| People v Cora |
| 2016 NY Slip Op 00066 [135 AD3d 987] |
| January 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vMartin Cora, Appellant. |
Proyect & Hart, Parksville (Joel M. Proyect of counsel), for appellant.
James R. Farrell, District Attorney, Monticello (Meagan K. Galligan of counsel), forrespondent.
Clark, J. Appeals (1) from a judgment of the County Court of Sullivan County(McGuire, J.), rendered May 21, 2014, convicting defendant upon his plea of guilty ofthe crime of criminal possession of marihuana in the second degree and the trafficinfraction of operating a motor vehicle without being restrained by a safety belt, and (2)by permission, from an order of said court, entered July 22, 2014, which denieddefendant's motion pursuant to CPL 440.10 to vacate the judgment of conviction,without a hearing.
Defendant was charged with various crimes and traffic infractions after the car hewas driving was stopped by the State Police and four pounds of marihuana werediscovered. Following the denial of his application requesting judicial diversion to asubstance abuse treatment program pursuant to CPL 216.05, defendant pleaded guilty tocriminal possession of marihuana in the second degree and operating a motor vehiclewithout being restrained by a safety belt. He was thereafter sentenced to five years ofprobation, the first six months to be served in jail. Defendant's subsequent motion tovacate the judgment pursuant to CPL 440.10 on the ground that County Court did nothave the authority to adjudicate his judicial diversion application was denied without ahearing. Defendant appeals from the judgment of conviction and, by permission, fromthe denial of his CPL article 440 motion. The portion of the sentence that imposed sixmonths in jail was stayed pending these appeals.
[*2] With regard to both his direct appeal and appeal fromhis CPL article 440 motion, defendant argues that County Court did not have jurisdictionto adjudicate his application for judicial diversion because it was not the court designatedby the Third Judicial District as a drug treatment court in Sullivan County. We disagree.Regarding assignment of such matters, the Chief Administrator of the Courts shall"[e]nsure that cases eligible for judicial diversion pursuant to [CPL article 216] shall beassigned to court parts in the manner provided by the [C]hief [A]dministrator and that, tothe extent practicable, such cases are presided over by judges who, by virtue of thestructure, caseload and resources of the parts and the judges' training, are in the bestposition to provide effective supervision over such cases, such as the drug treatmentcourts" (Judiciary Law § 212 [2] [r]; see 22 NYCRR 143.2).
Here, defendant's case was initially assigned to Judge LaBuda, who is the sole judgedesignated by the Chief Administrator to preside over the drug treatment court inSullivan County. Prior to defendant's request for judicial diversion, however, JudgeLaBuda recused himself and the case was reassigned to Judge McGuire, who, as sittingCounty Judge, has jurisdiction of felony cases (see CPL 10.10 [2] [b]; 10.20 [1][a]). Under these circumstances, and in light of the statutory language that judicialdiversion applications are to be assigned to drug courts "to the extent practicable"(Judiciary Law § 212 [2] [r]), we find no error in the assignment ofdefendant's case, including his application for judicial diversion, to another superiorcourt after the recusal of the judge designated to preside over the drug treatment court inthat county.
Turning to the merits, however, we agree with defendant that County Court erred indenying defendant's judicial diversion application. Upon the completion of a hearing onthe issue of whether a defendant should be offered judicial diversion, the court "shallconsider and make findings of fact with respect to whether: (i) the defendant is aneligible defendant as defined in [CPL 216.00 (1)]; (ii) the defendant has a history ofalcohol or substance abuse or dependence; (iii) such alcohol or substance abuse ordependence is a contributing factor to the defendant's criminal behavior; (iv) thedefendant's participation in judicial diversion could effectively address such abuse ordependence; and (v) institutional confinement of the defendant is or may not benecessary for the protection of the public" (CPL 216.05 [3] [b] [emphasis added]).
It is undisputed that defendant is an eligible defendant as defined in CPL 216.00 (1)and that his incarceration was not necessary to protect the public. Contrary to thedetermination of County Court, however, we also find that the uncontroverted evidencein the record amply supports the conclusions that defendant has a history of substanceabuse and that such substance abuse and dependence were contributing factors to hiscriminal behavior. Specifically, among other things, defendant described that hisprogressively escalating marihuana use, which began socially at age 14, advanced todaily use over the ensuing years and culminated in defendant becoming a mule,transporting larger quantities of marihuana across state lines for other individuals inorder to receive compensation in the form of marihuana. Defendant attested to resortingto this conduct when supporting his habit became too expensive, despite his gainfulemployment. We also note the expert testimony of a substance abuse counselor whoopined that, based upon his history, defendant was an addict who was cannabisdependent.
Inasmuch as "[t]he statute does not require that a defendant's . . .substance abuse or dependence be the exclusive or primary cause of the defendant'scriminal behavior" (People vDeYoung, 95 AD3d 71, 79 [2012]), but instead only requires it be acontributing factor, we find no basis for County Court's determination that the instantarrest—i.e., defendant's only involvement with the criminal justicesystem—was not contributed to by defendant's marihuana use. We also cannotagree with the court's classification of defendant as a mere recreational drug [*3]user who would not benefit from a treatment program.Thus, we find that County Court abused its discretion and reverse (see People vDeYoung, 95 AD3d at 79-80; compare People v Aitken, 101 AD3d 1383 [2012], lvdenied 21 NY3d 1040 [2013]).
McCarthy, J.P., Egan Jr., Rose and Lynch, JJ., concur. Ordered that the judgment isreversed, on the law, defendant's application to participate in judicial diversion pursuantto CPL article 216 granted, and matter remitted to the County Court of Sullivan Countyfor further proceedings in accordance with CPL article 216. Ordered that the order isaffirmed.