Mr. Elliott was charged with Criminally Negligent Homicide,
an E felony. He was subsequently charged with two counts of Criminal Possession
of a Controlled Substance in the Third Degree, B felonies, and two counts of
Criminal Sale of a Controlled Substance in the Third Degree, also B felonies.
He was convicted, upon a negotiated guilty plea to Criminally Negligent
Homicide and Criminal Possession of a Controlled Substance in the Fourth
Degree, a C felony.
The first charge was brought against Mr. Elliott on the
basis that he failed to seek medical attention for his friend, who was dying of
a drug overdose, while they travelled in a car to Rochester and back for the
purpose of buying heroin. Since a charge against the driver of the vehicle is
still pending, I will not comment any further on the facts of the case. I will,
however, say that there have only been a few reported cases in New York State
where an individual was charged with Criminally Negligent Homicide for failing
to seek medical attention for a dying individual.
As an E felony, a conviction for this crime carries a
maximum sentence of 1 1/3 to 4 years in state prison. Lesser sentences include
one year in a local jail or up to five years of probation supervision. An
individual convicted of this charge and sentenced to prison, and has a drug
addiction, would typically be transferred into a Comprehensive Alcohol and
Substance Abuse Treatment program, and released from prison in less than one
year.
The other charges arose out of two drug sales in the Village
of Wellsville. Although there were four charges, there were only two incidents.
And, the sentence for the sale would be identical to the sentence for
possession only. The maximum sentence would be 9 years in prison. Once a
convict has three years left on a sentence, he could expect to be transferred
into a substance abuse treatment program and quickly released. If the defendant
was sentenced to prison on both the Criminally Negligent Homicide, and the drug
sale or possession charge, the sentences would likely be served concurrently.
Thus, the higher sentence on the drug charge would actually determine the
length of imprisonment.
The defendant in this case had no criminal history before
these arrests. A first time conviction seldom results in incarceration, and
when it does, the term is typically far less that the maximum. While punishment
is certainly one of the objectives of our criminal justice system, so is
rehabilitation. The diversion into treatment programs is designed to meet this
goal. Probation, and Drug Treatment Court, have a punishment element to them,
but are designed primarily to provide rehabilitation. Andrew Elliott was
ordered to do both.
I take seriously my responsibility to the People of the
State of New York, and Allegany County. I welcome taking cases to trial, when
appropriate. In fact, I have a trial scheduled for Friday, and eight more
scheduled over the next two months. But, I engage in plea bargaining daily.
There are various reasons for this. First of all, if our office were to try
every arrest, the court calendars would become backlogged for years. It is
completely impractical, and essentially impossible. Secondly, there are no
assured convictions. I have tried hundreds of cases over my 28 years of
practicing as an attorney in three different states. I have lost trials that I
thought were clear winners (fortunately, very few) and won trials that I thought
had no chance to be successful. The most important reason for settling cases,
though, is to protect witnesses and victims. Here, there were three individuals
charged as a result of one death. Most likely, each defendant would be entitled
to a separate jury trial. The witnesses would be required to testify three
separate times. The toll this would have on the deceased’s family is
incalculable. They are suffering tremendously, and it would be wrong for me to
force them to relive this tragic incident before three separate twelve-member
juries, simply so that I could hope for a more severe sentence.
Andrew Elliott will be on probation for the next 5 years,
and also in Drug Treatment Court for the next year. His sentence is revocable.
This means that if he is not successful in his rehabilitation over the next
five years, he could be resentenced to as much as 5 ½ years in prison. He has
been in a treatment program since he was released from jail, approximately two
months after his arrest. His sentence will require, among other conditions, to
continue drug treatment, mental health counseling, complete community service,
become employed and report regularly to a probation officer and a County Court
Judge. It is my hope that this sentence helps him to avoid drug usage and that
as a result, his life is spared and he does not become another death from a
drug overdose. The deceased’s family spoke at the sentencing, and I know they
share this hope. To those who criticize the sentence, I pray that they can come
to join in this hope.
