People v Bruno

[*1] People v Bruno 2006 NY Slip Op 50681(U) [11 Misc 3d 1083(A)] Decided on April 19, 2006 Supreme Court, New York County Ward, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 19, 2006
Supreme Court, New York County

THE PEOPLE OF THE STATE OF NEW YORK

against

MARIA BRUNO, Defendant.



4947/02

Laura A. Ward, J.

The issue presented by this motion to dismiss in the interest of justice is whether a defendant who entered into a written plea agreement, which set forth the requirements imposed upon the defendant, should be punished for the alleged failure to abide by a court order made subsequent to the entry of the plea. Based upon the facts of this case, the question must be answered in the negative.

The defendant, arrested for possession of cocaine and drug paraphernalia, pleaded guilty on September 5, 2002, to attempted criminal possession of a controlled substance in the third degree, in violation of Penal Law ("PL") §§ 110/220.16(1). In exchange for her plea of guilty, the defendant was promised that she would be considered for participation in the Manhattan Treatment Court ("MTC"), a drug treatment program. Essentially, the terms of the agreement were that if the defendant was accepted into, and successfully completed MTC, the prosecution would request that the court dismiss her case. However, should the defendant fail to successfully complete MTC, she would be sentenced to a prison sentence of one year.

When the defendant pleaded guilty, it was agreed that, if accepted into MTC, the terms of her guilty plea would be fully set forth in the "MANHATTAN TREATMENT COURT - PLEA AGREEMENT" ("Agreement"). The defendant entered into two Agreements. The first Agreement was executed on September 18, 2002. The second Agreement was executed on January 20, 2004. The Agreements state that based upon "the understandings set forth below, the defendant, Maria Bruno, having entered into a plea of guilty . . . hereby agrees to enter and successfully complete the Manhattan Treatment Court Program." The Agreements provide that the defendant's sentencing would be adjourned for a minimum of 12 months (Agreement at ¶ 1) and that

During this period, the defendant will enter and successfully complete a drug treatment program . . . . Successful completion means regular attendance, compliance with program rules and regulations, full participation in all activities designated by program staff and the Court and negative toxicology reports. Failure to successfully complete the program by the aforementioned sentencing date (within twelve (12) months) will automatically extend the above [*2]sentencing date to the anticipated date of defendant's successful completion of the treatment program.

(Agreement at ¶ 2) (Emphasis added)[FN1]

The only other condition by which the defendant was to abide, is set forth in paragraph six of the Agreement. Paragraph six provides that "[i]f the defendant violates any condition imposed by the Court, . . . the defendant's case will be calendered at the earliest opportunity and the Court may impose any sanction the Court deems appropriate." The Agreement entered into by the defendant, the prosecution, and the court, grants to the court, and only the court, the right to impose a sanction upon the defendant's violation of a condition imposed by the court.

Paragraphs seven and eight of the Agreement establish the consequences of the defendant's failure to successfully complete the program and the results of successful completion of the program. Paragraph seven provides that "[i]f the defendant fails to successfully complete Treatment Court, the Court will impose a sentence of one year imprisonment." "If the defendant successfully completes the Treatment Court, and commits no new crimes, the Court will grant defendant's application to withdraw the previously entered plea of guilty . . . and the People will move to dismiss the SCI.[FN2]" (Agreement ¶ 8)

The defendant was accepted into MTC and signed a plea agreement on September 18, 2002. Thereafter, at the direction of the court, the defendant entered the Promesa drug treatment program. Due to certain difficulties at Promesa and relapses by the defendant, she was discharged from Promesa and entered into a second plea agreement on January 20, 2004.[FN3] The second plea agreement was identical to the first, with one exception. The second plea agreement called for the defendant to enter and successfully complete a drug treatment program at Upper Manhattan Mental Health, instead of Promesa.

On May 18, 2005, and again on June 29, 2005, based upon certain issues which [*3]existed at the defendant's residence, the court ordered the defendant to move to another location. The defendant told the court she would move into her daughter's home in New Jersey. The March 15, 2006, MTC "TREATMENT PLAN RECOMMENDATION/UPDATE" states that curfew calls were made to the defendant at a New Jersey phone number between February 10, 2006 and February 21, 2006. The calls were made at various times, both day and night,[FN4] and the defendant was present each time the calls were made. The defendant has also submitted an affidavit from her daughter attesting to the fact that the defendant was living at an address in New Jersey.

As of March 2, 2006, the defendant had successfully completed the drug treatment program at Upper Manhattan Mental Health and had fulfilled all the requirements set forth in the plea agreement. Pursuant to the agreement, the defendant's case should be dismissed. However, the prosecution opposes dismissal but will consent to the defendant withdrawing her plea of guilty to attempted criminal possession of a controlled substance in the third degree, a felony, and pleading guilty to the misdemeanor of criminal possession of a controlled substance in the seventh degree, in violation of PL § 220.03. The prosecution asserts that they have

reason to believe that defendant is not living in New Jersey as claimed, but continues to reside in New York. On June 28 and June 29, 2005, an investigator went to defendant's New York apartment and learned from the landlord that defendant was still residing there. On June 29, 2005, the Court told the defendant that she could not stay at the New York apartment. Defendant was not present when an OSN investigator visited defendant's alleged New Jersey residence. Defendant has not submitted any documentary evidence to prove that she actually is residing in New Jersey.



(People's response at p. 5)

The Agreement clearly sets forth the obligations of the parties. The defendant is to successfully complete MTC, which includes successful completion of an independent drug treatment program. The court is to impose appropriate sanctions for the defendant's violations of any conditions imposed by the court. Upon the defendant's successful completion of MTC, the court will grant the defendant's application to withdraw her plea of guilty. Finally, the sole obligation placed upon the prosecution is to move to dismiss the case against the defendant following the court granting the defendant's application to withdraw her guilty plea. Neither the defendant nor the prosecution allege that any other obligations were placed upon the defendant at the time she pleaded guilty or entered into the Agreements.

Based upon the foregoing, the defendant's guilty plea must be vacated. [*4]

The defendant successfully completed MTC. While the prosecution alleges that the defendant failed to comply with the Agreements, the prosecution does not dispute that the defendant successfully completed the drug program. The prosecution's sole objection to complying with the terms of the plea agreements is that the "[d]efendant has not demonstrated that she, who failed to abide by the order of the Court regarding her residence, merits the extraordinary relief, dismissal, which she is requesting and which she would have earned if she had she (sic) fully obeyed the Court." (People's Response at p. 7)[FN5] Based upon Paragraph six of the Agreement, which sets forth the requirement that the defendant follow the orders of the court, the court may impose a sanction.[FN6] Thus, failure to comply with a post plea order of the court, in and of itself, subjects the defendant to a possible sanction but would not ultimately affect the defendant's ability to successfully complete MTC. In view of the defendant's successful completion of MTC, the court is bound by its promise to vacate the defendant's plea.

Rather than dismiss the defendant's case pursuant to the plea agreement, the prosecution offered to permit the defendant to withdraw her plea of guilty, replead to the A misdemeanor of criminal possession of a controlled substance in the seventh degree, in violation of PL § 220.03 and receive a sentence of time served. The defendant has rejected that offer and seeks to have the court dismiss the charges in the interest of justice.[FN7]

Criminal Procedure Law ("CPL") section 210.40 lists ten factors that must be examined and considered "individually and collectively" when a court is deciding a motion to dismiss an SCI in the interest of justice. Following examination and consideration of these factors, the court must determine whether, in its discretion, dismissal is required due to the existence of "some compelling factor, consideration, or circumstance clearly demonstrating that [*5]conviction or prosecution of the defendant ...would constitute injustice." In determining whether dismissal is appropriate in this case, the court has considered, individually and collectively, each of these factors:

(a) the seriousness and circumstances of the offense; and (b) the extent of harm caused by the offense

The defendant was charged with possession of cocaine. Illicit drugs have had a severe negative impact on this country. Despite the concerted efforts of national and local law enforcement to control the drug problem, the use of illicit drugs is at epidemic proportions. Not only does drug use affect the addict, but it effects his or her family and friends, and society as a whole. The economic cost of deterring the use of and treating addictions is borne by every person in this country.

(c) the evidence of guilt, whether admissible or inadmissible at trial

The defendant has pleaded guilty.

(d) the history, character and condition of the defendant

The defendant is a 50 year old woman with a fourth grade education. This was her first arrest. She had a cocaine dependency and had abused alcohol for more than ten years. During the more than three-and-one-half years that the defendant has been in treatment she has relapsed on numerous occasions. She was discharged from Promesa, the first drug treatment program MTC directed the defendant to attend. Following her discharge from Promesa, the court ordered a psychological evaluation of the defendant. The evaluation revealed that the defendant was not only an addict, but had serious mental health issues.[FN8] The defendant was ordered to attend a new program, which she has since completed. Despite the relapses, the defendant has continually remained in treatment and has worked extremely hard to turn her life around. She has been tested for drugs on a weekly basis and remained drug free since November 2004. She is no longer living in the apartment where she was arrested but has moved to New Jersey and is living with her daughter. The defendant has a supportive family.

(e) any exceptionally serious misconduct of law enforcement personnel in the investigation, arrest and prosecution of the defendant

None is alleged.

(f) the purpose and effect of imposing upon the defendant a sentence authorized for the offence

Based upon the defendant's drug addiction she was offered a plea that included MTC. The defendant remained drug free for over two years. Since September 5, 2002, she has appeared in court on a regular basis. Because she is successfully dealing with her addiction, and [*6]complied with the orders of this court, imposing a criminal conviction upon the defendant would serve no useful purpose.

(g) the impact of dismissal on the safety or welfare of the community

The defendant is no longer engaging in criminal activity and therefore dismissal of her case will have no impact on the safety or welfare of the community.

(h) the impact of dismissal upon the confidence of the public in the criminal justice system

The public's confidence in the criminal justice system will be enhanced by the granting of this motion to dismiss. The public will see that the court abides by its commitments and is serious about its desire to give drug addicts the opportunity to gain the tools necessary to deal with their addiction and once successful, not have a criminal record.[FN9]

(i) the attitude of the victim or complainant with respect to the motion

No evidence relating to this factor has been provided.

(j) any other relevant fact indicating that a judgment of conviction would serve no useful purpose

None

Upon review of the facts of this case and careful consideration of each of these ten factors, both individually and collectively, I am of the opinion that no useful purpose would be served by saddling the defendant with a criminal conviction. The defendant has changed her life. She has completed a drug treatment program and has remained drug free. The defendant has changed her place of residence, thereby distancing herself from the location in which she committed the crime. Despite setbacks along the way, the defendant has done everything asked of her by the court and the prosecution. A conviction for any crime or continued prosecution would constitute or result in injustice.

The motion to dismiss is granted.

The foregoing is the decision and order of the court.

Dated: New York, New York

April 19, 2006

Laura A. Ward [*7]

Acting Justice Supreme Court Footnotes

Footnote 1: The MTC agreement requires the completion of a drug treatment program and a minimum of 365 drug-free days. In order to complete a drug program the defendant must be able to support him or herself and have a place to live. It takes most defendants more than a year to successfully complete MTC.

Footnote 2: SCI is an abbreviation of Superior Court Information which is the accusatory instrument which set forth the crime to which the defendant pleaded guilty.

Footnote 3: When the defendant was discharged from Promesa, the court could have sentenced the defendant to one year imprisonment. Realizing that dealing with an addiction is difficult and addicts often relapse, the court decided to give the defendant a second chance at treatment. Any drug free time the defendant had accumulated was expunged.

Footnote 4: The curfew calls were made on February10, 2005, at 10:45 P.M., February11, 2005, at 9:30 P.M., February14, 2005, at 10:54 A.M., February15, 2005, at 10:45 P.M., February16, 2005, at 10:45 P.M., February18, 2005, at 10:52 P.M., and February 21, 2005, at 10:00 A.M.

Footnote 5: The People's evidence that the defendant still resides at her apartment in Manhattan is two-fold. First, the People's investigators spoke with the landlord of the building in June 2005 and were informed the defendant still lived in the New York apartment. Second, the defendant was not at the New Jersey residence when the investigator made a surprise visit. The evidence that the defendant resides in New Jersey is an affidavit submitted by the defendant's daughter stating that the defendant has been living with her in New Jersey since June 2, 2005 and that MTC personnel called and spoke with the defendant at varying times over several days during February 2006.

Footnote 6: Due to the delay of the defendant's move to New Jersey and the efforts of MTC and the People to confirm the move, the defendant was required to remain in MTC for additional time and appear for toxicologies and court appearances.

Footnote 7: Based upon the prosecution's refusal to move to dismiss the SCI, if the court does not grant the defendant's motion to dismiss the SCI in the interest of justice the court must permit the defendant to withdraw her plea whereupon the complaint would be re- instated. (Santobello v. New York, 404 U.S. 257 [1971]; People v. Selikoff, 35 NY2d 227 [1974]; People v Chapman, AD3d , 2006 WL 679918 [2006]; People v Jackson, 272 AD2d 342 [2000])

Footnote 8: Many drug addicts have co-occurring mental disorders. When MTC learns that a defendant also has mental health issues, MTC looks for a program that treats mentally incapacitated chemically addicted ("MICA") individuals. Finding a MICA program for this defendant was especially difficult because she only speaks Spanish.

Footnote 9: The cases of defendants who successfully complete MTC are dismissed but not sealed. Should a defendant ever re-offend, the court would be on notice of the defendant's previous involvement with the criminal justice system.