People v Zayas
Annotate this CaseDecided on July 7, 2010
County Court, Rockland County
The People of the State of New York
against
Excer Zayas, Defendant
09-23610
Beth Finkelstein, ESQ
Phillips & Millman, LLP
148 Route 9W
Stony Point, NY 10980
Joanna DeVito
Senior Assistant District Attorney
Rockland County District Attorney's Office
1 South Main Street, Suite 500
New City, NY 10956
Charles Apotheker, J.
Defendant was charged by felony complaint, alleging that on or about September 5, 2009, he committed the crimes of Burglary in the Third Degree, a violation of Penal Law § 140.20, Grand Larceny in the Third Degree, a violation of Penal Law § 155.35, Attempted Grand Larceny in Third Degree, a violation of Penal Law §§ 110/155.35, and Criminal Possession of Stolen Property in the Third Degree, a violation of Penal Law § 165.50.
On or about March 5, 2010, an evaluation was completed as a result of the defendant requesting Judicial Diversion. The evaluation concluded that the defendant was an appropriate candidate for Judicial Diversion. On April 16, 2010, a conference was held in the Superior Court Information Part where the People (1) opposed the defendant's entry into Judicial Diversion, and (2) requested a hearing which was conducted on June 15, 2010.
Pursuant to Criminal Procedure Law §216.05(3)(b), this Court must make findings of fact with respect to whether: (i) the defendant is eligible for Judicial Diversion as defined in Criminal Procedure Law §216.00, (ii) the defendant has a history of alcohol or substance abuse or dependence, (iii) such alcohol or substance abuse or dependence is a contributing factor to the defendant's criminal behavior, (iv) [*2]the defendant's participation in judicial diversion could effectively address such abuse or dependence, and (v) institutional confinement of the defendant is or may not be necessary for the protection of the public.
Prior to the hearing's commencement, the People and the defendant stipulated to 3 factors: (i) the defendant's eligibility, (ii) his history of substance abuse, and (iv) that judicial diversion could effectively address his abuse and dependence. The scope of the hearing was limited to factors iii and iv, specifically, (iii) the defendant's substance abuse is a contributing factor to his alleged criminal behavior, and (v) institutional confinement is or may not be necessary for the protection of the public. Notwithstanding, this Court must note that the defendant is not eligible for Judicial Diversion within the meaning of Criminal Procedure Law § 216.00(1), which defines an eligible defendant as "...any person who stands charged in an indictment or superior court information...". At this time the Court is not in possession of an indictment or superior court information charging the defendant with a crime as further contemplated by this section, rather this Court is in possession of a felony complaint. However, should the defendant be charged by indictment or superior court information, this Court makes the following findings of fact with regards to §216.05(3)(b)(iii),(v).
In regards to factor iii, the People's witnesses Police Officer Healy and Detective Lorence could not assist with this determination. It is unclear whether the defendant was under the influence of any substances at the time he allegedly committed the crimes charged or at arrest. However, Detective Lorence did testify that the defendant stated he was addicted to pills, and that marijuana and pills were recovered from the defendant's vehicle and home. Also, Allison Jayne, LMSW, testified that she conducted the clinical evaluation of the defendant, and that the defendant self-reported to her that the defendant has been using illegal substances for approximately the last ten years.
On cross-examination, the People elicited testimony from the defendant's mother who testified that the defendant has maintained steady employment for the last ten years, has managed to pay for his education, loans, contribute $500 monthly towards the home mortgage, and pay for car insurance on two vehicles. Testimony indicated that the defendant was unemployed at the time he allegedly committed the crimes he was charged with, and that he had been unemployed since May, 2009, however he was receiving $912 biweekly in unemployment benefits.
It is the People's position that because the defendant has had a drug addiction for the last ten years and has been able to maintain steady employment without police contact that his drug addiction is not a contributing factor to his criminal behavior. Although the People presented a strong case in support of their position, this Court concludes that but for the defendant's drug habit, he would not have committed the alleged crimes. Therefore, the defendant's drug abuse and dependence is a contributing factor of his alleged criminal behavior.
Finally, it is undisputed that the defendant has no criminal history, and the [*3]testimony provided demonstrates that the defendant is not in need of institutional confinement for the protection of the public.
Therefore, pursuant to Criminal Procedure Law §216.05(3)(b) it is the decision and order of this Court that (i) the defendant is not eligible for Judicial Diversion as defined in Criminal Procedure Law §216.00, (ii) the defendant does have a history of substance abuse and dependence, (iii) the defendant's substance abuse and dependence is a contributing factor to his alleged criminal behavior, (iv) the defendant's participation in judicial diversion could effectively address such abuse and dependence, and (v) institutional confinement of the defendant is not necessary for the protection of the public. Defendant's request for Judicial Diversion will be granted if the defendant meets the eligibility requirements, in that he is either indicted by the grand jury or the defendant is prosecuted by superior court information.
This shall constitute the Decision and Order of the Court.
Dated: New City, New York
July 7, 2010
___________________
Hon. Charles Apotheker
A.J.S.C.
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