rise, available at https://allrise.org/wp-content/uploads/20 23/12/All-Rise-Adult-Treatment-Court-Best-Practice-Standards-2nd-Ed.-I-VI_final.pdf< /a>). Namely, the body of evidence derived from well-established principles referred to as risk, need, responsivity (RNR) demonstrate that treatment should focus "principally on the specific disorders or conditions that are responsible for participant's crimes" (id., at 11 ["The treatment court model assumes that participants have a compulsive, chronic, or uncontrolled substance use disorder requiring intensive treatment and supervision services Distinguishing compulsive or chronic substance use disorders from noncompulsive substance use disorders is essential for determining which persons need to be in treatment court").