The man who was sent to a drug-treatment program a few months before he allegedly killed a police officer on Tuesday had been rejected for the same program four years ago, when a special narcotics prosecutor made a strong argument that he was a violent criminal.
Justice Ellen M. Coin of State Supreme Court in Manhattan ruled in December 2011 that the man, Tyrone Howard, was not a suitable candidate for drug treatment because there was evidence that he had taken part in a 2009 gunfight on an East Harlem basketball court that wounded two bystanders, an 11-year-old boy and a 77-year-old man.
In May, a different judge approved Mr. Howard for the same diversion program in Manhattan drug court. Though the Manhattan district attorney’s office opposed the move, prosecutors did not point out at the time that Mr. Howard may have been embroiled in the gun battle, according to court transcripts. Mr. Howard, 30, who has a history of drug arrests, was charged this week with murder in the fatal shooting of Officer Randolph Holder in East Harlem.
The officer’s death has raised questions about the risks and potential shortcomings of the drug diversion programs, also known as drug courts, that have earned praise nationwide as effective in reducing crime and easing overcrowding in prisons. The two diversion applications by Mr. Howard were handled by two different agencies: New York City’s special narcotics prosecutor and the Manhattan district attorney. The different outcomes reflect how dependent Supreme Court justices are on the arguments they hear.
In New York, the special courts are intended to help drug addicts who commit crimes in order to feed their habits, placing them in treatment programs as an alternative to prison. Mr. Howard has a history of PCP abuse and four convictions for selling drugs. He was among 19 alleged drug dealers arrested in a housing project sweep in East Harlem last year after, the police said, he sold crack cocaine to an undercover officer. Justice Edward J. McLaughlin sent him to the Manhattan drug court in December, where, on May 14, Justice Patricia Nuñez approved a plea agreement under which Mr. Howard could avoid prison if he went into a residential treatment facility, transcripts show.
An assistant district attorney, Christopher Prevost, argued to Justice McLaughlin that Mr. Howard should not be diverted, but did not raise his possible involvement in the 2009 shooting in open court, according to transcripts. Patrick Muncie, a spokesman for Cyrus R. Vance Jr., the Manhattan district attorney, said the office had opposed diverting Mr. Howard at several court appearances, citing his long criminal record and asking for a $75,000 bail and a six-year sentence.
A senior official in the office, who spoke on the condition of anonymity because of the drug case against Mr. Howard remains open, said the shooting had been cited in an off-the-record bench conference, but not emphasized as his role in it could not be proven.
Mr. Howard never entered treatment. He persuaded Justice Nuñez to grant him a three-month delay so that he could care for one of his two sons, then he stopped appearing in court. In September, the police began to look for Mr. Howard in connection with a gang-related shooting in a housing project. On Tuesday night, Mr. Howard was fleeing from a gunfight when Officer Holder tried to stop him and was shot in the head. The police released video on Friday that they said showed three men leaving the area of a shootout between rival gangs that preceded Officer Holder’s killing, saying investigators wanted to question the men.
In the 2009 gun battle, Mr. Howard is believed to have shot another man, Dan Evans, according to court papers. He was never charged, however, because the main witness — the boy who was wounded — did not see Mr. Howard fire a weapon, prosecutors said. Mr. Evans was convicted and sent to prison. When Mr. Howard applied to be diverted into treatment two years later, after another arrest for drug possession, the prosecutor, Daniel Davis of the Office of the Special Narcotics Prosecutor, argued at length to Justice Coin that she should take the shooting into account, even though Mr. Howard was never charged, transcripts show.
Mr. Davis noted that the boy had testified to seeing Mr. Howard and Mr. Evans begin to argue on the basketball court and Mr. Evans draw his gun and shoot, but had not seen Mr. Howard refire. Mr. Davis said ballistics testing had proven that two guns were fired.
“I understand that is not conclusive evidence that Mr. Howard was the shooter, but we, at least for the purpose of diversion, consider it was very probable,” Mr. Davis argued. “We feel this defendant has a history of violence, which makes him much, much too great a risk for any sort of treatment program.” Justice Coin agreed and sent Mr. Howard back to a trial court, where he pleaded guilty and was sentenced to a year and a half in prison.
In an interview on Friday, the boy, now 18, said his memory of the event had faded, though he recalled running for his life, the sharp pain of the bullet and falling down. He said he did not know Mr. Evans or Mr. Howard. “I just heard shots and I ran,” he said. “I got hit and that’s it — it was a shootout.”
A version of this article appears in print on October 24, 2015, on page A19 of the New York edition with the headline: Suspect in Officer’s Death Was Deemed Too Risky for Drug Treatment in 2011.
By James C. McKinley Jr. - NY Times/Oct. 23, 2015