New Rockefeller Drug Laws

The New Rockefeller Drug Laws

Orders of protection have become increasingly common within the criminal justice system.  New York recognizes both “temporary” and “permanent” orders of protection.  A temporary order of protection refers to an order that remains in place while a case is still pending i.e., before a defendant has gone to trial and has been either acquitted or convicted, or has pled guilty as part of a plea bargain.  Temporary orders of protection are often issued by courts at arraignment, usually in favor of crime victims, their family members, or a witness in a case.  These orders may remain in effect, or be extended, for the entire time the case is pending.  See Criminal Procedure Law Sections 530.12 and 530.13.

Permanent orders of protection have the same intent and purpose as temporary orders, with the significant difference being that permanent orders of protection can only be issued at the time of sentencing after a defendant has been found guilty of an offense.

Judges have a great deal of discretion over the restrictions contained in the orders of protection they issue.  However, the most significant distinction is whether or not an order of protection contains a stay away provision.  “Stay away” orders require a defendant to avoid any contact with a protected person, including not only physical contact but also communications by telephone, mail, email or any other means.  A stay away order can be a huge problem when the defendant  shares a residence with the protected person, as this order will require the defendant to vacate the shared residence for as long as the order remains in effect and regardless of whether the defendant has an ownership interest in the residence.

Less restrictive orders of protection contain only “refrain from” provisions which generally mean that a defendant can have contact with a protected person, so long as that contact is benign and not for the purpose of threatening or committing any criminal acts against the protected person.

Additional provisions that are often included in both “stay away” and “refrain from” orders of protection may forbid a defendant from possessing firearms while an order of protection remains in effect and require a defendant to surrender any firearms in his possession.

In addition to the use of orders of protection in the criminal court system, the orders are frequently used in the Family Court System.  New York State Family Courts and Criminal Courts have concurrent jurisdiction over family offense proceedings.  Concurrent jurisdiction means the courts share authority over the cases.  In this situation, the courts have concurrent jurisdiction because of the nature of the issues: family offenses.

A family offense is a criminal act committed between members of a family or similar relationship.  It includes people related by blood or marriage, people with children in common, as well those who either reside together or have been in an “intimate relationship.”  The law includes disorderly conduct, harassment, menacing, reckless endangerment, assault, and stalking.  These actions constitute a family offense.  Proposed legislation may add various sexual offenses to the included conduct.

The concurrent jurisdiction between the family courts and criminal courts allows for civil and/or criminal ramifications when an order of protection is violated.  The individual filing for an order of protection has the choice of filing in family court, criminal court, or both.  A violation of such an order may lead to a criminal contempt charge.  In addition, the underlying offense (assault, harassment, etc.) may be upgraded to the higher degree.  This may have serious consequences in terms of penalties.

Orders of protection are often times issued at an ex parte hearing.  An ex parte hearing is one conducted at the request of only one party, attended by only one party, and without any input from the other party.  Such a proceeding is sometimes even conducted without notice to the adverse party.

New York courts have determined that when an order of protection is issued by such method, the defendant (or “respondent” if in a family court case) can demand a prompt hearing to determine whether the order is valid.  Such a hearing may result in the order being dismissed, or the temporary order of protection may become permanent.

Though New York statutes explain that an issuance of an order of protection is “not a finding of wrongdoing,” there may be serious consequences involved in such an order, including displacement from one’s home and family.  In addition, orders of protection often forbid the possession of firearms and firearm licenses, which can result in the loss or suspension from employment for individuals who are required to be able to possess firearms as part of their employment.

Perhaps most significantly, an order of protection can, and often does, form the basis of subsequent criminal charges, which are often more serious than the underlying offense that warranted the issue of the order of protection in the first place.  While orders of protection can certainly serve a useful purpose in both criminal and family proceedings, they are sometimes abused by vindictive complainants seeking to gain leverage in collateral proceedings such as divorce or matrimonial cases.

Don’t make the mistake of treating an order of protection as just another piece of paper or being fooled into thinking that there’s nothing you can do about an order that’s already been issued.  Just because a judge may have issued an order of protection without your knowledge or input, this does not mean you are not entitled to your day in court.

As part of our comprehensive criminal practice Raiser & Kenniff, PC, represents individuals subject to orders of protection in both criminal and family court.  We will act swiftly to ensure that an order of protection hearing takes place and that your rights are vigorously defended.  The potential ramifications of an order or protection are too serious to ignore.

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Below is a chart to help you understand the sentencing guidelines for Drug Offenses:

2009 Rockefeller Drug Law Reform Sentencing Chart⁶

¹ Requires recommendation of DA, material assistance in prosecution of drug offense, and court approval. (Penal Law §65.00(1)(b)).

² Excluded if convicted of another felony offense, prior violent felony, a class A or B non-drug or subject to an undischarged term. CPL §410.91 (2).

³ No prior state prison. Less than 50 yrs old. Must be within 3 years to parole or conditional release. Excludes crimes listed in (Corr.L. §865(1)). For terms of more than 3 years must wait for rolling admissions.

⁴ Same as ft. note 3. For terms of more than 3 years must wait for rolling admission. (Corr.L.§865(2)).

⁵ See CPL §216.00(1)(a) for exclusions, but D.A. may consent to include exclusions.

⁶ Effective 4/7/09.

⁷ Must serve 9 months jail or prison time to be eligible.

⁸ Judicial Diversion effective 10/7/09. Applies to crimes committed prior to Act not yet sentenced.

⁹ Alternative determinate sentence possible (8-20).

There are major changes with the New Legislation.  A few of these changes include:

1. For first felony drug and marijuana offenses (Class B, C, D, & E): Imprisonment is no longer mandatory.  Probation and/or a split sentence are now available dispositions.  In addition, the Court can order the defendant directly into the SHOCK or Willard Drug treatment program if the person is sentenced to upstate imprisonment.
2. Second felony offenders (with non-violent prior felony convictions): Imprisonment is no longer mandatory if the defendant is “judicially diverted.”  Diversion, as well as the other programs, will be explained further below.  Additionally, the minimum prison sentence has been reduced from a mandatory 3 ½ years to 2 years for a B felony and reduced to 1 ½ years from a mandatory 2 years for a C felony.
3. The new law does not require DA consent for the Willard Drug Program.  The old law required DA approval before the judge could sentence a defendant to a sentence of parole supervision.  In addition, certain offenses only were Willard eligible offenses, and that list has been expanded to include more offenses.  See below for more information about Willard.

THE TREATMENT OPTIONS AVAILABLE:

A) The Willard Program

Willard was originally established as a joint program between the Division of Parole, the Department of Correctional Services (DOCS), and the Office of Alcoholism and Substance Abuse Services (OASES).  It was established to target certain class D and E second felony offenders whose criminal conduct was related to a substance abuse problem.  Willard itself is a sentence of parole supervision, with the first 90 days spent in an intensive drug treatment program.  Since its inception in 1995, Willard has been available to second felony offenders convicted of a “specified offense” as defined by Criminal Procedure Law Section 410.91(5), upon the finding that the defendant has a substance abuse history that is a “significant contributing factor” to his criminal conduct, that this problem can be addressed by a period of parole supervision, and that “imposition of such a sentence would not have an adverse effect on public safety or public confidence in the integrity of the criminal justice system.”  CPL Section 410.91(3).  For class D felony offenders, under prior law, Willard was not available without the consent of the prosecution.

Drug law reform makes several significant changes to CPL 410.91:

1. The list of specified offenses is expanded to include burglary in the third degree, class C drug offenses, and first-time class B drug offenses.  The lists of offenses is now:
   • Burglary 3^rd – Penal Law Section 140.20
   • Criminal Mischief 3^rd – PL 145.05
   • Criminal Mischief 2^nd – PL 145.05
   • Grand Larceny 4^th – PL 155.30 (excluding subdivisions 7 and 11)
   • Grand Larceny 3^rd – PL 155.35 (excluding offenses involving firearms, rifles, and shotguns)
   • Unauthorized use of a vehicle 2^nd – PL 165.06
   • Criminal Possession of Stolen Property 4^th – PL 165.45 (excluding subdivisions 4 and 7)
   • Criminal Possession of Stolen Property 3^rd – PL 165.50 (excluding offenses involving firearms, rifles, and shotguns)
   • Forgery 2^nd – PL 170.10
   • Criminal Possession of a Forged Instrument 2^nd – PL 170.15
   • Unlawfully using slugs – PL 170.60
   • Any attempt to commit any of the above-listed offenses
   • Any Class C, D, or E felony drug offense
   • Any Class B first-time drug offense
2. Those who have been previously convicted of a class B Article 220 offense are no longer excluded from Willard.
3. The District Attorney no longer needs to consent to a Willard sentence.
4. Willard is now available for first time B felony drug offenders.

B) SHOCK Incarceration (Correction Law Sections 865-867)

Started in 1987 as a DOCS program, Shock is a 6 month-long boot-camp style program that provides intensive substance abuse treatment, education, and an opportunity for a significantly reduced prison sentence for those who successfully complete the program.  Those who graduate are awarded an Earned Eligibility Certificate and are immediately eligible for parole release (those serving indeterminate sentences) or conditional release (those serving determinate sentences).  Until the 2009 amendments, eligibility for Shock was determined only by DOCS after reception at a facility and inmates were only eligible for Shock if: within 3 years of parole eligibility or conditional release at the time of reception, at least 16 years old but not yet 40 years old at the time of reception, not convicted of an A-1 felony, violent felony offense, homicide, specified sex offense, escape, and had no prior felony conviction for a felony upon which a determinate or indeterminate sentence was imposed.  Unlike Willard, decisions regarding placement in Shock were solely in the province of DOCS, and judges had no authority to order an inmate to be placed in the program.

Drug law reform makes several significant changes to Shock:

1. Judicially ordered Shock and Alternative to Shock Programs.  Sentencing judges are now authorized to order Shock placement for those defendants convicted of a controlled substance offense that requires a prison sentence.  Defendants still must meet the above criteria for eligibility.  If a judicially ordered Shock defendant is found ineligible because of medical or mental health issues, DOCS must propose an alternative to Shock program.
2. Shock eligibility has been extended beyond reception.  Current inmates can now become eligible for Shock if they meet the above-mentioned criteria.
3. 50 is the new 40.  The age limit for Shock has been extended to 50 years old from 40 years old.

C) Comprehensive Alcohol and Substance Abuse Treatment, or CASAT (Correction Law Section 2(18)

CASAT is a three-phased substance abuse treatment program that includes prison-based substance abuse treatment, work-release with a community-based treatment component, and parole with substance abuse aftercare.  Generally, inmates are eligible for CASAT if eligible for temporary release, which means that an inmate must be within two years of his or her parole or conditional release date.  2004 amendments expedited CASAT eligibility for those convicted of Penal Law Article 220 or 221 drug offenses.  However, the 2004 amendments also included a provision requiring second felony class B drug offenders to serve at least 18 months of their sentence before achieving CASAT eligibility.  This 18-month mandate has been halved so that now second felony class B drug offenders must now serve at least nine months before achieving CASAT eligibility.

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