Effective 10/07/21, chapter 435 of the Laws of 2021 expanded the definition of “eligible defendant” for purposes of Judicial Diversion (CPL article 216) to include defendants charged with felony offenses PL 165.10 and 165.11 [auto stripping], PL 190.79 and 190.80, [identity theft], PL article 222 [cannabis] and PL 105.10 and 105.13 [conspiracy] (but only if the contemplated offense is a class B, C, D or E felony offense defined in PL article 179 [criminal diversion of medical cannabis], PL article 220 [controlled substances], or PL article 222 [cannabis]).
What does all this mean?
With respect to “medical cannabis”, PL 179.10 [criminal diversion of medical cannabis in the first degree] is committed by a “practitioner” who issues “certifications” despite having reasonable grounds to believe there is no medical need, or that the purpose is other than to treat a covered medical condition. This felony is already a diversion eligible offense – c.435 simply expands eligibility to include a conspiracy to its commission.
Similarly, some PL article 165 offenses (165.06, 165.45, 165.50) were already eligible for judicial diversion – c.435 simply expands that eligibility to include felony “auto stripping” (PL 165.10, 165.11), crimes that contain, as elements, repetitive convictions or multiple vehicles.
The expansion of diversion eligibility to include felony identity theft (PL 190.79, 190.80) is new. Note however that this expansion does not extend to PL 190.80-a [aggravated identity theft] (victim a member of US armed forces deployed abroad).
With respect to controlled substances, as under prior law, any non-class A drug felony in PL article 220 remains eligible for judicial diversion. Under c.435, a charge of conspiracy to commit any of these felonies is now also eligible for diversion.
Likewise, felony “marihuana” offenses were already diversion eligible, and c.435 transfers that eligibility to PL article 222 felonies. CPL 410.91 as presently worded includes within its eligible “specified offenses”, “any class C, class D or class E controlled substance or marihuana felony offense as defined in article two hundred twenty or two hundred twenty-one” (CPL 410.91[5]). CPL 410.91 has not as yet been amended to delete its reference to repealed PL article 221, or to substitute the term “cannabis” for “marihuana.” (And note that, because CPL 410.91 has not been so amended, as a consequence the “Willard” sentence of parole supervision, formerly available for marihuana offenses, is not as yet available for cannabis offenses defined in PL article 222.)
But, under CPL 216.00 as amended by c.435, the article 222 cannabis felonies are directly eligible for diversion.
And, with respect to “cannabis”, under c.435 a conspiracy to commit a PL article 222 cannabis felony now also may be referred to judicial diversion.
These changes wrought by L.2021 c.435 will be reflected in NYSentencing for 2022, available in January.