Opinion
No. 5432/2015.
07-19-2016
The PEOPLE of the State of New York, v. Creig MILLS, Defendant.
Ada Eric Aho, Office of the Special Narcotics Prosecutor, for the people. Alexandra Bonacarti, Esq., New York County Defender Services, for the defendant.
Ada Eric Aho, Office of the Special Narcotics Prosecutor, for the people.
Alexandra Bonacarti, Esq., New York County Defender Services, for the defendant.
RICHARD M. WEINBERG, J.
Defendant has been charged in an indictment with the B felony of Criminal Possession of a Controlled Substance in the Third Degree (PL § 220.16 [1] ), the C felony of Criminal Possession of a Controlled Substance in the Fourth Degree (PL § 220.09[1] ), two counts of the A misdemeanor of Criminally Using Drug Paraphernalia in the Second Degree (PL § § 220.50[1] & [2] ) and the violation of Unlawful Possession of Marihuana (PL § 221.05). The charges stemmed from the execution of a search warrant in which the defendant was the named target, based on previous sales of cocaine that the defendant allegedly made to a confidential informant. The People have consented to the defendant's entry into Judicial Diversion. Defendant now also seeks to participate in Judicial Diversion without the prior entry of a guilty plea pursuant to CPL § 216.05(4)(b). While the People do 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 If defendant successfully completes the program, the plea is withdrawn and the case is dismissed.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, in his case, 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. Radonich, 49 Misc.3d 1212A and People v. Brignolle, 41 Misc.3d 949. As stated in both Radonich and 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 Radonich case, the defendant was in the business of selling drugs. The defendant was 25 years old and, other being a drug seller, was unemployed at the time of his arrest and did not assert any history of legitimate employment. Furthermore, the defendant had a prior conviction for possession of a firearm. In the Radonich case, while recognizing that the possibility of deportation would be an unwelcome and adverse consequence of a conviction, this Court nevertheless found that there were no factors which would distinguish that defendant from any other non-citizen who engaged in the business of selling drugs. And because the prospect of deportation applied to all such drug-selling non-citizens, this Court concluded that this prospect, in and of itself, was not an exceptional circumstance. Accordingly, entry into Diversion without a plea was denied.
In the instant case, the defendant, Creig Mills, who is 38 years old, came to this country when he was 14 years old. Unlike Mr. Brignolle, but similar to Mr. Radonich, this defendant was not employed at the time of his arrest and had been unemployed for the past several years. Also unlike Mr. Brignolle, and similar to Mr. Radonich, Mr. Mills is charged with possessing drugs with the intent to sell them. Although Mr. Mills has had only one prior contact with the criminal justice system, which resulted in a youthful offender disposition, Mr. Mills was the target of a search warrant in this case. In addition to the drugs which were recovered pursuant to the search warrant, Mr. Mills was found in possession of paraphernalia associated with the business of packaging and selling drugs.
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 will grant 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 38 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 recent history of substantial legitimate employment. While the Court is sympathetic to the fact that Mr. Mills has a learning disability and some physical impairment, these factors do not justify treating this defendant any differently from other alleged drug sellers.
While the possibility of deportation may be an unwelcome and adverse consequence of a guilty plea, 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.