Legal Aid Obtains Ruling Permitting Client With No Prior Record To Participate In Diversion Program Without Guilty Plea; Legal Aid Chief Attorney Says Relief Should Be Granted By Other Courts When Needed
THURSDAY, OCTOBER 03, 2013

A 49-year-old Legal Aid client living lawfuly in the United States for more than 30 years with no prior record before being arrested for drug possession was permitted to participate in a diversion program by Acting Supreme Court Justice Richard Weinberg without a guilty plea because the Judge ruled that there is no indication that the client intended to sell drugs and his crime "was clearly the result of his drug addiction."

Hamilton Lee, a Staff Attorney in the Manhattan Criminal Defense Office of The Legal Aid Society, had argued that a guilty plea could enhance the possibility of deportation and could expose his client to a lengthy period of immigration detention. Judge Weinberg agreed and said that immigration detention, if that were to occur, could completely undermine diversion.

Steven Banks, the Attorney-in-Chief of The Legal Aid Society, said in a statement to the New York Law Journal that "on behalf of our client, we are gratified that Judge Weinberg agreed with most of our legal arguments and granted our client the relief that was necessary in this case. We are hopeful that other courts will grant this sort of relief when needed."




New York Law Journal
Judge Examines Effect of Deportation Threat on Diversion
By John Caher
October 3, 2013

A judge in Manhattan has held that the mere prospect of deportation is not an "exceptional circumstance" that would entitle a non-citizen drug defendant to participate in a diversion program without entering a guilty plea.

Acting Supreme Court Justice Richard Weinberg (See Profile) said that "to hold that non-citizenship status and its accompanying possibility of deportation automatically qualifies as an exceptional circumstance would be to create a two-tiered system of justice favoring non-citizens over citizens."

However, in the matter at bar, People v. Brignolle, 3632/12, the defendant persuaded Weinberg that the possibility of deportation in his case is the type of "collateral consequence" that qualifies as an "exceptional circumstance." Weinberg allowed Reginald Brignolle to participate in judicial diversion, without the Damocles sword of a guilty plea.

Weinberg's decision centered on a drug law reform measure that permits courts to divert some offenders to treatment on the theory that, but for their addiction, the individual probably would not be involved in illegal behavior.

Typically, a defendant accepted into a diversion program pleads guilty to a felony, with sentencing deferred while he or she undergoes court-monitored treatment. If the defendant successfully completes the program, the plea is withdrawn and the case is dismissed; if the defendant fails or is rearrested, he or she could be sentenced to prison.

Under CPL 216.05, a defendant can participate in judicial diversion without entering a guilty plea only if entering such a plea would likely result in severe collateral consequences.

In at least two trial level decisions this year, People v. Kollie, 38 Misc3d 865 (Westchester County) and People v. Fernandez, Ind QN 10163/12 (Queens), judges have found that the threat of deportation is the type of collateral consequence that would warrant allowing a defendant to participate in diversion without entering a guilty plea.

Weinberg rejected the reasoning of his colleagues.

"While deportability may be a severe consequence for a long term legal resident first offender who possesses drugs for his own use, it is not necessarily a severe consequence for a non-citizen who has been in the business of selling drugs," Weinberg wrote. "This Court does not and will not hold that the possibility of deportation for a non-citizen requires a per se finding of exceptional circumstances in every case."

However, Weinberg said the Brignolle case is exceptional.

He noted that the defendant is a 49-year-old individual who has lawfully lived in the United States since 1972, owns a small business and had never been arrested before he was charged with a drug possession crime. Weinberg said there is no indication that Brignolle intended to sell drugs and his crime "was clearly the result of his drug addiction."

Alona Katz of the Office of the Special Narcotics Prosecutor argued that since drug addiction and drug use are independent grounds for deportation, a guilty plea would only add another ground for expulsion. She opposed allowing Brignolle into a diversion program without a guilty plea.

But Hamilton Lee of the Legal Aid Society, for the defense, countered that he could only find one case since 1952 in which the government successfully deported an individual solely because he or she was a drug abuser. Lee maintained that a guilty plea could enhance the possibility of deportation and could expose his client to a lengthy period of immigration detention.

Weinberg agreed and said that immigration detention, if that were to occur, could completely undermine diversion.

"This would make drug treatment an impossibility and render the whole Diversion process illusory," Weinberg wrote. "Even if defendant did successfully complete the Diversion program and had his plea withdrawn and his case dismissed, the withdrawn plea would still be considered a conviction for immigration purposes and defendant would remain subject to deportation."

Weinberg said Brignolle has been participating in an out-patient treatment program for the past six months and has not re-offended.

"To require defendant to enter a guilty plea in order to avail himself of Judicial Diversion would expose him to the prospect of being deported to a place where he has not lived since he was eight years old and where he has neither family nor any other ties," Weinberg wrote. "Under the particular facts and circumstances of this case, the possibility of deportation is a severe collateral consequence which would likely flow from defendant's entry of a guilty plea."

Kati Cornell, spokeswoman for the Office of the Special Narcotics Prosecutor, said that since 2009 there have been only seven times in the several hundred diversion cases the office has handled in which a judge has allowed a defendant into treatment without requiring a guilty plea.

Cornell said four of those cases, including the Brignolle matter, involved defendants potentially facing immigration consequences. In three cases, judges diverted defendants without a plea in order to protect their professional license, she said.

Steven Banks, attorney-in-chief of The Legal Aid Society, said in a statement: "On behalf of our client, we are gratified that Judge Weinberg agreed with most of our legal arguments and granted our client the relief that was necessary in this case. We are hopeful that other courts will grant this sort of relief when needed."