Does New York State Allow Diversion Programs for Drug-Related First Offenses?

Interviewer: Are there any diversion programs or special drug course for people that are charged for the possession for the first time?

Diversion Programs are a Beneficial Option

Mike Kramer: Certainly, they’re getting more and more prevalent. If a drug problem can be demonstrated and drug treatment is available and an individual is willing to participate, there are many options available today to save that person jail time. Certainly, these options are preferable to having a felony conviction and many times even a misdemeanor conviction.

The circumstances surrounding the possession are taken in consideration with regard to the plea bargain function in dealing with the District Attorney’s Office and a person’s eligibility for a drug program. If a person possesses drugs it is usually for one of two reasons: (1) to sell the drugs, or (2) for personal use. Obviously a person who possesses drugs because of a drug problem will receive the most consideration from the criminal justice system.

Do the Police Tend to Overcharge Drug-Related Offenses?

Interviewer: Do the police tend to overcharge and claim all because it was in a baggie and you had a pipe then you’re dealing?

The Police Do Overcharge to Combat Plea Bargain Negotiations, Which Almost Always Lessen the Charges

Mike Kramer: The police always attempt to overcharge because they know, when it comes to plea bargaining, it is better for them and the prosecutor to start higher than lower.

A typical example of that is there are two ways to charge for possession of cocaine. One is based on aggregate weight, meaning, the weight of the cocaine and all its additives, all the substances it’s mixed with or they can charge possession of cocaine based on its purity meaning the actual cocaine present has to be 500 mg. or more.

Police, for example, who arrest someone for possession of powdered cocaine, they always usually charge a felony based on purity without any real evidence that the 500mg threshold has been met.  Why?  Because the natural inclination is to overcharge. Thus a defendant will have a felony pending until some 6-8 weeks go by and a lab report arrives.  Then a case which should have been a misdemeanor from the start will formally be reduced to one.  An experienced drug lawyer should not stop there but should obtain a further reduction to something less than a misdemeanor.

How an Individual Is Initially Charged Is a Factor in Bail and the Initial Charge Does Remain on the Individual’s Criminal Record

The problem with that is the police are taking advantage of the system because if you charge with the felony initially, a judge will be more inclined to set bail rather than release someone on an appearance ticket.

If you cannot post the bail immediately, you could remain in jail for a day or two before it is posted and you will have a felony arrest on you record for a case that should have been a misdemeanor from the start. All because the police overcharged.