People v. Garcia, 1999 N.Y. Int. 0012 (Feb. 16, 1999).

CRIMINAL PROCEEDING - DUE PROCESS - RIGHT TO COUNSEL - INCARCERATION - DRUG TREATMENT PROGRAMS

ISSUE & DISPOSITION

Issue

Whether counsel was required to represent a criminal Defendant in a court appearance under Treatment Alternatives to Street Crime ("TASC"), which addressed possible readmission into a drug treatment program (as an alternative to incarceration), but ultimately resulted in the Defendant's incarceration.

Disposition

No. Counsel is only required at a "critical stage" of prosecution. Affirmed.

SUMMARY

Defendant is a drug-addicted offender who in November 1994 was indicted for criminal sale of a controlled substance in the third degree and several lesser offenses. Approximately four months later, pursuant to an agreement with the court and with representation of counsel, Defendant withdrew his "not guilty" plea and entered a plea of "guilty" in full satisfaction of the indictment. The agreement conditioned the dismissal of Defendant's felony charges upon his successful completion of a drug treatment program administered and approved by Treatment Alternatives to Street Crime ("TASC"). Before the court accepted Defendant's plea, it emphasized that Defendant's commission of some other crime or failure to complete the program would terminate the bargain.

After participating in a TASC-approved program for about 18 months, but prior to successful completion, Defendant was expelled in October 1996 for violating the program's rules. Defendant remained at large for three months without contacting the court or TASC. In January 1997, Defendant was brought before the court on a bench warrant, and the matter was adjourned in order to allow TASC to consider another suitable program. TASC, however, requested adjournments on the following two court dates, and despite the court's express wishes that a final decision be reached concerning Defendant's readmission by the next court date, TASC asked for a third adjournment. When the court began to inquire about the Defendant's conduct, the TASC representative interjected: "Your honor, if you want to sentence this defendant, go ahead." Garcia at para.7. The court discharged TASC and determined the matter was appropriate for sentencing.

The Court of Appeals granted leave to appeal because there is no precedent on the issue of a defendant's right to counsel in court appearances under TASC. At each of the four court appearances subsequent to Defendant's ejection from the program, neither the prosecutor nor defense counsel were present.

Defendant's counsel argued that the proceeding is analogous to revocation of parole or a conditional discharge "where the right to counsel is mandated by case law or statute." Id. at para. 12. However, the Court reasoned that counsel is required only where there are factual or legal questions at issue, and that the court appearances were not "accusatory proceeding[s]." Id. at para. 13. In other words, Defendant was not afforded an opportunity to present his case and be heard at these court proceedings. Having a TASC representative only before the court was therefore sufficient, as the decision to readmit Defendant was for TASC alone. Given the undisputed fact that Defendant's conduct violated the terms of the bargain, the Court affirmed the lower court's ruling that the promise to dismiss the charges was no longer binding.

Prepared by the liibulletin-ny Editorial Board.