Carefully Consider the Terms of Participation in Diversion
The New York Judicial Diversion Program (JDP) offers a chance for a person charged with a drug-related criminal offense to avoid incarceration by agreeing to enter treatment and submit to other conditions. But without knowing the terms of such an offer, it shouldn't be accepted.
Agreement Required for DiversionNew York Criminal Procedure Law requires the defendant to agree either on the record or in writing to the release conditions set by the court when granting diversion, such as participation in treatment, periodic court appearances and drug testing, a requirement to refrain from engaging in criminal behaviors, and other conditions. If there is no agreement, either in writing or in the court record, then the defendant has not technically been given diversion.
Guidelines for a Diversion AgreementA skilled defense attorney will make sure any diversion agreement is fair to the defendant and does not give up important rights or place the defendant at the mercy of the court. Some important factors to consider include the following:
Don't waive a sealing of your record after successful completion of diversion; instead get a guarantee that your record will be sealed
Cap the sentence which will be imposed if you fail to successfully complete diversion; consider what the sentence in a plea agreement would have been instead of diversion. A defendant shouldn't be punished for trying but failing in the diversion program.
Set out the specific disposition after completion of diversion - Will the original charge be dismissed, reduced to a violation, or reduced to a misdemeanor? The final disposition should be spelled out in the diversion agreement. An excellent provision would be to give the judge authority to dismiss the charge entirely if the defendant performed exceptionally well in the JDP.
When the Prosecutor Fights Entry into ProgramParticipation in diversion can be an uphill battle if the prosecutor is not on board and supporting the request. A defendant in this situation should stress the need for treatment and how it will help the person avoid criminal behavior. Diversion is likely to be denied to a person who committed drug offenses for financial gain, as opposed to criminal acts fueled by addiction and the need to support the offender's habit.
An individual who is statutorily eligible for diversion and has a history of substance abuse or dependence should be allowed into the program, although it may take skilled and strenuous argument on behalf of the accused's attorney. An accused is entitled to a hearing on admission to the JDP; this can be a full hearing with evidence and testimony, including expert witnesses, and the right to appeal an unfavorable decision.