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Due Process Is Required When Revoking A Conditional Sentence: A Hearing Is Not Required But There Must Be An Inquiry Of Sufficient Depth To Satisfy Due Process


Due process, inquiry, sentence imposed, hearing, violated a condition, drug treatment

People v. Fiammegta

2010 NY Slip Op 01344

New York Court of Appeals

Decided on: February 16, 2010

Trial Court Erred When It Did Not Allow Defendant An Inquiry of Sufficient Depth To Satisfy Due Process

Summary: Defendant was arrested and charged with multiple counts of burglary and trespassing. Defendant’s PSI (pre sentencing report), stated that he had been high on drugs at the time. At court, the Prosecution approved that Defendant can participate in the Kings County District Attorney’s Drug Treatment Alternative to Prison Program (DTAP). Defendant plead guilty to one count of second degree burglary, and in return, the People agreed to dismissal of the indictment once the Defendant successfully completed an 18-24 month residential drug treatment program.

           The Assistant Director of Clinical Services informed Supreme Court that Defendant was at risk of discharge. Defense counsel asked for a hearing and the Supreme Court reiterated that it would not resolve anything, remarking that the Program kicked him out. The Judge described his conversation with the Program Director and held that there was nothing more to do but sentence the Defendant pursuant to the agreement. Defendant appealed to the Court of Appeals stating that he is entitled to a hearing akin because due process in sentencing requires at least a showing by a preponderance of evidence to resolve disputed factual issues.

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Issue: Whether or not a hearing consistent with due process must be conducted to determine if a Defendant violated conditions of his release while participating in a diversion program and ultimately whether this violation of his condition must result in him being sentenced to jail.

Holding: The Court of Appeals held that a sentencing court may conduct a hearing consistent with due process and sufficient to satisfy the court that the Defendant has, in fact, violated the agreement. Additionally, when a Program discharges a Defendant for misconduct, the court must carry out an inquiry of sufficient depth to satisfy Due Process that there was a legitimate basis for the program’s decision, and must explain, on the record, the nature of its inquiry, its conclusions, and the basis for them.

Facts: Defendant was arrested and charged with multiple counts of burglary and trespassing. Defendant’s PSI (pre sentencing report), stated that he had been high on drugs at the time. At the time of sentence, the prosecutor had approved Defendant to participate in the Kings County District Attorney’s Drug Treatment Alternative to Prison Program (DTAP). The program offers substance abuse treatment in lieu of prison to nonviolent, drug-addicted felons who face a mandatory prison sentence. Defendant plead guilty to one count of second degree burglary, and in return, the People agreed to dismissal of the indictment once the Defendant successfully completed an 18-24 month residential drug treatment program and after care, to be followed by re-entry into the community. If the Defendant did not satisfactorily complete the program, he would be sentenced to eight years in prison followed by five years post release supervision.

The Assistant Director of Clinical Services informed Supreme Court that Defendant was at risk of discharge. When Defendant appeared for court the same day, the Judge warned him that it was not working. Defense counsel asked for a hearing to determine if there was a violation of his condition and the Supreme Court reiterated that it would not resolve anything, remarking that the Program kicked him out.

      The Judge described his conversation with the Program Director and held that there was nothing more to do but sentence the Defendant pursuant to the agreement. Defendant appealed to the Court of Appeals stating that he is entitled to a hearing because due process in sentencing requires at least a showing by a preponderance of evidence that there are no factual issues.

Legal Analysis: The Court of Appeals held that sentencing is a critical stage of the criminal proceeding and that the sentencing process, as well as the trial, must satisfy the requirements of the Due Process Clause. The Supreme Court has broad discretion when supervising a Defendant subject to DTAP, and deciding whether the conditions of a DTAP plea agreement have been met. In determining whether a Defendant violated a condition of his or her release under the judicial diversion program for substance abuse or dependence, the court may conduct a summary hearing consistent with due process and sufficient to satisfy the court that the Defendant has, in fact, violated the condition.

In order for a sentencing court to impose the enhanced sentence, the mere fact of the arrest is not enough. Where an issue is raised concerning the validity of the post plea charge, or, there is a denial of any involvement in the underlying crime, the court must conduct an inquiry at which the Defendant has an opportunity to show that the arrest is without merit. Additionally, the nature and extent of the inquiry, whether through a summary hearing pursuant to CPL 440.10, or some other fair means is within the court’s discretion. The inquiry must be sufficient in depth, however, so that Due Process can be satisfied. People v. Outley 80 NY2d 702, 712 1993.

     DTAP is a diversion program. A Defendant must successfully complete drug treatment in order to escape otherwise mandatory incarceration. This is not the same as the situation where the court changes the Defendant’s sentence by revoking a sentence of probation or parole at the request of the Government. Moreover, it is not practical to require an evidentiary hearing every time a Defendant disputes discharge from a Drug Treatment program for reasons unrelated to making satisfactory progress in treatment. According to Outley supra, when a program discharges a Defendant for misconduct, the court must carry out an inquiry of sufficient depth to satisfy Due Process that there was a legitimate basis for the program’s decision, and must explain, on the record, the nature of its inquiry, its conclusions, and the basis for them.

In this case, the Judge was obligated to make the requisite inquiry into the merits of Defendant’s discharge. The Judge’s options would have been limited in the event that he concluded that the program, in fact, did not possess a legitimate basis for expelling Defendant, and the District Attorney remained unwilling to approve Defendant’s participation in another program. Under the circumstances however, the Supreme Court should have offered Defendant the opportunity to withdraw his plea before imposing sentence. Accordingly, The Court of Appeals reversed the order of the Appellate Division, and remitted the case to Supreme Court.


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