Opinion
No. 2586/12.
2013-03-5
The PEOPLE of the State of New York, Plaintiff, v. Perri WEISSMAN, Defendant.
ADA Jeffrey Linehan, Office of the Special Narcotics Prosecutor for the City of New York, New York, for the People. Michael Soshnick, Esq., NY, for the defendant.
ADA Jeffrey Linehan, Office of the Special Narcotics Prosecutor for the City of New York, New York, for the People. Michael Soshnick, Esq., NY, for the defendant.
RICHARD M. WEINBERG, J.
Defendant is charged in an indictment with multiple counts of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16[12] ), multiple counts of Criminal Possession of a Forged Instrument in the Second Degree (PL § 170.25) and a single count of Conspiracy in the Fourth Degree (PL § 105.10[1] ).
She seeks to participate in the Judicial Diversion Program under CPL Article 216 and to be allowed to participate in that Program without the prior entry of a guilty plea. The People oppose defendant's participation, arguing that she is statutorily ineligible due to the inclusion in the indictment of the one count of Conspiracy in the Fourth Degree. The People further argue that, should defendant be found eligible for participation in the Judicial Diversion Program, she should be required to first enter a guilty plea.
CPL § 216.00(1) provides the criteria for eligibility for participation in a judicial diversion program. A person is eligible if she is charged in an indictment with a B, C, D, or E felony drug offense or with any other offense listed in CPL § 410.91(5). CPL § 216.00(1) further provides the criteria for ineligibility for participation in a judicial diversion program. Pursuant to this section, a defendant is rendered ineligible if she has certain prior convictions on her record or if she is also currently charged with a violent felony offense or with an offense listed in Corrections Law § 803(1)(d)(ii).
The defendant is charged in an indictment with a B felony drug offense. This renders her eligible for participation in a judicial diversion program. She is also charged with Criminal Possession of a Forged Instrument in the Second Degree, an offense listed in CPL § 410.91(5). This also renders her eligible for participation in a judicial diversion program. Defendant has no prior convictions nor is she currently charged in this or any other indictment with a violent felony offense or with an offense listed in Corrections Law § 803(1)(d)(ii). Thus, there is nothing in her current case nor in her record which would render her statutorily ineligible. Therefore, pursuant to a plain reading of this clear and unambiguous statute, she is statutorily eligible for participation in a judicial diversion program.
It is the People's position that the inclusion of the Conspiracy in Fourth Degree count in the indictment, an offense which is neither a B, C, D or E felony drug offense nor a CPL § 410.91(5) offense, disqualifies the defendant from diversion. To adopt this position would be to graft an additional basis for disqualification onto the disqualification criteria clearly set out CPL § 216.00. Had the Legislature intended to limit eligibility for diversion to those charged exclusively with qualifying offenses, it could have done so. It is not the proper role of the Court to judicially amend a statute which is clear on its face.
This Court acknowledges that the People's position has received support from other Courts. See People v. Sheffield (Ind. 4364/2009, Sup Ct, N.Y. Co., 2/4/2010, Nunez, J.,); People v. Jaen (Ind. 5704/2008, Sup Ct, N.Y. Co., 3/19/2010, Coin,J.); People v. Zerafa (38 Misc.3d 251, Sup Ct, Kings Co., 11/15/12, Ferdinand, J.). This Court, however, respectfully disagrees with those decisions. Rather, this Court is in agreement with the conclusions reached by the Court in People v. Jordan (29 Misc.3d 619, County Court, Westchester Co, 8/24/10, Capeci, J.) and adopts the cogent arguments and sound reasoning set out at length in that decision. As noted by the Jordan Court, to allow the People to disqualify a person simply by including a non-qualifying charge in an indictment undermines the Legislative intent to place discretion and control of diversion in the hands of the Court rather than the Prosecutor.
This defendant is charged with both qualifying and non-qualifying offenses. She is not charged with any disqualifying offenses. Accordingly, she is a statutorily eligible candidate for diversion.
Defendant has also requested that she be permitted to enter diversion without the entry of a guilty plea.
CPL § 216.05(4)(b) permits a defendant to enter diversion without the entry of a guilty plea where the Court determines that exceptional circumstances exist because the entry of a guilty plea would result in severe collateral consequences. The defendant is an attorney duly licensed to practice law in the State of New York. The entry of a guilty plea would result in the loss of her license and with it, her ability to support herself while she is undergoing treatment for her drug addiction. An integral component of the diversion program is a requirement that participants be able to financially support themselves prior to their completion of the program. In this case, defendant has the means to be self-supporting. It makes little sense to both require that she be self-supporting and to strip her of her ability to be self-supporting by requiring the entry of a guilty plea. Furthermore, defendant will have more incentive to successfully address her drug problem since, if she were to fail the diversion program, she will still face serious felony charges and, if convicted, would then automatically lose her license.
The Court finds in this case that defendant's loss of license and livelihood are severe collateral consequences which would flow from the requirement of a guilty plea. Many years of hard work, education and related expenses and sacrifices would be wasted. Such a loss would be counter-productive and would needlessly hinder defendant's successful completion of her drug treatment program.
Since the Court concludes that exceptional circumstances exist in this case, the defendant will be granted diversion without the entry of a guilty plea. She will, however, be required to expressly waive her speedy trial rights under CPL §§ 30.30 and 30.20 while participating in diversion since any trial delays will have been caused by defendant's voluntary participation in diversion.
This constitutes the decision and order of the Court.