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Carefully Consider the Terms of Participation in Diversion

Reform criminal justice

The New York Judicial Diversion Program (JDP) offers a chance for a person charged with a drug-related criminal offense to avoid incarceration by agreeing to enter treatment and submit to other conditions. While diversion is an excellent outcome for many persons who are otherwise facing serious jail time, it should not be accepted lightly, and not without a full understanding of all the terms and conditions placed on participation in the JDP.

Agreement Required for Diversion

New York Criminal Procedure Law requires the defendant to agree either on the record or in writing to the release conditions set by the court when granting diversion, such as participation in treatment, periodic court appearances and drug testing, a requirement to refrain from engaging in criminal behaviors, and other conditions. If there is no agreement, either in writing or in the court record, then the defendant has not technically been given diversion.

Guidelines for a Diversion Agreement

A skilled defense attorney will make sure any diversion agreement is fair to the defendant and does not give up important rights or place the defendant at the mercy of the court. Some important factors to consider include the following:

Don’t waive a sealing of your record after successful completion of diversion; instead get a guarantee that your record will be sealed

Cap the sentence which will be imposed if you fail to successfully complete diversion; consider what the sentence in a plea agreement would have been instead of diversion. A defendant shouldn’t be punished for trying but failing in the diversion program.

Set out the specific disposition after completion of diversion – Will the original charge be dismissed, reduced to a violation, or reduced to a misdemeanor? The final disposition should be spelled out in the diversion agreement. An excellent provision would be to give the judge authority to dismiss the charge entirely if the defendant performed exceptionally well in the JDP.

When the Prosecutor Fights Entry into Program

Participation in diversion can be an uphill battle if the prosecutor is not on board and supporting the request. A defendant in this situation should stress the need for treatment and how it will help the person avoid criminal behavior. Diversion is likely to be denied to a person who committed drug offenses for financial gain, as opposed to criminal acts fueled by addiction and the need to support the offender’s habit.

An individual who is statutorily eligible for diversion and has a history of substance abuse or dependence should be allowed into the program, although it may take skilled and strenuous argument on behalf of the accused’s attorney. An accused is entitled to a hearing on admission to the JDP; this can be a full hearing with evidence and testimony, including expert witnesses, and the right to appeal an unfavorable decision.

If you have been arrested on drug charges in Orange County or the mid-Hudson Valley, call the New York criminal defense attorneys at Dupée & Monroe in Goshen at 845-294-8900 for a consultation on your options, including participation in the Judicial Diversion Program.

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