Establishes a program of drug treatment as an alternative to incarceration for eligible low level, non-violent drug offenders as provided for herein; provides for licensing of programs and criteria therefor; provides that upon satisfactory completion of course of treatment the court imposed sentence of conditional discharge shall be terminated; appropriates $21,000,000 to the division of criminal justice services; creates a class C felony of "operating an illegal drug enterprise".
STATE OF NEW YORK
________________________________________________________________________
4206
2013-2014 Regular Sessions
IN ASSEMBLY
February 1, 2013
___________
Introduced by M. of A. CAMARA, CASTRO -- Multi-Sponsored by -- M. of A.
BOYLAND, SALADINO -- read once and referred to the Committee on
Correction
AN ACT to amend the correction law, the criminal procedure law, the
executive law and the penal law, in relation to establishing drug
treatment alternatives to incarceration for certain offenders; and
making an appropriation therefor
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The correction law is amended by adding a new section 72-c
2 to read as follows:
3 § 72-c. Substance abuse treatment alternative programs for certain
4 offenders. 1. The commissioner, the commissioner of alcoholism and
5 substance abuse services and the director of the office of probation and
6 correctional alternatives shall identify and enter into agreements with
7 residential substance abuse, alcohol abuse, substance dependency and/or
8 alcohol dependency treatment programs to provide for the care and treat-
9 ment of eligible offenders pursuant to section 70.06 of the penal law.
10 2. The programs shall either be licensed by the office of alcoholism
11 and substance abuse services or shall be approved by the department or
12 the office of probation and correctional alternatives. Any program that
13 is not licensed by the office of alcoholism and substance abuse services
14 shall provide treatment services in accordance with all but not limited
15 to the following criteria:
16 (a) reliance upon traditional self-help techniques and programs such
17 as Alcoholics Anonymous or Narcotics Anonymous;
18 (b) notwithstanding any other provision of law, provide counseling by
19 successfully recovering substance abusers abstaining from their depend-
20 ency for at least two years;
21 (c) provide for group living so long as required for the treatment of
22 the offenders;
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07435-01-3
A. 4206 2
1 (d) provide daily counseling for at least the first ninety days;
2 (e) provide life-skills teaching; and
3 (f) provide for detoxification services and health-care.
4 3. Upon the satisfactory completion of the course of treatment, the
5 eligible offender shall have the court imposed sentence of conditional
6 discharge terminated in accordance with the provisions of section 410.90
7 of the criminal procedure law.
8 4. Offenders assigned to a program shall be sentenced as a second
9 felony offender in accordance with the provisions of subdivision two of
10 section 70.06 of the penal law and shall be committed to the custody of
11 the department if the court determines:
12 (a) that the offender absconded from the substance abuse treatment
13 alternative program;
14 (b) that the confinement of an offender in the substance abuse treat-
15 ment alternative program is no longer suitable because it endangers the
16 safety, security or order of such treatment facility; or
17 (c) that the offender violated the terms and conditions of the
18 sentence.
19 § 2. Paragraph (a) of subdivision 3 of section 390.30 of the criminal
20 procedure law, as added by chapter 14 of the laws of 1985, is amended to
21 read as follows:
22 (a) The report of the pre-sentence investigation must contain an anal-
23 ysis of as much of the information gathered in the investigation as the
24 agency that conducted the investigation deems relevant to the question
25 of sentence. Where appropriate, the report must include a treatment
26 plan including but not limited to a listing of available licensed
27 substance abuse programs by the office of alcoholism and substance abuse
28 services or a program approved by the department of corrections and
29 community supervision or the office of probation and correctional alter-
30 natives to provide for the care and treatment of offenders sentenced in
31 accordance with the provisions of subdivision two of section 70.06 of
32 the penal law. The report must also include any other [imformation]
33 information that the court directs to be included and the material
34 required by paragraph (b) of this subdivision which shall be considered
35 part of the report.
36 § 3. The executive law is amended by adding a new section 837-s to
37 read as follows:
38 § 837-s. Substance abuse treatment alternative program; special
39 provisions. 1. In counties with five hundred or less eligible offenders
40 participating in substance abuse treatment alternative programs as
41 established pursuant to section seventy-two-c of the correction law,
42 such county shall utilize the enforcement mechanism provided in this
43 section. The commissioner shall establish a unit within the department
44 of corrections and community supervision to work with the district
45 attorney of such county and the treatment programs for the purpose of
46 locating, apprehending and rearresting offenders who have absconded
47 from, or violated the terms and conditions of conditional discharge
48 during participation in a substance abuse treatment alternative program.
49 2. In counties with five hundred or more eligible offenders partic-
50 ipating in substance abuse treatment alternative programs as established
51 pursuant to section seventy-two-c of the correction law, the district
52 attorney of such county shall apply to the commissioner for funds to
53 establish a unit to work with the treatment programs for the purpose of
54 locating, apprehending and rearresting offenders who have absconded
55 from, or violated the terms and conditions of conditional discharge
56 during participation in a substance abuse treatment alternative program.
A. 4206 3
1 § 4. Subdivision 2 of section 70.06 of the penal law, as amended by
2 section 38 of chapter 7 of the laws of 2007, is amended to read as
3 follows:
4 2. Authorized sentence. (a) Except as provided in subdivision [five
5 or] six of this section, or as provided in subdivision five of section
6 70.80 of this article, when the court has found, pursuant to the
7 provisions of the criminal procedure law, that a person is a second
8 felony offender the court must impose an indeterminate sentence of
9 imprisonment. The maximum term of such sentence must be in accordance
10 with the provisions of subdivision three of this section and the minimum
11 period of imprisonment under such sentence must be in accordance with
12 subdivision four of this section. However, in cases involving a
13 conviction of a class D or E felony as defined in article two hundred
14 twenty or two hundred twenty-one of this chapter, otherwise subject to
15 sentence under this section, where the predicate offense did not subject
16 the offender to a sentence pursuant to the provisions of: (A) section
17 70.02 of this article, (B) an A-I felony offense, (C) manslaughter in
18 the second degree, vehicular manslaughter in the second degree, vehicu-
19 lar manslaughter in the first degree, and criminally negligent homicide
20 as defined in article one hundred twenty-five of this chapter, (D) rape
21 in the second degree, rape in the third degree, criminal sexual act in
22 the second degree, criminal sexual act in the third degree, attempted
23 sexual abuse in the first degree, attempted rape in the second degree
24 and attempted criminal sexual act in the second degree as defined in
25 articles one hundred ten and one hundred thirty of this chapter, and
26 where it is determined that: (i) extended institutional confinement is
27 not necessary for the protection of the public; (ii) the offender is in
28 need of treatment to recognize, modify and eliminate a substance abuse,
29 alcohol abuse, substance dependency and/or alcohol dependency; (iii) the
30 offender did not have substantial proprietary or other authoritative
31 control of an enterprise dedicated to the unlawful manufacture or sale
32 or distribution of a controlled substance or marihuana; and (iv) such
33 disposition is not inconsistent with the ends of justice, the court may
34 impose a sentence of conditional discharge pursuant to section 65.05 of
35 this title.
36 (b) In accordance with the provisions of article four hundred ten of
37 the criminal procedure law, the court may impose such a sentence on the
38 condition that the offender participate in a substance abuse treatment
39 alternative program for a specified time pursuant to section seventy-
40 two-c of the correction law.
41 (c) Upon completion of a course of treatment, the court shall termi-
42 nate the sentence in accordance with the provisions of section 410.90 of
43 the criminal procedure law. If the court determines that the offender
44 absconded from the substance abuse treatment alternative program or that
45 the sentence is no longer suitable because it endangers the safety, the
46 security or order of such treatment facility or that the offender other-
47 wise violates the terms and conditions of the sentence, the sentence may
48 be revoked. Upon revocation, the offender shall be sentenced as a second
49 felony offender pursuant to this subdivision.
50 (d) The court shall conduct an ongoing evaluation of the program. The
51 court shall undertake studies in conjunction with the office of
52 probation and correctional alternatives, the department of corrections
53 and community supervision, and the office of alcoholism and substance
54 abuse services to ensure that the programmatic objectives are met.
A. 4206 4
1 § 5. Subdivision 2 of section 70.06 of the penal law, as amended by
2 section 39 of chapter 7 of the laws of 2007, is amended to read as
3 follows:
4 2. Authorized sentence. (a) Except [as provided in subdivision five of
5 this section, or] as provided in subdivision five of section 70.80 of
6 this article, when the court has found, pursuant to the provisions of
7 the criminal procedure law, that a person is a second felony offender
8 the court must impose an indeterminate sentence of imprisonment. The
9 maximum term of such sentence must be in accordance with the provisions
10 of subdivision three of this section and the minimum period of imprison-
11 ment under such sentence must be in accordance with subdivision four of
12 this section. However, in cases involving a conviction of a class D or
13 E felony as defined in article two hundred twenty or two hundred twen-
14 ty-one of this chapter, otherwise subject to sentence under this
15 section, where the predicate offense did not subject the offender to a
16 sentence pursuant to the provisions of: (A) section 70.02 of this arti-
17 cle, (B) an A-I felony offense, (C) manslaughter in the second degree,
18 vehicular manslaughter in the second degree, vehicular manslaughter in
19 the first degree, and criminally negligent homicide as defined in arti-
20 cle one hundred twenty-five of this chapter, (D) rape in the second
21 degree, rape in the third degree, criminal sexual act in the second
22 degree, criminal sexual act in the third degree, attempted sexual abuse
23 in the first degree, attempted rape in the second degree and attempted
24 criminal sexual act in the second degree as defined in articles one
25 hundred ten and one hundred thirty of this chapter, and where it is
26 determined that: (i) extended institutional confinement is not necessary
27 for the protection of the public; (ii) the offender is in need of treat-
28 ment to recognize, modify and eliminate a substance abuse, alcohol
29 abuse, substance dependency and/or alcohol dependency; (iii) the offen-
30 der did not have substantial proprietary or other authoritative control
31 of an enterprise dedicated to the unlawful manufacture or sale or
32 distribution of a controlled substance or marihuana; and (iv) such
33 disposition is not inconsistent with the ends of justice, the court may
34 impose a sentence of conditional discharge pursuant to section 65.05 of
35 this title.
36 (b) In accordance with the provisions of article four hundred ten of
37 the criminal procedure law, the court may impose such a sentence on the
38 condition that the offender participate in a substance abuse treatment
39 alternative program for a specified time pursuant to section seventy-
40 two-c of the correction law.
41 (c) Upon completion of a course of treatment, the court shall termi-
42 nate the sentence in accordance with the provisions of section 410.90 of
43 the criminal procedure law. If the court determines that the offender
44 absconded from the substance abuse treatment alternative program or that
45 the sentence is no longer suitable because it endangers the safety, the
46 security or order of such treatment facility or that the offender other-
47 wise violates the terms and conditions of the sentence, the sentence may
48 be revoked. Upon revocation, the offender shall be sentenced as a second
49 felony offender pursuant to this subdivision.
50 (d) The court shall conduct an ongoing evaluation of the program. The
51 court shall undertake studies in conjunction with the office of
52 probation and correctional alternatives, the department of corrections
53 and community supervision, and the office of alcoholism and substance
54 abuse services to ensure that the programmatic objectives are met.
55 § 6. The penal law is amended by adding a new section 220.80 to read
56 as follows:
A. 4206 5
1 § 220.80 Operating an illegal drug enterprise.
2 A person is guilty of operating an illegal drug enterprise when he or
3 she knowingly and unlawfully has substantial proprietary or other
4 authoritative control of an enterprise dedicated to the unlawful manu-
5 facture, sale or distribution of a controlled substance or marihuana.
6 Operating an illegal drug enterprise is a class C felony.
7 § 7. The sum of twenty-one million dollars ($21,000,000), or so much
8 thereof as may be necessary, is hereby appropriated to the division of
9 criminal justice services, in consultation and coordination with the
10 commissioner of alcoholism and substance abuse services, the commission-
11 er of corrections and community supervision, and the director of the
12 office of probation and correctional alternatives, out of any moneys in
13 the state treasury in the general fund to the credit of the state
14 purposes account not otherwise appropriated, for carrying out the
15 provisions of this act. Such sum shall be payable on the audit and
16 warrant of the state comptroller on vouchers certified or approved by
17 the commissioner of the division of criminal justice services, or his or
18 her duly designated representative in the manner provided by law. No
19 expenditure shall be made from this appropriation until a certificate of
20 approval of availability shall have been issued by the director of the
21 budget and filed with the state comptroller and a copy filed with the
22 chairperson of the senate finance committee and the chairperson of the
23 assembly ways and means committee. Such certificate may be amended from
24 time to time by the director of the budget and a copy of each such
25 amendment shall be filed with the state comptroller, the chairperson of
26 the senate finance committee and the chairperson of the assembly ways
27 and means committee.
28 § 8. This act shall take effect on the first of November next succeed-
29 ing the date on which it shall have become a law; provided that the
30 amendments to subdivision 2 of section 70.06 of the penal law made by
31 section four of this act shall be subject to the expiration and rever-
32 sion of such subdivision pursuant to section 74 of chapter 3 of the laws
33 of 1995, as amended, when upon such date the provisions of section five
34 of this act shall take effect.
