Should You Request Diversion?
In certain circumstances, courts may offer alcohol or drug treatment instead of criminal penalties like incarceration. While this option certainly sounds attractive, it comes with many strings, and it may not be right for everyone. Read on for information about the NY Judicial Diversion Program.
How Diversion Works in New York CourtsA defendant who is charged with a Class B, C, D or E felony drug offense (possession, sale, manufacturing, trafficking, etc.) is eligible to request diversion, provided the defendant does not have a previous conviction for a violent felony or Class A felony in the previous ten years. Also, the defendant cannot have been previously adjudicated as either a second violent felony offender or a persistent violent felony offender.
Diversion can be requested by the defendant at any time between the arraignment and the entry of a guilty plea or the start of trial. The judge will then order the defendant to undergo an alcohol and substance abuse evaluation, along with an evaluation of the defendant's history of abuse or dependence and any co-occurring mental disorder or mental illness.
After this evaluation, the judge receives a written assessment and report, along with a recommendation as to whether the defendant's abuse or dependence could be effectively addressed by diversion. The recommendation will also include suggestions for the type of treatment, level of care, length of treatment, etc. that the defendant should receive.
Either the prosecutor or the defendant can request a hearing on whether the defendant should be offered treatment. Evidence allowed at this hearing may include witness testimony, including a victim statement. After the hearing, the judge will make a determination of the following factors:
-Whether the defendant is eligible for diversion
-Whether the defendant has a history of abuse or dependence
-Whether such abuse or dependence is a contributing factor to the defendant's criminal behavior
-Whether diversion could effectively address the defendant's problems
-Whether incarceration of the defendant is necessary to protect the public
Important Factors to Consider before Requesting DiversionAgreeing to diversion requires you to enter a guilty plea to the offense charged. If you fight the charges instead, there is a chance that you could be found not guilty or have the charges against you dismissed. Talk with your attorney about how strong your defenses are and what risks you would face if convicted, as well as whether diversion would benefit you.
Agreeing to diversion also means making a number of commitments. Firstly, you need to commit to participation and completion of a treatment program, which may involve weekly outpatient visits or even a long-term inpatient program. Studies show that having a strong desire to seek treatment is an important part of successfully completing a program.
In addition to attending mandatory substance abuse treatment, you may also be required to make weekly court appearances, possibly including alcohol or drug testing. You can actually be required to appear in court at any time, and of course you must refrain from criminal behavior to stay in the program. Some courts enact other requirements as well, such as completion of a GED. You will need to think about all the time commitments involved with participation in diversion, and decide whether you are able to fulfill these requirements and still keep your job or meet other obligations.
The advantages of diversion include avoiding incarceration and possibly having charges reduced or dismissed, as well as getting conditional sealing of your criminal record under New York Penal Law section 160.58. On the other hand, failure to complete the Judicial Diversion Program could result in being sentenced more harshly than you otherwise would have been. If you fail to make a court appearance or show up for treatment, a bench warrant can be issued for your arrest. At a summary hearing in court, the judge can decide whether to modify your participation in the program or terminate it and proceeding to sentencing. The judge at this point is authorized to order any sentence authorized under the law for the crime, in accordance with the terms of the plea agreement.
How an Attorney can HelpAlthough the agreement to participate in diversion generally requires a guilty plea, it is possible to get the prosecutor and court to consent to an entry of order without a guilty plea. The judge can forgo a guilty plea in exceptional circumstances, such as when a guilty plea would have severe collateral consequences on the defendant. Your attorney may be able to convince the court to allow participation in the JDP without a guilty plea.
Facts such as sentencing options in case of failure to complete diversion, or the conditions of release, are decided in writing in the plea agreement. This agreement also determines the final disposition of your case once you have completed the JDP. This disposition may include any of the following, for example:
-Interim probation supervision
-Interim probation supervision followed by withdrawal of plea and dismissal of indictment
-Withdrawal of guilty plea
Entrance of a guilty plea to a misdemeanor and sentencing to lesser crime
Withdrawal of plea and dismissal of indictment with no probation
An experienced criminal defense attorney can negotiate a plea agreement that sets the terms of your release, sentencing options and final disposition in a way that is most favorable to you and best meets your needs.