DECISION & ORDER The defendant is charged with Criminal Possession of Marihuana in the First Degree in violation of §221.30 of the Penal Law. By Decision and Order dated February 22, 2018, defendant’s motion for an Order that defendant undergo an alcohol and substance abuse evaluation at the direction of the Court for the purposes of being considered for participation in the judicial diversion program was denied. The defendant already independently had such an evaluation, provided said evaluation to the Court, and requested a hearing with respect thereto. As such, the instant matter was set down for a judicial diversion hearing. The hearing was held on March 14, 2018. Appearing for the People was Janine M. Kovacs, Esq., Assistant District Attorney for the County of Orange. Appearing for the defendant was Jon C. Dupee, Jr., Esq. The People called one witness: Officer Michael Moon from the Town of Warwick Police Department. The defendant called two witnesses: James Einstman, Jr., LCSW and the defendant’s mother, Dorothy Cancel. The defendant’s counsel Jon C. Dupee, Jr., Esq. submitted a Memorandum of Law dated April 10, 2018, Assistant District Attorney Janine M. Kovacs submitted an Affirmation and Memorandum of Law dated April 12, 2018, and Jon C. Dupee, Jr., Esq. submitted a Reply Affirmation dated April 23, 2018. Said submissions were considered by the Court.FINDINGS OF FACTOn June 8, 2017 marijuana was discovered and recovered from the defendant’s vehicle after a vehicle and traffic stop. Later that same day, Officer Michael Moon executed a search warrant at defendant’s home located at 327 State Route 94 South, Warwick, New York. Pursuant to the execution of the search warrant, the police recovered the following items: 26 pounds of marihuana; $98,216.59 in U.S. currency; numerous weapons, including a switchable knife, metal knuckles, a collapsible baton, and a shotgun; 3.8 pounds of concentrated cannabis a/k/a THC wax; various vials of THC oil for vape pens; packaging materials; scales; a vacuum sealer; four ledger books; and a money counter. The defendant was twenty-five years old.The police also recovered a Civil Summons and Complaint for Forfeiture filed in the Circuit Court in Illinois. The lawsuit alleged that the defendant had been stopped by police in the state of Illinois and after a law enforcement agent and a K-9 independently detected an odor of marijuana, $221,740.00 in cash was recovered from the door panel of the vehicle the defendant was operating. The State of Illinois brought the civil proceeding seeking forfeiture of the $221,740.00 found in the defendant’s vehicle. Photos of the seized evidence, as well as ledgers and forfeiture documents, were received into evidence during the instant hearing as People’s Exhibits 1-6.Officer Moon testified in detail regarding his training and experience in narcotics investigations and enforcement. Based upon his training and experience he opined that the large quantity and the variety of types/forms of marijuana recovered, coupled with the large sum of United States currency, the weapons, the drug paraphernalia, and the ledger books, demonstrated that defendant primarily was a seller of marijuana. Specifically, the four separate ledger books detailed different types of marijuana being sold to numerous customers. Additionally, defendant was living independently from his parents without any evidence or indication that he had any source of income, other than selling drugs.James Einstman, Jr., LCSW testified on behalf of the defendant. Mr. Einstman was retained by the defendant to conduct a substance abuse evaluation and provide counseling to the defendant at the request of the defendant’s attorney. The defendant had no prior alcohol or substance abuse treatment. Mr. Einstman testified that the defendant suffers from a significant alcohol and substance abuse problem. Despite the purported serious nature of the defendant’s use and abuse of illegal substances, defendant was able to completely stop using illicit substances since the date of his arrest. The defendant was able to accomplish this feat even though he did not receive any treatment other than counseling from Mr. Einstman. In his diagnosis, Mr. Einstman relied exclusively on what he was told by the defendant, the defendant’s attorney, and the defendant’s mother. While he was aware of the use and benefits of corroboration through secondary sources in substance abuse evaluations, Mr. Einstman did not seek secondary source corroboration. He was unable to do so, as defendant did not provide Mr. Einstman with a release to speak with anyone about his purported drug use and abuse, other than his mother and his attorney. No home visits were conducted, and a mental health evaluation never was completed as part of the evaluation process. To Mr. Einstman’s knowledge, the defendant NEVER has tested positive for using any illegal drugs, and drug testing was not part of his treatment regimen. Mr. Einstman was compensated for evaluating the defendant, counseling the defendant, and for testifying in Court on behalf of the defendant. Mr. Einstman’s evaluation was entered into evidence as defendant’s Exhibit A.Defendant’s mother Dorothy Cancel testified that the defendant was residing with her on the date of the hearing, and she revealed that the defendant had completed a job application for AMSCAN and had passed the company’s drug test in December, 2017. She acknowledged that she was not aware of the extent of the defendant’s use and abuse of drugs. She did not think he had that bad of a problem.As is required pursuant to CPL §216.05(3)(b), upon completion of a judicial diversion hearing, “the court shall consider and make findings of fact with respect to whether: (i) the defendant is an eligible defendant as defined in subdivision one of section 216.00 of this article; (ii) the defendant has a history of alcohol or substance abuse or dependence; (iii) such alcohol or substance abuse or dependence is a contributing factor to the defendant’s criminal behavior; (iv) the defendant’s participation in judicial diversion could effectively address such abuse or dependence; and (v) institutional confinement of the defendant is or may not be necessary for the protection of the public.”With respect to CPL §216.05(3)(b)(i), the Court finds that the defendant is an eligible defendant. As to CPL §216.05(3)(b)(ii), the Court notes that the self-reporting of substance abuse, coupled with the lack of credible corroboration makes this Court question whether the defendant actually ever had a substance abuse issue or a history of alcohol or substance abuse. With respect to CPL §216.05(3)(b)(iii), the Court finds that alcohol or substance abuse or dependence was not a contributing factor to the defendant’s criminal behavior. Rather, greed and the desire to make hundreds of thousands of dollars in cash profit is what led to the defendant’s criminal behavior. The defendant was running a successful drug business, complete with packaging materials, ledger books, a money counter, weapons, and hundreds of thousands of dollars in United States currency. It is noted that a total of $319,956.59 in cash was seized from the defendant. With respect to CPL §216.05(3)(b)(iv), the Court finds that the defendant’s participation in judicial diversion would not effectively address any abuse or dependence. It is uncontroverted that the defendant has not utilized any illicit substances since the date of his arrest, June 8, 2017, as was corroborated by him passing a drug test in December, 2017. Any de minimus use or abuse was resolved by the defendant simply quitting “cold turkey” and taking part in a relatively minor treatment counseling program. The defendant already has resolved any purported abuse or dependence issues through his counseling with Mr. Einstman, so treatment through the judicial diversion program is unnecessary and would have virtually no effect at all on defendant. With respect to CPL §216.05(3)(b)(v), the Court finds that institutional confinement of the defendant may not be necessary for the protection of the public, but certainly a presentence investigation report (should the defendant enter a plea of guilty or be found guilty after trial) would give the Court greater insight.CONCLUSIONS“[U]nder the program created by CPL article 216, whether an eligible defendant will be offered judicial diversion pursuant to that article remains within the trial court’s discretion, and [a] defendant is not automatically entitled to judicial diversion” (People v. Clarke, 155 AD3d 1242 [3rd Dept., 2017] citing People v. Meddaugh, 150 AD3d 1545, 1547, 55 NY3d 777 [2017]; see CPL 216.05[4]; People v. Driscoll, 147 AD3d 1157, 1159, 48 NYS3d 522 [2017], lv. denied 29 NY3d 1078, 64 NYS3d 167, 86 NE3d 254 [2017]; People v. Powell, 110 AD3d 1383, 1384, 973 NYS2d 870[2013]; People v. Buswell, 88 AD3d 1164, 1165, 931 NYS2d 543 [2011]).“Diversion into treatment is designed for those who not only have a history of alcohol or substance abuse or dependence, but whose abuse or dependence is a contributing factor to their criminal behavior (CPL article 216). In this case, [even if the Court were to credit the defendant's tenuous claim and Mr. Einstman's suspect diagnosis] of substance abuse, this Court is not persuaded that such abuse is a contributing factor to [defendant's] criminal behavior. It is well established that abuse and dependence represent different levels of the same disease; abuse being harmful use that has not progressed to the level of dependence. Here, the [quantity] of drugs recovered from the defendant’s home, the large sums of money, [the ledger books, the currency counter], and the drug packaging paraphernalia [all reveal] that he is a person engaged in the sale of drugs for profit rather than a low-level dealer selling drugs to support his own habit. Moreover, all signs of abuse or dependence are markedly absent. The defendant lives in a stable family situation [with his mother]; there have been no unsuccessful efforts to cut down or control his use; and there have been no reports of persistent physical or psychological problems caused or exacerbated by the substance” (People v. Coco, 28 Misc.3d 563 [2009]). Notably, the defendant never has tested positive for any illegal substances. His passing a drug test as part of a recent employment application corroborates that he is not using illegal substances. The objective of judicial diversion “is to have defendants who are addicted to or dependent on drugs successfully complete treatment and thereby remove the need for these individuals to commit crimes in order to make money to buy drugs for their own use” (People v. Denton, 30 Misc.3d 1232(A) [2011] citing People v. Jordan, 29 Misc.3d 619, 621-22 [County Ct Westchester County 2010]; People v. Jordan, 28 Misc.3d 708, 713 [Sup Ct Bronx County 2010]; People v. Hughes, 27 Misc.3d 1235A [Sup Ct Kings County 2010]; People v. Coco, 28 Misc.3d 563, 565 [Sup Ct Kings County 2009]). “[J]udicial diversion is not an option for casual, recreational drug users, or for entrepreneurial, for-profit drug sellers with no active drug use problem” (People v. Denton, 30 Misc 3d 1232(A) [2011]).This Court is aware and ever cognizant of the drug epidemic plaguing our society, as well as the court system’s trend to liberally use drug courts in an effort to curb recidivism in cases of those addicted to drugs. It is imperative, however, that courts keep the fox out of the henhouse if those efforts are to be successful. Permitting drug sellers to participate in judicial diversion programs not only drains limited resources, it is counterproductive. Such a practice is against public policy, as it puts some of our most vulnerable citizens at a heightened risk. A drug dealer participating in a judicial diversion program has the potential to simply expand the dealer’s customer base and results in a dealer potentially taking the place of a user who actually could benefit from the program. Permitting this defendant, who clearly is a calculating, successful entrepreneur with no documented or credible history of drug use or abuse, entry into the judicial diversion program would shock the conscience of this Court. This Court makes that statement after having observed the testimony of the witnesses and after having duly considered all the testimony, evidence and arguments in this case.For all of the foregoing reasons, the defendant’s application to be placed into judicial diversion is denied (see People v. Pittman, 140 AD3d 989 [2nd Dept., 2016]; People v. Carper, 124 AD3d 1319 [4th Dept., 2015], leave to appeal denied by 25 NY3d 949 [2015]; People v. Powell, 110 AD3d 1383 [3rd Dept., 2013]; People v. Williams, 105 AD3d 1428 [4th. Dept., 2013]; People v. Clarke, 155 AD3d 1242 [3rd Dept., 2017]; People v. Hines, 132 AD3d 1385 [4th Dept., 2015]; People v. Hombach, 31 Misc.3d 789 [2011]; People v. Chavis, 151 AD3d 1757 [4th Dept., 2017]).This matter is scheduled for a conference on May 10, 2018.This constitutes the Decision and Order of this Court.So Ordered.Dated: May, 2018Goshen, New York
