Drug Programs and New York City Criminal Court
By Don Murray, Esq.
A common belief among people unconnected with the criminal justice system is that almost any criminal defendant is practically entitled to choose to get a program as a means to avoid going to prison for committing a crime.
As usual, this common belief is nearly the opposite of the truth.
A program is NOT a sentence in a criminal case. You can't simply "get" a program and have a criminal prosecution disappear. A program is typically a special condition of a sentence of probation. That means that the defendant must plead guilty to something and then the judge must sentence him to probation or conditional discharge. Then, the judge can add a special condition of probation (or conditional discharge) that the defendant complete a drug program.
Failure to complete the program means that the defendant is violation of probation and exposes the defendant to up to the maximum amount of prison time the defendant faced on the charge he plead guilty to.
For example, suppose a first arrest adult defendant plead guilty to attempted criminal sale of controlled substance, a C nonviolent felony and got probation with a drug program condition. That sounds great. The defendant is on probation and need not go to prison. If the defendant stops going to the program or is kicked out of the program, however, that would be a violation of probation.
Once violated, the defendant faces up to the maximum of what he originally plead guilty to -- which in this example, was a C nonviolent felony. A quick look at the sentencing chart for felony drug offenses tells us that the defendant in our example faces up to at least 1 year and up to 5 1/2 years in prison.
Programs are not available to many defendants for reasons that don't always seem to make sense. Most, if not all of the court-accepted programs, for example, exclude defendants who have any "violent" convictions in their past. This seems to be an extremely strict policy that applies even to crimes that are merely labeled violent by the legislature for sentencing purposes but are not necessarily actually violent.
For example, Burglary in the Second Degree is a "violent" crime in New York, even though actual violence of any kind is not part of the crime of Burglary in the Second Degree as most commonly charged. If a person enters an apartment building basement to steal money from the washing machines in the laundry room, that is considered Burglary in the Second Degree even though he entered nobody's apartment, and without regard even to whether anyone lives in the basement. The crime is complete simply upon entering the building with the intention of stealing quarters from the laundry room. The New York State Legislature classifies this as a "violent" crime for sentencing purposes, yet no actual violence to a human being is necessary to commit Burglary in the Second Degree. Yet, our laundry room thief, if convicted for such a burglary, would be forever disqualified from a drug program for his "violent" past.
Programs are also not always available to defendants who, in their prior contacts with the criminal justice system have proven themselves unreliable by failing to appear on their cases. This seems a rather peculiar disqualification since such unreliability is often an outgrowth of the drug problem that the defendant is seeking to address. Disqualifying people from drug programs for prior unreliability is arguably like denying aspirin to someone because he has a headache.
Another aspect of programs is their high level of intolerance for misbehavior within the programs. People are frequently kicked out of programs for a variety of reasons related to violations of various disciplinary policies. A frequent area of difficulty is the issue of fighting. Fighting and violence are understandably taken quite seriously. Nevertheless, the concept of self-defense, is something that seems not to have penetrated these program disciplinary policies. ALL participants in a fight are subject to extreme discipline.
Also, failure to pass all drug tests is a serious offense within the drug programs. Of course this is something that must be taken seriously by the programs. It is indeed the very core of the program - the need to steer away from the drugs. Nevertheless, the programs recognize the problem as a serious condition that requires months and months to address. And yet, participants are subject to banishment for not being cured of their problem immediately. The programs are usually more than merciful, especially in the beginning, but continued relapses will quickly lead to violation.
In defense of the strict policies of the criminal justice system drug programs, one must realize that the number of people with drug addiction issues who find themselves in the criminal justice system is huge. For every person who gets a bed in such a program there are probably ten more who have to wait. Therefore, the system has a right to be selective and have little tolerance for those who are less than enthusiastic about the opportunity to save themselves.
DTAP is a drug program run through criminal court that permits some people to obtain drug treatment who otherwise might not be permitted to participate in a program. DTAP is designed to help those whose prior felony convictions (nonviolent) make probation an illegal plea and therefore make a drug program an impossibility.
The DTAP system works around this problem by allowing its participants to plead guilty to a felony, but keep the sentence open until the defendant completes the program. If the defendant completes the program, then the defendant is permitted to withdraw the felony plea and either have the case dismissed outright or substitute a misdemeanor conviction. If the defendant fails to complete the program, the defendant is sentenced to an extremely stiff state prison sentence.
Drug Court is a diversionary courtroom for people with identified drug problems who generally have no other criminal history than some new drug case. Those who participate in one of these innovative programs and who complete the process will generally have their case dismissed. The entire process is designed to help the defendant overcome a demonstrated drug addition. Qualification for drug court depends on a variety of factors and those interested require interview and evaluation by the Drug Court personnel. The good news is that the case will usually end in dismissal. Drug Court, however, requires a substantial commitment and involves an extremely high level of judicial supervision. Defendants will be required to make frequent appearances in court for progress reports. Cases can least for more than a year in Drug Court.
Drug programs certainly play a large role in the criminal justice system in New York City, but they are by no means available all the time simply for the asking. In the right situation they can be a wonderful means to resolve a problem with the criminal justice system as well as a wonderful means to resolve a life threatening addiction. While the rules do tend to be strict, the people involved are hard-working and dedicated and can make a substantial difference in people's lives. At the same time, drug programs will not always be available as a means to resolve a criminal case nor will they always be a good idea even when available. As usual, every case must be evaluated individually with an experienced criminal defense lawyer.
Drug Programs and NYC Criminal Court
Drug programs in New York City criminal court are not available as widely as many people imagine and they impose extremely strict rules when they are available. This article by Don Murray, discusses drug programs and their relationship to New York criminal courts and some of the special drug programs available in some cases.
Call 718-268-2171 for more information about drug programs in New York or to schedule your free consultation with a New York criminal defense lawyer from Shalley & Murray.
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