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Fentanyl complicates judicial diversion process

Distinguishing between users and dealers grows complicated

By: Bennett Loudon//August 30, 2018

Fentanyl complicates judicial diversion process

Distinguishing between users and dealers grows complicated

By: Bennett Loudon//August 30, 2018//

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A recent decision by Monroe County Court Judge John L. DeMarco highlights an increasingly common dilemma faced by judges asked to consider applications for judicial diversion programs from defendants in drug cases.

The Aug. 14 decision lays out the case of Miguel Martinez, a recovering heroin addict charged with possession and sale of drugs and suspected of supplying fentanyl-laced heroin to the victim of a fatal overdose.

At the heart of the matter is whether Martinez was more of a drug user, or a dealer, a question critical to his application for judicial diversion.

Martinez, 41, was charged with two counts of third-degree criminal possession of a controlled substance and one count of third-degree criminal sale of a controlled substance.

He was eligible for drug treatment, and possibly a reduced sentence, under Article 216 of the state Criminal Procedure Law, which established the Judicial Diversion Program. Martinez was assessed and recommended for the program, although the Monroe County District Attorney’s Office opposed the application, which DeMarco ultimately denied.

Article 216 was enacted as part of the 2009 Drug Law Reform Act (DLRA), which was aimed at “deconstructing the mandatory one-size-fits-all approach of the Rockefeller Drug Laws.”

A major feature of the DLRA was to give judges discretion in sentencing based on individual circumstances.

“Although judicial discretion is a fundamental principle of Article 216, recent jurisprudence suggests that it is somewhat encumbered in that, should a defendant meet the statutory criteria, he should presumptively be permitted entry into the (diversion) program,” DeMarco wrote.

The Appellate Division of state Supreme Court has interpreted Article 216 to expect screening courts to use a two-pronged approach, where the first part is an evaluation of whether the defendant qualifies for diversion statutorily.

In the second part of the evaluation, a judge can deny judicial diversion in cases where “a particularly egregious factor enters into the equation, e.g. the sale of fentanyl,” DeMarco wrote.

DeMarco notes that the opioid epidemic “has been exacerbated by its proliferating offspring, fentanyl (the massively concentrated synthetic opioid that delivers up to 50 times the strength of heroin).”

“The introduction of fentanyl into the criminal justice system, especially in the context of judicial diversion, has caused a shift in the traditional examination of substance abuse and chemical dependency away from the individual user and toward society at large,” DeMarco wrote.

The evaluation of a defendant’s application for the diversion program now demands that judges “consider the extent of the harm to the community caused by his complicity in perpetuating this acute crisis,” DeMarco wrote.

In the past, DeMarco routinely granted judicial diversion to defendants charged with possession with the intent to sell controlled substances, as long as substance abuse was a contributing factor to the crime, he wrote. But it is becoming more difficult to determine where a defendant’s conduct falls on the user-dealer spectrum.

“If defendant’s culpability as it pertains to selling fentanyl exceeds the severity of his addiction, the Court would be well within the purview of its discretion to deny program admission,” DeMarco wrote.

“There exists no bright-line rule articulating the tipping point in which a defendant’s behavior crosses the threshold from user to dealer, and the court so declines to create one,” he wrote.

Martinez was arrested after selling drugs to an undercover officer as part of an investigation into a fatal overdose. Police suspected he sold heroin to the victim, but Martinez was never charged in that case.

And he admitted that he sold heroin with his brother to the overdose victim and he knew he was selling especially potent heroin that posed a risk of a fatal overdose.

“The court finds that admission to the program is not warranted based upon the threat posed by defendant to the public’s safety and welfare,” DeMarco wrote.

“In this Court’s view, the totality of defendant’s dealer-like conduct — that defendant sold fentanyl-infused heroin to customers and undercover officers, had his brother engage in sales on his behalf, and consciously disregarded the potential lethal implications of selling ‘hot’ heroin/fentanyl — surpasses his clinical diagnoses for purposes of program eligibility,” DeMarco wrote.

“In balancing defendant’s substance abuse with the sale of fentanyl, the scales are weighted against him in that his conduct is comparable to that of a dealer more so than an addict,” DeMarco wrote.

“This particular case zeroed in on the difficulty that we have when we’re mixing those that are addicted with those that are behaving like dealers,” DeMarco said in an interview Wednesday.

“The law does not preclude us allowing a dealer into the program if they are also simultaneously an addict. What has become difficult is there’s no bright-line rule or criteria,” he said.

“What we were trying to do is get deeper into the weeds and try to define and refine the process that a court should go through in trying to exercise their best discretion on legal and clinical eligibility,” he said.

Read the full decision by Judge DeMarco here:

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