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The Legal Aid Society Criminal Defense Practice William Gibney Director Special Litigation Unit 212-577-3419 Slides prepared by: AL O’CONNOR NEW YORK STATE DEFENDERS ASSOCIATION. THE NEW DRUG LAWS. New Sentencing Options.

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Presentation Transcript
the new drug laws

The Legal Aid Society

Criminal Defense Practice

William Gibney


Special Litigation Unit


Slides prepared by:




new sentencing options
New Sentencing Options

First Felony Drug - Class B through E (including sale near schools)

Imprisonment not required – Probation, splits, local jail authorized

Prison sentences remain same

Judicial Diversion authorized

new sentencing options3
New Sentencing Options

Second Felony Offenders (prior non-violent)

Class C, D and E – imprisonment not required, probation, splits, local jail authorized

Judicial Diversion Authorized

Prison terms the same, except Class C minimum reduced to 1 ½ from 2

new sentencing options4
New Sentencing Options

Second Felony Offenders

Class B (prior non-violent)

Judicial Diversion authorized

If not diverted, imprisonment mandatory – minimum reduced from 3 ½ to 2 years

Client may be SHOCK eligible

new sentencing options5
New Sentencing Options

Second Felony Offenders (prior violent)

None – mandatory prison terms unchanged

SHOCK Class B – categorically ineligible

SHOCK - Class C, D and E - Limited eligibility (e.g., where prior violent did not result in state prison sentence) – judicial placement included

No Willard parole supervision sentence

willard parole supervision sentence
Willard Parole Supervision Sentence

D.A. consent eliminated for Willard sentences

Many property crime felonies, including newly added burglary in the third degree

Property crimes - second felony offenders only (prior non-violent)

willard parole supervision sentence7
Willard Parole Supervision Sentence

Property Crimes:

Criminal mischief in the second and third degrees

Grand larceny in the fourth degree (P.L. § 155.30 except subdivisions 7 and 11)

Grand larceny in the third degree (except firearms)

Unauthorized use of a vehicle in the second degree

Criminal possession of a stolen property in the third and fourth degrees (except firearms)

Forgery in the second degree

Criminal possession of forged instrument in the second degree

Unlawfully using slugs in the first degree

Burglary in the third degree

willard parole supervision sentence8
Willard Parole Supervision Sentence

Drug Crimes –

Class B (first felony offenders)

Class C, D, and E – second felony offenders (prior non-violent)


New authority for direct judicial placement - drug cases

Eligible inmate – eligible for release on parole or conditional release within 3 years, and

has not reached the age of 50

Not previously committed to DOCS

No second felony Class B drug offenders (prior violent)

No current violent, homicide, sex, A-I, or escape convictions

shock eligibility
SHOCK Eligibility

Under 50

First Bid

Out in 3

No second B drug (prior violent)

No SHAVE (Sex, Homicide, A-I, Violent, Escape)

shock direct judicial placement
SHOCK – Direct judicial placement

Penal Law § 60.04 (7)

On defendant’s motion, the court may order DOCS to place an otherwise eligible defendant directly in the SHOCK incarceration program

SHOCK to “promptly commence”

DOCS may determine that inmate “has a medical or mental health condition that will render the inmate unable to successfully complete” the program

shock direct judicial placement12
SHOCK – Direct judicial placement

DOCS must offer alternative program, completion of which will lead to release on same terms as SHOCK

Inmate may object to alternative program

After a hearing, court authorized to modify sentence

rolling shock admissions
Rolling SHOCK admissions

DOCS may select SHOCK participants at reception centers, or at a general confinement facility when the otherwise eligible inmate is within 3 years of release

judicial diversion
Judicial Diversion

New CPL § 216 – effective 10/7/09

Eligible: All Class B through E drug and marijuana felonies

All Willard-eligible felonies (property crimes)

First felony offenders and second felony offenders (with prior non-violent)

judicial diversion ineligible
Judicial Diversion - Ineligible

Second felony offenders with predicate violent felony

Note: Clients charged with Willard list property crimes where prior violent was outside 10 year look back are eligible for diversion, even though Willard sentence is not available.

Predicate felony sex offense, homicide conviction, P.L. Art. 263 crime, aggravated harassment of employee by inmate

judicial diversion ineligible16
Judicial Diversion - Ineligible

Predicate Class A felony drug conviction

Client ever adjudicated second or persistent violent felony offender

Currently charged with violent felony or merit ineligible crime, which requires imprisonment upon conviction, as long as charge is pending.

judicial diversion procedure
Judicial Diversion - Procedure

Request for alcohol or substance abuse evaluation by defendant at any time prior to guilty plea or commencement of trial

Report by court approved entity, licensed health care professional with experience in treatment of alcohol and substance abuse, or addiction and substance abuse counselor credentialed by OASAS

judicial diversion procedure18
Judicial Diversion - Procedure


  • Whether defendant has history of alcohol or substance abuse or dependence, including “co-occurring mental disorder or mental illness and the relationship between abuse or dependence” and mental condition
  • Whether it could be effectively addressed by diversion
  • Treatment modality, level of care and length of proposed treatment
judicial diversion procedure19
Judicial Diversion - Procedure

Findings of fact with respect to whether:

the defendant is statutorily eligible for diversion;

the defendant has a history of alcohol or substance abuse or dependence;

which is a contributing factor to the defendant’s criminal behavior;

judicial diversion procedure20
Judicial Diversion - Procedure

Findings of fact with respect to whether:

the defendant’s participation in judicial diversion could effectively address such abuse or dependence; and

institutional confinement of the defendant is or may not be necessary for the protection of the public

judicial diversion procedure21
Judicial Diversion - Procedure

Guilty plea required except where it is “likely to result in severe collateral consequences”

Securing order releasing defendant to conditions of diversion program participation

judicial diversion procedure22
Judicial Diversion - Procedure

Successful completion can lead to:

Interim probation – followed by withdrawal of guilty plea and dismissal of indictment (or SCI)

Interim probation – followed by reduction to misdemeanor

Withdrawal of plea and dismissal of indictment (or SCI)

judicial diversion procedure23
Judicial Diversion - Procedure

Violation of program conditions:

Modification of conditions

Graduated sanctions


Failure in program

The court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed by Penal Law § 70.70 (2)(b)(c) - i.e., probation and local jail.

conditional sealing cpl 160 58
Conditional Sealing (CPL § 160.58)

Drug, marijuana and Willard-eligible crimes

Must complete judicial diversion, DTAP or similar judicially sanctioned substance abuse program

Sealing available for up to 3 prior drug or marijuana misdemeanor convictions

Notice & hearing rights for D.A.

conditional sealing cpl 160 5825
Conditional Sealing (CPL § 160.58)

Seal undone when charged with new crime – permanently undone if subsequently convicted

Despite sealing, records available to law enforcement, “qualified agencies” with rap sheet access, for gun licensing purposes, and police agency employment checks.

Effective: June 6, 2009

resentencing of class b drug offenders
Resentencing of Class B drug offenders

Class B old law sentences where indeterminate maximum more than 3 years

Accompanying Class C, E and E drug sentences “imposed at the same time” or “included in the same order of commitment” as the Class B drug sentence

Excluded: Also in custody for violent felony or merit time ineligible crime

Prior violent felony conviction less than 10 years old as measured from the date of resentencing application

Ever adjudicated a second or persistent violent felony offender