People v Walker
Annotate this CaseDecided on February 28, 2014
Supreme Court, Kings County
The People of the State of New York, Plaintiff,
against
Anthony Walker, Defendant.
8160-2013
ADA Jonathan Laskin, Of Counsel
Charles J. Hynes, District Attorney, Kings County, for People
Joseph A. Bondy, Esq.
New York, NY, for Defendant
Jo Ann Ferdinand, J.
On September 21, 2013, the defendant was arrested in Kings County and a subsequent search of the his backpack allegedly resulted in the recovery of more than four ounces of oxycodone, more than ounce of amphetamine, more than 25 grams of marijuana, and additional quantities of methadone, alprazolam, and delta-9-thc. The defendant was indicted on charges of Criminal Possession of a Controlled Substance in the Second Degree (a Class A-II Felony), two counts of Criminal Possession of a Controlled Substance in the Third Degree (a Class B Felony), two counts of Criminal Possession of a Controlled Substance in the Fourth Degree (a Class C Felony), three counts of Criminal Possession of a Controlled Substance in the Fifth Degree (a Class D Felony), and six drug-related misdemeanor offenses. The case was referred to the Brooklyn Treatment Court on February 7, 2014, upon the defendant's request for drug treatment under the Judicial Diversion Program for Certain Felony Offenders (Criminal Procedure Law Article 216).
The issue before this Court is whether the defendant, who is otherwise eligible for Judicial Diversion, is disqualified by the Class A-II drug felony charged in this indictment. The People contend that defendant is ineligible because the Legislature clearly excluded Class A drug offenders from participating in Judicial Diversion by omitting them from the list of eligible drug offenses under CPL § 216.00(1), and excluding them from the list of those eligible to participate in parole supervised drug treatment pursuant to CPL § 410.91(5). The People further oppose defendant's participation in Diversion. The defendant contends that he is eligible for Judicial Diversion because he is charged with specified felony drug crimes, has no prior disqualifying convictions, and no pending disqualifying charges. He argues that the Class A-II Felony charge on the indictment is a neutral crime in that it is listed neither as an eligible offense nor a disqualifying offense. Accordingly, he claims that the presence of this charge on the indictment does not defeat his eligibility because it is well-established that individuals may participate in Judicial Diversion when neutral crimes are charged in an indictment along with specified eligible [*2]charges. He further contends that the A-II Felony charge is "related" to the eligible charges and "directly related" to his drug addiction. Therefore he urges the Court to permit him to participate over the People's objection.
The Judicial Diversion Program grants authority to judges to determine which nonviolent defendants, whose criminal activity is the result of substance abuse or dependence, should have the opportunity to avoid a jail sentence by agreeing to complete court monitored treatment. CPL § 216.00(1) defines an "eligible defendant" as any person who stands charged in an indictment with a class B, C, D or E felony drug offense, or those charged with any of the specified nonviolent offenses listed elsewhere in the statute.
CPL § 216.00(1)(a) & (b) specifically exclude from eligibility certain predicate offenders and all second and persistent violent felony offenders. The last paragraph of CPL § 216.00(1) lists those pending charges which would render a defendant ineligible for Judicial Diversion and includes violent felony offenses and certain offenses listed in Correction Law § 803(1)(d)(ii). Any defendant excluded from Diversion pursuant to these provisions may become eligible upon the prosecutor's consent.
Article 216 does not include Class A drug felonies in the list of eligible drug crimes; nor does the Article address them in the list of disqualifying pending charges since Class A felonies in general are not classified as violent or non-violent (PL § 70.02), and the disqualifying charges listed in Corrections Law § 803(d)(ii) do not include Class A drug felonies. The defendant likens this omission to other cases in which courts, including this Court, have held that a defendant remains eligible for Judicial Diversion despite the presence of non-violent, non-specified crimes on the indictment (see People v. Iverson, 32 Misc 3d 1246[A][Kings Cty. 2011][Conspiracy in the Fourth Degree]; see also People v. Weissman, 38 Misc 3d 1230[A][NY Cty. 2013][Conspiracy in the Fourth Degree]; People v. Jordan, 29 Misc 3d 619 [Westchester Cty. 2010][Criminal Possession of a Forged Instrument in the First Degree and Scheme to Defraud in the First Degree]). The defendant distinguishes this case from People v. Zerafa (38 Misc 3d 251 [Kings Cty. 2012]), in which this Court held that the defendant therein was not eligible for Judicial Diversion because the non-specified crimes were collateral to the eligible offenses and involved a greater degree of risk to public safety. While this Court agrees that the presence of non-violent, non-specified crimes on the indictment does not necessarily disqualify a defendant from Diversion, the presence of a Class A felony does.
Article 216 begins with a complete list of eligible charges in which Class B, C, D, & E drug felonies are specified but Class A drug felonies are omitted. Contrary to the defendant's contention, this omission does not merely place Class A drug felonies into the category of neutral crimes. Given the precision attended to the list of eligible drug crimes, the omission cannot be inadvertent. The Legislature could easily have stated that all drug felony charges are eligible. Instead, it listed specific classes of drug felonies that are eligible and chose not to include Class A drug felonies. In so doing, the Legislature must have intended that such crimes would automatically disqualify a defendant from Judicial Diversion.
The Legislature's intent to exclude those charged with Class A drug felonies is further [*3]evidenced in CPL § 216.05(9)(c) & (e), which deal with sentencing upon a defendant's failure to comply with the treatment mandate. These sections provide that, at such time, "the court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed on a felony drug offender pursuant to paragraph (b) or (c) of subdivision two of section 70.70 of the penal law" (emphasis added). PL § 70.70 is entitled "Sentence of imprisonment for felony drug offender other than a class A felony" and, as the title suggests, has no provisions for the sentencing of those charged with Class A drug felonies. It would be counterintuitive to find that the Legislature intended Judicial Diversion to be available to those charged with Class A drug felonies when the statute governing the imposition of sentence is specifically for the "felony drug offender other than a class A felony." Therefore, if the defendant herein were allowed to participate in the absence of the People's consent, upon a failure in treatment, this Court would have no statutory guidance in what sentence is authorized for this Class A drug felony.
Accordingly, having considered all of the arguments presented, this Court finds that the defendant is not an eligible defendant as defined in CPL § 216.00(1). The Class A drug felony on the indictment is not a neutral charge, but rather disqualifies the defendant from participation in Judicial Diversion.
This constitutes the decision and order of the court.
E N T E R,
_____________________________
JO ANN FERDINAND
ACTING SUPREME COURT JUSTICE
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