You are here: / / JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING...

JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING.

The First Department, in a full-fledged opinion by Justice Sweeny, determined the defendant was eligible for judicial diversion where defendant was charged with both statutorily qualifying offenses and other offenses which were nowhere defined as qualifying or disqualifying offenses:

The Legislature amended the DLRA [Drug Law Reform Act] in 2009, enacting CPL 216.00 and 216.05 to create a mechanism for judicial diversion. Under this program, eligible felony offenders whose drug or alcohol abuse contributed to their criminal conduct, may, at the discretion of the court, be afforded the opportunity to avoid a felony conviction and a prison sentence by successfully participating in a judicially supervised substance abuse program. Unlike prior drug offense programs, judicial diversion does not require the prosecutor’s consent … . * * *

… [The statute] sets forth a list of disqualifying offenses/conditions that prevent a defendant from qualifying for judicial diversion, although as noted, even some of those offenses may not prevent disqualification with the People’s consent. In applying the principle “espressio unius est exclusio alterius,” “an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted or excluded” … . The inescapable conclusion is that the Legislature’s decision not to list certain offenses as disqualifying means their mere inclusion in an indictment will not prevent an otherwise eligible defendant from making an application for judicial diversion. People v Smith, 2016 NY Slip Op 02596, 1st Dept 4-5-16

CRIMINAL LAW (JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING)/JUDICIAL DIVERSION PROGRAM (JUDICIAL DIVERSION PROGRAM AVAILABLE TO DEFENDANTS CHARGED WITH BOTH QUALIFYING OFFENSES AND OFFENSES WHICH ARE NEITHER QUALIFYING NOR DISQUALIFYING)

You might also like
DEFENDANTS FAILED TO DEMONSTRATE A LACK OF ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONDITION WHICH CAUSED PLAINTIFF TO SLIP AND FALL; PLAINTIFF ADEQUATELY IDENTIFIED THE CAUSE OF HER FALL; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
City Deemed Immune from Suit—Governmental and Proprietary Functions Explained 
Unambiguous Language In a Rider and an Exclusion In a Financial Institution Bond Precluded Coverage of Losses Stemming from the “Madoff” Ponzi Scheme
THE EVIDENCE DEFENDANT SHARED THE CO-DEFENDANT’S INTENT TO STAB THE VICTIM WAS LEGALLY INSUFFICIENT (FIRST DEPT).
Defendant’s Placement of a Bag in the Engine Compartment Deemed Inconsistent with An Innocent Explanation
Operating a Scaffold for the Benefit of an Enumerated Activity Done by Others (Caulking) Entitles Scaffold Operator to Coverage Under Labor Law 240 (1)
Alternative Holding in Prior Appeal Did Not Have Preclusive Effect
THE PLAINTIFF DID NOT DEMONSTRATE HIS DECEASED BROTHER MADE AN INTER VIVOS GIFT OF THE COOPERATIVE APARTMENT TO PLAINTIFF; THE STATUTE OF FRAUDS APPLIES AND THERE WAS NO WRITING; AND THE FAILURE TO FOLLOW THE TRANSFER PROVISIONS OF THE PROPRIETARY LEASE NEGATED A FINDING OF DONATIVE INTENT (FIRST DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

LANDLORD OWED NO STATUTORY DUTY TO ABATE LEAD IN AN APARTMENT WHERE THE CHILD... DEFENDANTS WAIVED ANY OBJECTION TO PLAINTIFF’S ATTORNEY BY PARTICIPATING...