People v Long

[*1] People v Long 2009 NY Slip Op 52771(U) [27 Misc 3d 1234(A)] Decided on December 11, 2009 Supreme Court, Kings County Ferdinand, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 11, 2009
Supreme Court, Kings County

The People of the State of New York

against

Carl Long, Defendant.



7297-2009

Joann Ferdinand, J.

On August 9, 2009, the defendant was allegedly observed in possession of 22 "plastic twists" of a substance containing cocaine with an aggregate weight of at least one-eighth ounce. He was arrested and subsequently indicted for Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.39[1]), Criminal Possession of a Controlled Substance in the Fourth Degree (PL § 220.09[1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (PL § 220.03). He has no prior felony convictions and no other pending felonies.

On November 20, 2009, this case was referred to the Brooklyn Treatment Court upon the defendant's request for judicial diversion. Pursuant to CPL Article 216, the Court ordered an alcohol and substance abuse evaluation to determine whether defendant has a history of alcohol or substance abuse or dependence and whether he should be offered judicial diversion for treatment. He was evaluated by Raquel Colon, the Diversion Resource Coordinator, an Addiction and Substance Abuse Counselor credentialed by the Office of Alcoholism and Substance Abuse Services pursuant to MHL § 19.07. The evaluation included a urinalysis and a series of questions regarding the defendant's drug use, education, employment, medical condition, family relationship and living arrangements. Based on her assessment, Ms. Colon concluded that the defendant does not have a history of alcohol or substance abuse or dependence as such terms are defined in the Diagnostic and Statistical Manual of Mental Disorders. 4th Edition (DSM-IV). Upon receipt of the report, the defendant requested to be heard on whether he should be offered alcohol or substance abuse treatment pursuant to CPL Article 216.

On December 2, 2009, the court heard from Ms. Colon, the defendant, and his attorney. A urinalysis of defendant on December 1, 2009, was positive for the presence of marijuana. Ms. Colon stated that she interviewed the defendant and questioned him regarding his drug use and social history. Initially, he informed her that he had tried marijuana when he was 11 years old, but was never a daily user. At another point in the interview, he stated that he used marijuana occasionally; at another point, he reported that he used marijuana once a week; and, at yet another point, he reported that he neither used nor spent money on marijuana. When questioned about his positive urinalysis, the defendant stated that he knew he needed to test positive to be admitted to the program, so he used marijuana the day before. He presented Ms. Colon with a W-2 from his previous employer and reported that he recently moved from New Jersey and now lives with his aunt with whom he has a good relationship. These factors led Ms. Colon to [*2]conclude that the defendant does not have a history of alcohol or substance abuse or dependence.

The defendant addressed the Court with the understanding that any statements made by him concerning his history of substance abuse would not be admissible against him at trial. He stated that he had lied to Ms. Colon. Although he had slowed down his use of marijuana since enrolling in a vocational program, he still used it several times each week. He also explained that he did not in fact live with his aunt. Although he gave her address as his residence, he moves about from friend to friend and considers himself homeless.

The Court advised the defendant that if his testimony were to be credited, based on his reported drug use and homelessness, he would be mandated to enroll in a residential program. At that point, the defendant declined to continue the hearing, indicating that under no circumstances was he prepared to enter a residential program.

The information provided by the defendant to Ms. Colon is entirely at odds with his subsequent statements to the Court. He appears to tailor his responses in a self-serving attempt to obtain a desired result: to wit, a determination that his case should be diverted from prosecution because he is a substance abuser in need of outpatient, but not substance dependent and in need of residential treatment. The only objective indicia of any substance use is the positive urinalysis result, which is undermined by his claim that he purposefully used marijuana in order to manipulate the results of his evaluation.

Accordingly, having considered all of the arguments presented, pursuant to CPL § 216.05(3)(b), this Court finds that the defendant should not be offered diversion for treatment.

This constitutes the decision and order of the court.

ENTER,

_____________________________

JO ANN FERDINAND

ACTING SUPREME COURT JUSTICE