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Diversionary Programs For First Offenders

Interviewer: What are some options or programs that people have?  Are there any sort of like diversionary programs for first time offenders or like pre-trial intervention programs?

Glen Malia: Many times, it’s not for the first time offender because many time, for the first time offenders, the person gets into some sort of evaluation themselves, they get some sort of treatment themselves, the prosecutor will allow them to plead guilty to a lesser charge. However, there are diversionary programs for more serious offenders, for people who are charged with a drug possession.  It’s called in Westchester County Judicial diversion and it generally applies to someone charged with a felony possession of a controlled substance. The way the program works is you go to the court in which the felony is heard, which is county court, and you get evaluated.

Only a Crime Related to a Substance Abuse Problem Allows a Person to Use Judicial Diversion

It doesn’t necessarily have to be a drug possession crime that allows you to use the diversion but it’s got to be a crime that’s directly related to your substance abuse problem. So, you get evaluated and you have a substance abuse problem, you get evaluated and you got to be accepted in the program. Then what happens is you plead guilty to a misdemeanor and you plead guilty to a felony. Then you get what they call interim probation for one year, where you’re on probation for a year while you’re doing this diversion program - and sometimes, it’s more than a year, sometimes it could be 18 months. If you successfully complete the treatment program, then the felony conviction is wiped out and you get the balance.

If a Person Fails to Complete the Diversion Program then they Get Sentenced on Felony Charges

You can get two more years of misdemeanor probation or you can get no more probation and you get a conditional discharge and in a very small number of cases. You can actually have the conviction completely wiped out but generally speaking, in judicial diversion, you’re ending up with either a felony or misdemeanor conviction. If you don’t successfully complete the diversion program and the treatment program, then you get sentenced on the felony charge. Depending upon the nature of the drugs and depending on what the charge was, you go to state prison or at the very best, you walk away with this additional 5 years of probation and you don’t get credit for whatever period of time you spent on the interim probation while being in the diversion program.

Typical Scenario Resulting in Drug Related Charges in New York

Interviewer: When you first meet with the client that’s been arrested for a drug crime, what is their typical story that they tell you?

Glen Malia: I wouldn’t say there is a typical story, they’ll tell you what happened and most of the times, quite frankly, it’s either they were possessing or they were with people that were possessing it. They get arrested because the drug’s with them and they may tell you they got stopped, it’s always, “They had no right to stop me”, or something like that. Typically, they question the stop, they question the search frequently, and they say, “I didn’t consent to the search, the cop searched the car anyway”.

It is Important for a Defense Attorney to Ascertain Whether the Search and Seizure is Justified in a Particular Situation

Those are the issues that are always on the radar because for example, if your client is charged with possession because the drugs are found in the glove box of the car. Well how did the cop get into the glove box and so, the question that I as the attorney will ask to my client are those type of questions.  I’ll ask if it was the car, what was the car stopped for and what happened? Did they ask you to get out of the car or did he frisk you off and you got out of the car? Did he ask you to search the car and what did he do and what happened and things of that nature. There’s not necessarily a typical story on every case. I go over with the client to specific facts of their case.


Malia Law, LLC located in Cortlandt Manor, NY represents Landlords/Tenants throughout Westchester County, Putnam County and Southern Dutchess County, NY.



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