Opinion
5361/14
10-27-2015
The People of the State of New York v. Alex Radonich, Defendant.
For the People: ADA Katherine Gora, Office of the Special Narcotics Prosecutor, 80 Centre St., NY, NY 10013, (212) 815-0400. For the Defendant: Gordon Ludwig, Esq., The Legal Aid Society, 49 Thomas St., NY, NY 10013, (212) 298-5384.
For the People: ADA Katherine Gora, Office of the Special Narcotics Prosecutor, 80 Centre St., NY, NY 10013, (212) 815-0400.
For the Defendant: Gordon Ludwig, Esq., The Legal Aid Society, 49 Thomas St., NY, NY 10013, (212) 298-5384.
Richard M. Weinberg, J.
Defendant has been charged in an indictment with three counts of the B felony of Criminal Sale a Controlled Substance in the Third Degree (PL§ 220.39 [1]) and one count of the B felony of Criminal Possession of a Controlled Substance in the Third Degree (PL §220.16 [1]). These charges are based upon three separate sales to an undercover officer over a number of months and the execution of a search warrant at the defendant's residence. Defendant was granted entry into Judicial Diversion by this Court on August 25, 2015. He now seeks to participate in Judicial Diversion without the prior entry of a guilty plea pursuant to CPL §216.05 (4) (b). While the People did not oppose the defendant's application to enter Diversion, they do oppose defendant's application to enter Diversion without first pleading guilty.
Consistent with the Diversion statute (CPL § 216.05), a defendant who is granted Judicial Diversion by this Court pleads guilty to a felony and signs a Drug Court plea agreement. Sentence is deferred and the Court monitors the defendant's compliance and success in treatment. If defendant successfully completes the program, the plea is withdrawn and the case is dismissed. If defendant fails in the program or is rearrested, under the plea agreement, he may be sentenced to a predetermined prison sentence (CPL § 216.05 [9][c]).
In a rare case where the Court finds the existence of exceptional circumstances, CPL §216.05 (4)(b) permits a defendant to participate in Judicial Diversion without the entry of a guilty plea. Under this statute, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe collateral consequences.
Defendant, a lawful permanent resident of this country, argues that the no-plea provision of the Diversion statute should apply to him because, as a non-citizen, a plea to the charge in the indictment would make him deportable. He essentially argues that the possibility of deportation resulting from a plea is a severe collateral consequence and that this qualifies as an exceptional circumstance under the statute.
This Court has previously written on this issue. See People v Brignolle, 41 Misc 3d 949. As stated in Brignolle and re-iterated here, the possibility of deportation for a non-citizen does not, in and of itself, require a per se finding of exceptional circumstances and the attendant entry into Diversion without a plea. To do so would create a two-tiered system which would require someone born in the United States to enter a guilty plea prior to entering into Diversion while granting a non-citizen the more favorable status of entering into Diversion without first pleading guilty. Whether exceptional circumstances exist must be determined on a case by case basis.
In the Brignolle case, the Court considered several factors before determining that exceptional circumstances existed. Mr. Brignolle, who was 49 years of age, had resided in the United States with his parents and all his siblings for the last 43 years. He had no ties to his place of birth. Mr. Brignolle was charged with a controlled substance offense based on weight. There was no allegation that Mr. Brignolle had intended to sell the controlled substance. Furthermore, Mr. Brignolle had no criminal record, had been successfully participating in an intensive outpatient drug program and had not re-offended since his arrest. Additionally, Mr. Brignolle had a long history of employment in the fashion industry and was operating a small business with his girlfriend. Under the particular facts and circumstances of the Brignolle case, the Court found the possibility of deportation to be a severe collateral consequence and allowed Mr. Brignolle to enter Diversion without a plea.
In the instant case, the defendant was in the business of selling drugs. He is charged with selling drugs to an undercover police officer on three separate occasions over a four month period. Defendant's residence was also the target of a search warrant. The Court is aware of case law which holds that a defendant should not be denied Diversion solely because he was charged with selling drugs rather than simply possessing them (see People v DeYoung, 95 AD3d 71 [2nd Dept, 2012]). Consistent with that case law, this Court previously granted the defendant the right to participate in Diversion. However, that case law does not preclude a Court from utilizing such a distinction in the context of determining whether a defendant should be allowed to enter Diversion without a plea. The defendant is 25 years old and, other than being in the business of selling drugs, was unemployed at the time of his arrest and does not assert any history of legitimate employment. Furthermore, the defendant has a prior conviction for possession of a firearm.
While the possibility of deportation may be an unwelcome and adverse consequence of a conviction, there are no factors in this case which would distinguish this defendant from any other non-citizen who engages in the business of selling drugs. Because the prospect of deportation applies to all such drug-selling non-citizens, this prospect, in and of itself, is not an exceptional circumstance.
Defendant's application to enter Diversion without the entry of a guilty plea is denied.
This constitutes the decision and order of the Court. Dated: October 27, 2015___________________________ New York, New YorkRichard M. Weinberg JSC