STATE OF NEW YORK
________________________________________________________________________
7795
IN SENATE
February 26, 2018
___________
Introduced by Sen. BAILEY -- read twice and ordered printed, and when
printed to be committed to the Committee on Alcoholism and Drug Abuse
AN ACT to amend the criminal procedure law, in relation to a judicial
diversion program for certain felony offenders
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph of subdivision 1 and subdivision 2 of
2 section 216.00 of the criminal procedure law, the opening paragraph of
3 subdivision 1 as amended by chapter 90 of the laws of 2014 and subdivi-
4 sion 2 as added by section 4 of part AAA of chapter 56 of the laws of
5 2009, are amended to read as follows:
6 "Eligible defendant" means any person who stands charged in an indict-
7 ment or a superior court information with a class B, C, D or E felony
8 offense defined in article one hundred seventy-nine, two hundred twenty
9 or two hundred twenty-one of the penal law, an offense defined in
10 sections 105.10 and 105.13 of the penal law provided that the underlying
11 crime for the conspiracy charge is a class B, C, D or E felony offense
12 defined in article one hundred seventy-nine, two hundred twenty or two
13 hundred twenty-one of the penal law, auto stripping in the second degree
14 as defined in section 165.10 of the penal law, auto stripping in the
15 first degree as defined in section 165.11 of the penal law, identity
16 theft in the second degree as defined in section 190.79 of the penal
17 law, identity theft in the first degree as defined in section 190.80 of
18 the penal law, or any other specified offense as defined in subdivision
19 [four] five of section 410.91 of this chapter, provided, however, a
20 defendant is not an "eligible defendant" if he or she:
21 2. "Alcohol and substance [abuse] use evaluation" means a written
22 assessment and report by a court-approved entity or licensed health care
23 professional experienced in the treatment of alcohol and substance
24 [abuse] use disorder, or by an addiction and substance abuse counselor
25 credentialed by the office of alcoholism and substance abuse services
26 pursuant to section 19.07 of the mental hygiene law, which shall
27 include:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08105-02-7
S. 7795 2
1 (a) an evaluation as to whether the defendant has a history of alcohol
2 or substance [abuse or alcohol or substance dependence] use disorder, as
3 such terms are defined in the diagnostic and statistical manual of
4 mental disorders, [fourth] fifth edition, and a co-occurring mental
5 disorder or mental illness and the relationship between such [abuse or
6 dependence] use and mental disorder or mental illness, if any;
7 (b) a recommendation as to whether the defendant's alcohol or
8 substance [abuse or dependence] use, if any, could be effectively
9 addressed by judicial diversion in accordance with this article;
10 (c) a recommendation as to the treatment modality, level of care and
11 length of any proposed treatment to effectively address the defendant's
12 alcohol or substance [abuse or dependence] use and any co-occurring
13 mental disorder or illness; and
14 (d) any other information, factor, circumstance, or recommendation
15 deemed relevant by the assessing entity or specifically requested by the
16 court.
17 § 2. The opening paragraph of subdivision 1 of section 216.00 of the
18 criminal procedure law, as added by section 4 of part AAA of chapter 56
19 of the laws of 2009, is amended to read as follows:
20 "Eligible defendant" means any person who stands charged in an indict-
21 ment or a superior court information with a class B, C, D or E felony
22 offense defined in article two hundred twenty or two hundred twenty-one
23 of the penal law, an offense defined in sections 105.10 and 105.13 of
24 the penal law provided that the underlying crime for the conspiracy
25 charge is a class B, C, D or E felony offense defined in article two
26 hundred twenty or two hundred twenty-one of the penal law, auto strip-
27 ping in the second degree as defined in section 165.10 of the penal law,
28 auto stripping in the first degree as defined in section 165.11 of the
29 penal law, identity theft in the second degree as defined in section
30 190.79 of the penal law, identity theft in the first degree as defined
31 in section 190.80 of the penal law, or any other specified offense as
32 defined in subdivision [four] five of section 410.91 of this chapter,
33 provided, however, a defendant is not an "eligible defendant" if he or
34 she:
35 § 3. Section 216.05 of the criminal procedure law, as added by section
36 4 of part AAA of chapter 56 of the laws of 2009, subdivision 5 as
37 amended by chapter 67 of the laws of 2016, subdivision 8 as amended by
38 chapter 315 of the laws of 2016, and paragraph (a) of subdivision 9 as
39 amended by chapter 258 of the laws of 2015, is amended to read as
40 follows:
41 § 216.05 Judicial diversion program; court procedures.
42 1. At any time after the arraignment of an eligible defendant, but
43 prior to the entry of a plea of guilty or the commencement of trial, the
44 court at the request of the eligible defendant, may order an alcohol and
45 substance [abuse] use evaluation. An eligible defendant may decline to
46 participate in such an evaluation at any time. The defendant shall
47 provide a written authorization, in compliance with the requirements of
48 any applicable state or federal laws, rules or regulations authorizing
49 disclosure of the results of the assessment to the defendant's attorney,
50 the prosecutor, the local probation department, the court, authorized
51 court personnel and other individuals specified in such authorization
52 for the sole purpose of determining whether the defendant should be
53 offered judicial diversion for treatment for substance [abuse or depend-
54 ence] use, alcohol [abuse or dependence] use and any co-occurring mental
55 disorder or mental illness.
S. 7795 3
1 2. Upon receipt of the completed alcohol and substance [abuse] use
2 evaluation report, the court shall provide a copy of the report to the
3 eligible defendant and the prosecutor.
4 3. (a) Upon receipt of the evaluation report either party may request
5 a hearing on the issue of whether the eligible defendant should be
6 offered alcohol or substance [abuse] use treatment pursuant to this
7 article. At such a proceeding, which shall be held as soon as practica-
8 ble so as to facilitate early intervention in the event that the defend-
9 ant is found to need alcohol or substance [abuse] use treatment, the
10 court may consider oral and written arguments, may take testimony from
11 witnesses offered by either party, and may consider any relevant
12 evidence including, but not limited to, evidence that:
13 (i) the defendant had within the preceding ten years (excluding any
14 time during which the offender was incarcerated for any reason between
15 the time of the acts that led to the youthful offender adjudication and
16 the time of commission of the present offense) been adjudicated a youth-
17 ful offender for: (A) a violent felony offense as defined in section
18 70.02 of the penal law; or (B) any offense for which a merit time allow-
19 ance is not available pursuant to subparagraph (ii) of paragraph (d) of
20 subdivision one of section eight hundred three of the correction law;
21 and
22 (ii) in the case of a felony offense defined in subdivision [four]
23 five of section 410.91 of this chapter, or section 165.09, 165.10,
24 190.79 or 190.80 of the penal law, any statement of or submitted by the
25 victim, as defined in paragraph (a) of subdivision two of section 380.50
26 of this chapter.
27 (b) Upon completion of such a proceeding, the court shall consider and
28 make findings of fact with respect to whether:
29 (i) the defendant is an eligible defendant as defined in subdivision
30 one of section 216.00 of this article;
31 (ii) the defendant has a history of alcohol or substance [abuse or
32 dependence] use;
33 (iii) such alcohol or substance [abuse or dependence] use is a
34 contributing factor to the defendant's criminal behavior;
35 (iv) the defendant's participation in judicial diversion could effec-
36 tively address such [abuse or dependence] use; and
37 (v) institutional confinement of the defendant is or may not be neces-
38 sary for the protection of the public.
39 4. When an authorized court determines, pursuant to paragraph (b) of
40 subdivision three of this section, that an eligible defendant should be
41 offered alcohol or substance [abuse] use treatment, or when the parties
42 and the court agree to an eligible defendant's participation in alcohol
43 or substance [abuse] use treatment, an eligible defendant may be allowed
44 to participate in the judicial diversion program offered by this arti-
45 cle. Prior to the court's issuing an order granting judicial diversion,
46 the eligible defendant shall be required to enter a plea of guilty to
47 the charge or charges; provided, however, that no such guilty plea shall
48 be required when:
49 (a) the people and the court consent to the entry of such an order
50 without a plea of guilty; or
51 (b) based on a finding of exceptional circumstances, the court deter-
52 mines that a plea of guilty shall not be required. For purposes of this
53 subdivision, exceptional circumstances exist when, regardless of the
54 ultimate disposition of the case, the entry of a plea of guilty is like-
55 ly to result in severe collateral consequences.
S. 7795 4
1 5. The defendant shall agree on the record or in writing to abide by
2 the release conditions set by the court, which, shall include: partic-
3 ipation in a specified period of alcohol or substance [abuse] use treat-
4 ment at a specified program or programs identified by the court, which
5 may include periods of detoxification, residential or outpatient treat-
6 ment, or both, as determined after taking into account the views of the
7 health care professional who conducted the alcohol and substance [abuse]
8 use evaluation and any health care professionals responsible for provid-
9 ing such treatment or monitoring the defendant's progress in such treat-
10 ment; and may include: (i) periodic court appearances, which may include
11 periodic urinalysis; (ii) a requirement that the defendant refrain from
12 engaging in criminal behaviors; (iii) if the defendant needs treatment
13 for opioid [abuse or dependence] use, that he or she may participate in
14 and receive medically prescribed drug treatments under the care of a
15 health care professional licensed or certified under title eight of the
16 education law, acting within his or her lawful scope of practice,
17 provided that no court shall require the use of any specified type or
18 brand of drug during the course of medically prescribed drug treatments.
19 6. Upon an eligible defendant's agreement to abide by the conditions
20 set by the court, the court shall issue a securing order providing for
21 bail or release on the defendant's own recognizance and conditioning any
22 release upon the agreed upon conditions. The period of alcohol or
23 substance [abuse] use treatment shall begin as specified by the court
24 and as soon as practicable after the defendant's release, taking into
25 account the availability of treatment, so as to facilitate early inter-
26 vention with respect to the defendant's abuse or condition and the
27 effectiveness of the treatment program. In the event that a treatment
28 program is not immediately available or becomes unavailable during the
29 course of the defendant's participation in the judicial diversion
30 program, the court may release the defendant pursuant to the securing
31 order.
32 7. When participating in judicial diversion treatment pursuant to this
33 article, any resident of this state who is covered under a private
34 health insurance policy or contract issued for delivery in this state
35 pursuant to article thirty-two, forty-three or forty-seven of the insur-
36 ance law or article forty-four of the public health law, or who is
37 covered by a self-funded plan which provides coverage for the diagnosis
38 and treatment of chemical abuse and chemical dependence however defined
39 in such policy; shall first seek reimbursement for such treatment in
40 accordance with the provisions of such policy or contract.
41 8. During the period of a defendant's participation in the judicial
42 diversion program, the court shall retain jurisdiction of the defendant,
43 provided, however, that the court may allow such defendant to (i) reside
44 in another jurisdiction, or (ii) participate in alcohol and substance
45 [abuse] use treatment and other programs in the jurisdiction where the
46 defendant resides or in any other jurisdiction, while participating in a
47 judicial diversion program under conditions set by the court and agreed
48 to by the defendant pursuant to subdivisions five and six of this
49 section. The court may require the defendant to appear in court at any
50 time to enable the court to monitor the defendant's progress in alcohol
51 or substance [abuse] use treatment. The court shall provide notice,
52 reasonable under the circumstances, to the people, the treatment provid-
53 er, the defendant and the defendant's counsel whenever it orders or
54 otherwise requires the appearance of the defendant in court. Failure to
55 appear as required without reasonable cause therefor shall constitute a
56 violation of the conditions of the court's agreement with the defendant.
S. 7795 5
1 9. (a) If at any time during the defendant's participation in the
2 judicial diversion program, the court has reasonable grounds to believe
3 that the defendant has violated a release condition or has failed to
4 appear before the court as requested, the court shall direct the defend-
5 ant to appear or issue a bench warrant to a police officer or an appro-
6 priate peace officer directing him or her to take the defendant into
7 custody and bring the defendant before the court without unnecessary
8 delay; provided, however, that under no circumstances shall a defendant
9 who requires treatment for opioid [abuse or dependence] use be deemed to
10 have violated a release condition on the basis of his or her partic-
11 ipation in medically prescribed drug treatments under the care of a
12 health care professional licensed or certified under title eight of the
13 education law, acting within his or her lawful scope of practice. The
14 provisions of subdivision one of section 530.60 of this chapter relating
15 to revocation of recognizance or bail shall apply to such proceedings
16 under this subdivision.
17 (b) In determining whether a defendant violated a condition of his or
18 her release under the judicial diversion program, the court may conduct
19 a summary hearing consistent with due process and sufficient to satisfy
20 the court that the defendant has, in fact, violated the condition.
21 (c) If the court determines that the defendant has violated a condi-
22 tion of his or her release under the judicial diversion program, the
23 court may modify the conditions thereof, reconsider the order of recog-
24 nizance or bail pursuant to subdivision two of section 510.30 of this
25 chapter, or terminate the defendant's participation in the judicial
26 diversion program; and when applicable proceed with the defendant's
27 sentencing in accordance with the agreement. Notwithstanding any
28 provision of law to the contrary, the court may impose any sentence
29 authorized for the crime of conviction in accordance with the plea
30 agreement, or any lesser sentence authorized to be imposed on a felony
31 drug offender pursuant to paragraph (b) or (c) of subdivision two of
32 section 70.70 of the penal law taking into account the length of time
33 the defendant spent in residential treatment and how best to continue
34 treatment while the defendant is serving that sentence. In determining
35 what action to take for a violation of a release condition, the court
36 shall consider all relevant circumstances, including the views of the
37 prosecutor, the defense and the alcohol or substance [abuse] use treat-
38 ment provider, and the extent to which persons who ultimately success-
39 fully complete a drug treatment regimen sometimes relapse by not
40 abstaining from alcohol or substance [abuse] use or by failing to comply
41 fully with all requirements imposed by a treatment program. The court
42 shall also consider using a system of graduated and appropriate
43 responses or sanctions designed to address such inappropriate behaviors,
44 protect public safety and facilitate, where possible, successful
45 completion of the alcohol or substance [abuse] use treatment program.
46 (d) Nothing in this subdivision shall be construed as preventing a
47 court from terminating a defendant's participation in the judicial
48 diversion program for violating a release condition when such a termi-
49 nation is necessary to preserve public safety. Nor shall anything in
50 this subdivision be construed as precluding the prosecution of a defend-
51 ant for the commission of a different offense while participating in the
52 judicial diversion program.
53 (e) A defendant may at any time advise the court that he or she wishes
54 to terminate participation in the judicial diversion program, at which
55 time the court shall proceed with the case and, where applicable, shall
56 impose sentence in accordance with the plea agreement. Notwithstanding
S. 7795 6
1 any provision of law to the contrary, the court may impose any sentence
2 authorized for the crime of conviction in accordance with the plea
3 agreement, or any lesser sentence authorized to be imposed on a felony
4 drug offender pursuant to paragraph (b) or (c) of subdivision two of
5 section 70.70 of the penal law taking into account the length of time
6 the defendant spent in residential treatment and how best to continue
7 treatment while the defendant is serving that sentence.
8 10. Upon the court's determination that the defendant has successfully
9 completed the required period of alcohol or substance [abuse] use treat-
10 ment and has otherwise satisfied the conditions required for successful
11 completion of the judicial diversion program, the court shall comply
12 with the terms and conditions it set for final disposition when it
13 accepted the defendant's agreement to participate in the judicial diver-
14 sion program. Such disposition may include, but is not limited to: (a)
15 requiring the defendant to undergo a period of interim probation super-
16 vision and, upon the defendant's successful completion of the interim
17 probation supervision term, notwithstanding the provision of any other
18 law, permitting the defendant to withdraw his or her guilty plea and
19 dismissing the indictment; or (b) requiring the defendant to undergo a
20 period of interim probation supervision and, upon successful completion
21 of the interim probation supervision term, notwithstanding the provision
22 of any other law, permitting the defendant to withdraw his or her guilty
23 plea, enter a guilty plea to a misdemeanor offense and sentencing the
24 defendant as promised in the plea agreement, which may include a period
25 of probation supervision pursuant to section 65.00 of the penal law; or
26 (c) allowing the defendant to withdraw his or her guilty plea and
27 dismissing the indictment.
28 11. Nothing in this article shall be construed as restricting or
29 prohibiting courts or district attorneys from using other lawful proce-
30 dures or models for placing appropriate persons into alcohol or
31 substance [abuse] use treatment.
32 § 4. This act shall take effect immediately; provided, that the amend-
33 ments to the opening paragraph of subdivision 1 of section 216.00 of the
34 criminal procedure law made by section one of this act shall be subject
35 to the expiration and reversion of such paragraph pursuant to section 12
36 of chapter 90 of the laws of 2014, as amended, when upon such date the
37 provisions of section two of this act shall take effect.
