I am starting a series of articles about drug proliferation in upstate New York and its potential reasons - including participation of state, federal and local governments in that drug proliferation.
This is Part I.
An important question arises concerning the very existence of New York's so-called Drug Treatment Courts: Who established these courts, under what legislative authority, and where do they fit within the judicial system established by the New York Constitution?
Article VI, § 1 of the New York Constitution establishes the Unified Court System and identifies its constituent courts, including Supreme Court, County Court, Family Court, Surrogate's Court, and the Court of Claims.
There is no Drug Court in that constitutional enumeration.
The Constitution expressly provides for the establishment, jurisdiction, and judicial offices of recognized courts. Article VI, § 13 establishes Family Court. Article VI, § 15 provides for New York City's Civil and Criminal Courts. Article VI, § 16 governs the establishment of District Courts.
Where is the corresponding constitutional or statutory provision establishing Drug Courts?
I. The Legislature Authorized Judicial Diversion, Not a Separate Drug Court
Criminal Procedure Law Article 216 is entitled Judicial Diversion Program for Certain Felony Offenders.
It authorizes eligible defendants to undergo substance-use treatment under judicial supervision.
Crucially, CPL § 216.05(8) provides that the court retains jurisdiction over the defendant during participation in judicial diversion.
The Legislature thus provided for treatment while preserving the criminal court's jurisdiction.
In Delaware County, NY, for example, a criminal proceeding pending before County Court Judge Hubbard is within jurisdiction of the County Court.
Participation in substance-use treatment does not, by itself, create a new court or transfer the prosecution to another judicial officer.
Yet criminal proceedings have been transferred from Judge Hubbard to Judge Gary A. Rosa, who presided over Delaware County's "Drug Treatment Court".
What statute authorized the creation of this additional court, and what authorized the transfer of criminal proceedings to it?
II. Judiciary Law § 212 Does Not Establish Drug Courts
Judiciary Law § 212(1)(c) authorizes the Chief Administrator of the Courts to establish court hours, terms, and parts and assign judges to them.
Section 212(2)(r) addresses assignment of cases eligible for judicial diversion to suitable court parts, referring to drug-treatment courts as an example.
Neither provision expressly establishes Drug Courts as separate judicial tribunals with independent jurisdiction.
The distinction is fundamental.
A court part is an administrative subdivision of an existing court. It exercises the jurisdiction of that court.
A separately constituted court requires a valid legal basis for its existence and jurisdiction.
The Legislature knows how to authorize the establishment of specialized courts expressly. Judiciary Law § 212(2)(w) addresses the establishment of human-trafficking courts, while § 212(2)(bb) expressly addresses veterans-treatment courts.
Why does the provision concerning drug-treatment courts merely refer to them as existing institutions without expressly establishing them?
III. Court Administration Lacks Authority to Create Drug Courts by Regulation
Under 22 NYCRR § 143.1, the Chief Administrator authorized - UNLAWFULLY, WITHOUT HAVING LEGISLATIVE POWERS - establishment of a Superior Court for Drug Treatment within Supreme Court or County Court by administrative order.
Section 143.2 provides procedures for transferring criminal proceedings to such courts.
But administrative regulations are not statutes enacted by the Legislature.
Article VI, § 28 of the New York Constitution concerns administration of the Unified Court System.
Article VI, § 30 preserves the Legislature's authority over jurisdiction and permits delegation of rulemaking concerning practice and procedure.
Administrative authority to establish court parts and assign judges to those parts is not legislative authority to create new courts or confer independent jurisdiction to those newly created courts.
If a Superior Court for Drug Treatment is merely a designated part of County Court, it possesses no jurisdiction independent of County Court.
If it is a separate court exercising its own jurisdiction and receiving criminal proceedings from another court, the constitutional and statutory authority for that arrangement is missing.
An administrative regulation cannot confer legislative power upon the administrator who promulgated it.
IV. Federal Grants Cannot Establish State Courts
Federal law, including 34 U.S.C. § 10611, authorizes grants supporting drug-court programs.
Thus, it PRESUMES EXISTENCE of drug courts and de facto imposes a strings-attached financing condition upon the state - CREATE THEM, or you will get no money.
And NY State Court system created drug courts - UNLAWFULLY, through ultra vires administrative regulation.
But a federal funding statute does not amend Article VI of the New York Constitution.
Federal congressional authorization to finance a state TREATMENT PROGRAM may not mandate or coerce creation of A SEPARATE COURT - nor DID it coerce NYS LEGISLATURE to create a separate drug court: such legislation ESTABLISHING drug courts DOES NOT EXIST.
V. Is Delaware County Drug Court a Court, a Treatment Program, or a Contractual Arrangement?
This question becomes particularly important in Delaware County.
Public Defender Ermeti described Drug Court in open court as a contract, some time ago he openly claimed that negotiations for AMENDMENT of that contract are held behind closed doors by Judge Rosa and DA Smith, excluding him, the public defender.
Yet when I filed a Freedom of Information Law request with Delaware County seeking that contract, the County told me that it has NONE.
Yet, District Attorney Shawn Smith, in his November 2024 radio interview, separately acknowledged that admission to Drug Court involved agreements signed by his office.
So - the County LIED to me in response to a FOIL request? AGAIN? Will not be the first time. Or the second. Or the third.
These circumstances raise several questions.
What contractual arrangement did Ermeti describe?
Who are the contracting parties?
Where are the executed agreements?
If the arrangement is a treatment program, what legal authority permits the transfer of a pending criminal prosecution to another judge merely because a defendant enters treatment? There is NO support in the diversion statutes for that proposition.
And if it is simply a part of County Court, why are its criminal-case records treated as confidential medical records? That is how the County denied me access to drug court files - by quoting federal privacy regulation related to a medical facility.
An UNLICENSED medical facility on state court grounds headed by a NON-MEDICAL individual, Judge Rosa? He is most definitely not a physician and does not have medical education or license required to head a medical treatment facility.
Medical treatment records may be protected by confidentiality statutes.
Criminal court records are governed by separate laws concerning public access and sealing.
Calling a criminal court, or its part, a medical facility does not itself establish statutory authority to withhold its judicial records.
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