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S07228 Summary:

S07228 Actions:

S07228 Committee Votes:

S07228 Floor Votes:

S07228 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7228
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                      June 7, 2021
                                       ___________
 
        Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Rules
 
        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]  twenty-two  of the penal law, an offense
    10  defined in sections 105.10 and 105.13 of the penal law provided that the
    11  underlying crime for the conspiracy charge is a class B, C, D or E felo-
    12  ny offense defined in article  one  hundred  seventy-nine,  two  hundred
    13  twenty or two hundred twenty-two of the penal law, auto stripping in the
    14  second degree as defined in section 165.10 of the penal law, auto strip-
    15  ping  in the first degree as defined in section 165.11 of the penal law,
    16  identity theft in the second degree as defined in section 190.79 of  the
    17  penal  law,  identity  theft  in  the first degree as defined in section
    18  190.80 of the penal law, or any other specified offense  as  defined  in
    19  subdivision  [four]  five  of  section 410.91 of this chapter, provided,
    20  however, a 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]
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04697-04-1
        S. 7228                             2
 
     1  addiction services and supports pursuant to section 19.07 of the  mental
     2  hygiene law, which shall include:
     3    (a) an evaluation as to whether the defendant has a history of alcohol
     4  or substance [abuse or alcohol or substance dependence] use disorder, as
     5  such  terms  are  defined  in  the  diagnostic and statistical manual of
     6  mental disorders, [fourth] fifth  edition,  and  a  co-occurring  mental
     7  disorder  or  mental illness and the relationship between such [abuse or
     8  dependence] use and mental disorder or mental illness, if any;
     9    (b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
    10  substance  [abuse  or  dependence]  use,  if  any,  could be effectively
    11  addressed by judicial diversion in accordance with this article;
    12    (c) a recommendation as to the treatment modality, level of  care  and
    13  length  of any proposed treatment to effectively address the defendant's
    14  alcohol or substance [abuse or  dependence]  use  and  any  co-occurring
    15  mental disorder or illness; and
    16    (d)  any  other  information,  factor, circumstance, or recommendation
    17  deemed relevant by the assessing entity or specifically requested by the
    18  court.
    19    § 2. The opening paragraph of subdivision 1 of section 216.00  of  the
    20  criminal  procedure law, as added by section 4 of part AAA of chapter 56
    21  of the laws of 2009, is amended to read as follows:
    22    "Eligible defendant" means any person who stands charged in an indict-
    23  ment or a superior court information with a class B, C, D  or  E  felony
    24  offense  defined  in  article two hundred twenty or two hundred [twenty-
    25  one] twenty-two of the penal law, an offense defined in sections  105.10
    26  and  105.13  of the penal law provided that the underlying crime for the
    27  conspiracy charge is a class B, C, D or  E  felony  offense  defined  in
    28  article  two  hundred twenty or two hundred twenty-two of the penal law,
    29  auto stripping in the second degree as defined in section 165.10 of  the
    30  penal  law,  auto  stripping  in  the first degree as defined in section
    31  165.11 of the penal law, identity theft in the second degree as  defined
    32  in  section  190.79 of the penal law, identity theft in the first degree
    33  as defined in section 190.80 of the penal law, or  any  other  specified
    34  offense  as defined in subdivision [four] five of section 410.91 of this
    35  chapter, provided, however, a defendant is not an  "eligible  defendant"
    36  if he or she:
    37    § 3. Section 216.05 of the criminal procedure law, as added by section
    38  4  of  part  AAA  of  chapter  56  of the laws of 2009, subdivision 5 as
    39  amended by chapter 67 of the laws of 2016, subdivision 8 as  amended  by
    40  chapter  315  of the laws of 2016, and paragraph (a) of subdivision 9 as
    41  amended by section 21 of part JJJ of chapter 59 of the laws of 2019,  is
    42  amended to read as follows:
    43  § 216.05 Judicial diversion program; court procedures.
    44    1.  At  any  time  after the arraignment of an eligible defendant, but
    45  prior to the entry of a plea of guilty or the commencement of trial, the
    46  court at the request of the eligible defendant, may order an alcohol and
    47  substance [abuse] use evaluation. An eligible defendant may  decline  to
    48  participate  in  such  an  evaluation  at  any time. The defendant shall
    49  provide a written authorization, in compliance with the requirements  of
    50  any  applicable  state or federal laws, rules or regulations authorizing
    51  disclosure of the results of the assessment to the defendant's attorney,
    52  the prosecutor, the local probation department,  the  court,  authorized
    53  court  personnel  and  other individuals specified in such authorization
    54  for the sole purpose of determining  whether  the  defendant  should  be
    55  offered judicial diversion for treatment for substance [abuse or depend-
        S. 7228                             3

     1  ence] use, alcohol [abuse or dependence] use and any co-occurring mental
     2  disorder or mental illness.
     3    2.  Upon  receipt  of  the completed alcohol and substance [abuse] use
     4  evaluation report, the court shall provide a copy of the report  to  the
     5  eligible defendant and the prosecutor.
     6    3.  (a) Upon receipt of the evaluation report either party may request
     7  a hearing on the issue of  whether  the  eligible  defendant  should  be
     8  offered  alcohol  or  substance  [abuse]  use treatment pursuant to this
     9  article. At such a proceeding, which shall be held as soon as  practica-
    10  ble so as to facilitate early intervention in the event that the defend-
    11  ant  is  found  to  need alcohol or substance [abuse] use treatment, the
    12  court may consider oral and written arguments, may take  testimony  from
    13  witnesses  offered  by  either  party,  and  may  consider  any relevant
    14  evidence including, but not limited to, evidence that:
    15    (i) the defendant had within the preceding ten  years  (excluding  any
    16  time  during  which the offender was incarcerated for any reason between
    17  the time of the acts that led to the youthful offender adjudication  and
    18  the time of commission of the present offense) been adjudicated a youth-
    19  ful  offender  for:  (A)  a violent felony offense as defined in section
    20  70.02 of the penal law; or (B) any offense for which a merit time allow-
    21  ance is not available pursuant to subparagraph (ii) of paragraph (d)  of
    22  subdivision  one  of  section eight hundred three of the correction law;
    23  and
    24    (ii) in the case of a felony offense  defined  in  subdivision  [four]
    25  five  of  section  410.91  of  this  chapter, or section 165.10, 165.11,
    26  190.79 or 190.80 of the penal law, any statement of or submitted by  the
    27  victim, as defined in paragraph (a) of subdivision two of section 380.50
    28  of this chapter.
    29    (b) Upon completion of such a proceeding, the court shall consider and
    30  make findings of fact with respect to whether:
    31    (i)  the  defendant is an eligible defendant as defined in subdivision
    32  one of section 216.00 of this article;
    33    (ii) the defendant has a history of alcohol  or  substance  [abuse  or
    34  dependence] use;
    35    (iii)  such  alcohol  or  substance  [abuse  or  dependence]  use is a
    36  contributing factor to the defendant's criminal behavior;
    37    (iv) the defendant's participation in judicial diversion could  effec-
    38  tively address such [abuse or dependence] use; and
    39    (v) institutional confinement of the defendant is or may not be neces-
    40  sary for the protection of the public.
    41    4.  When  an authorized court determines, pursuant to paragraph (b) of
    42  subdivision three of this section, that an eligible defendant should  be
    43  offered  alcohol or substance [abuse] use treatment, or when the parties
    44  and the court agree to an eligible defendant's participation in  alcohol
    45  or substance [abuse] use treatment, an eligible defendant may be allowed
    46  to  participate  in the judicial diversion program offered by this arti-
    47  cle.  Prior to the court's issuing an order granting judicial diversion,
    48  the eligible defendant shall be required to enter a plea  of  guilty  to
    49  the charge or charges; provided, however, that no such guilty plea shall
    50  be required when:
    51    (a)  the  people  and  the court consent to the entry of such an order
    52  without a plea of guilty; or
    53    (b) based on a finding of exceptional circumstances, the court  deter-
    54  mines  that a plea of guilty shall not be required. For purposes of this
    55  subdivision, exceptional circumstances exist  when,  regardless  of  the
        S. 7228                             4
 
     1  ultimate disposition of the case, the entry of a plea of guilty is like-
     2  ly to result in severe collateral consequences.
     3    5.  The  defendant shall agree on the record or in writing to abide by
     4  the release conditions set by the court, which, shall  include:  partic-
     5  ipation in a specified period of alcohol or substance [abuse] use treat-
     6  ment  at  a specified program or programs identified by the court, which
     7  may include periods of detoxification, residential or outpatient  treat-
     8  ment,  or both, as determined after taking into account the views of the
     9  health care professional who conducted the alcohol and substance [abuse]
    10  use evaluation and any health care professionals responsible for provid-
    11  ing such treatment or monitoring the defendant's progress in such treat-
    12  ment; and may include: (i) periodic court appearances, which may include
    13  periodic urinalysis; (ii) a requirement that the defendant refrain  from
    14  engaging  in  criminal behaviors; (iii) if the defendant needs treatment
    15  for opioid [abuse or dependence] use, that he or she may participate  in
    16  and  receive  medically  prescribed  drug treatments under the care of a
    17  health care professional licensed or certified under title eight of  the
    18  education  law,  acting  within  his  or  her  lawful scope of practice,
    19  provided that no court shall require the use of any  specified  type  or
    20  brand of drug during the course of medically prescribed drug treatments.
    21    6.  Upon  an eligible defendant's agreement to abide by the conditions
    22  set by the court, the court shall issue a securing order  providing  for
    23  bail or release on the defendant's own recognizance and conditioning any
    24  release  upon  the  agreed  upon  conditions.  The  period of alcohol or
    25  substance [abuse] use treatment shall begin as specified  by  the  court
    26  and  as  soon  as practicable after the defendant's release, taking into
    27  account the availability of treatment, so as to facilitate early  inter-
    28  vention  with respect to the defendant's [abuse] substance use or condi-
    29  tion and the effectiveness of the treatment program. In the event that a
    30  treatment program is not immediately available  or  becomes  unavailable
    31  during  the  course  of  the  defendant's  participation in the judicial
    32  diversion program, the court may release the defendant pursuant  to  the
    33  securing order.
    34    7. When participating in judicial diversion treatment pursuant to this
    35  article,  any  resident  of  this  state  who is covered under a private
    36  health insurance policy or contract issued for delivery  in  this  state
    37  pursuant to article thirty-two, forty-three or forty-seven of the insur-
    38  ance  law  or  article  forty-four  of  the public health law, or who is
    39  covered by a self-funded plan which provides coverage for the  diagnosis
    40  and  treatment of chemical abuse and chemical dependence however defined
    41  in such policy; shall first seek reimbursement  for  such  treatment  in
    42  accordance with the provisions of such policy or contract.
    43    8.  During  the  period of a defendant's participation in the judicial
    44  diversion program, the court shall retain jurisdiction of the defendant,
    45  provided, however, that the court may allow such defendant to (i) reside
    46  in another jurisdiction, or (ii) participate in  alcohol  and  substance
    47  [abuse]  use  treatment and other programs in the jurisdiction where the
    48  defendant resides or in any other jurisdiction, while participating in a
    49  judicial diversion program under conditions set by the court and  agreed
    50  to  by  the  defendant  pursuant  to  subdivisions  five and six of this
    51  section. The court may require the defendant to appear in court  at  any
    52  time  to enable the court to monitor the defendant's progress in alcohol
    53  or substance [abuse] use treatment.  The  court  shall  provide  notice,
    54  reasonable under the circumstances, to the people, the treatment provid-
    55  er,  the  defendant  and  the  defendant's counsel whenever it orders or
    56  otherwise requires the appearance of the defendant in court. Failure  to
        S. 7228                             5
 
     1  appear  as required without reasonable cause therefor shall constitute a
     2  violation of the conditions of the court's agreement with the defendant.
     3    9.  (a)  If  at  any  time during the defendant's participation in the
     4  judicial diversion program, the court has reasonable grounds to  believe
     5  that  the  defendant  has  violated  a release condition in an important
     6  respect or has willfully failed to appear before the court as requested,
     7  the court except as provided in subdivision two  of  section  510.50  of
     8  this  chapter  regarding a failure to appear, shall direct the defendant
     9  to appear or issue a bench warrant to a police officer or an appropriate
    10  peace officer directing him or her to take the  defendant  into  custody
    11  and  bring  the  defendant  before  the court without unnecessary delay;
    12  provided, however, that under no circumstances  shall  a  defendant  who
    13  requires  treatment  for  opioid  [abuse or dependence] use be deemed to
    14  have violated a release condition on the basis of  his  or  her  partic-
    15  ipation  in  medically  prescribed  drug  treatments under the care of a
    16  health care professional licensed or certified under title eight of  the
    17  education  law,  acting  within his or her lawful scope of practice. The
    18  relevant provisions of section 530.60 of this chapter relating to  issu-
    19  ance  of  securing  orders  shall  apply  to such proceedings under this
    20  subdivision.
    21    (b) In determining whether a defendant violated a condition of his  or
    22  her  release under the judicial diversion program, the court may conduct
    23  a summary hearing consistent with due process and sufficient to  satisfy
    24  the court that the defendant has, in fact, violated the condition.
    25    (c)  If  the court determines that the defendant has violated a condi-
    26  tion of his or her release under the  judicial  diversion  program,  the
    27  court  may modify the conditions thereof, reconsider the order of recog-
    28  nizance or bail pursuant to subdivision two of section  510.30  of  this
    29  chapter,  or  terminate  the  defendant's  participation in the judicial
    30  diversion program; and when  applicable  proceed  with  the  defendant's
    31  sentencing   in  accordance  with  the  agreement.  Notwithstanding  any
    32  provision of law to the contrary, the  court  may  impose  any  sentence
    33  authorized  for  the  crime  of  conviction  in accordance with the plea
    34  agreement, or any lesser sentence authorized to be imposed on  a  felony
    35  drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
    36  section 70.70 of the penal law taking into account the  length  of  time
    37  the  defendant  spent  in residential treatment and how best to continue
    38  treatment while the defendant is serving that sentence.  In  determining
    39  what  action  to  take for a violation of a release condition, the court
    40  shall consider all relevant circumstances, including the  views  of  the
    41  prosecutor,  the defense and the alcohol or substance [abuse] use treat-
    42  ment provider, and the extent to which persons who  ultimately  success-
    43  fully  complete  a  drug  treatment  regimen  sometimes  relapse  by not
    44  abstaining from alcohol or substance [abuse] use or by failing to comply
    45  fully with all requirements imposed by a treatment  program.  The  court
    46  shall  also  consider  using  a  system  of  graduated  and  appropriate
    47  responses or sanctions designed to address such inappropriate behaviors,
    48  protect  public  safety  and  facilitate,  where  possible,   successful
    49  completion of the alcohol or substance [abuse] use treatment program.
    50    (d)  Nothing  in  this  subdivision shall be construed as preventing a
    51  court from terminating  a  defendant's  participation  in  the  judicial
    52  diversion  program  for violating a release condition when such a termi-
    53  nation is necessary to preserve public safety.  Nor  shall  anything  in
    54  this subdivision be construed as precluding the prosecution of a defend-
    55  ant for the commission of a different offense while participating in the
    56  judicial diversion program.
        S. 7228                             6

     1    (e) A defendant may at any time advise the court that he or she wishes
     2  to  terminate  participation in the judicial diversion program, at which
     3  time the court shall proceed with the case and, where applicable,  shall
     4  impose  sentence  in accordance with the plea agreement. Notwithstanding
     5  any  provision of law to the contrary, the court may impose any sentence
     6  authorized for the crime of  conviction  in  accordance  with  the  plea
     7  agreement,  or  any lesser sentence authorized to be imposed on a felony
     8  drug offender pursuant to paragraph (b) or (c)  of  subdivision  two  of
     9  section  70.70  of  the penal law taking into account the length of time
    10  the defendant spent in residential treatment and how  best  to  continue
    11  treatment while the defendant is serving that sentence.
    12    10. Upon the court's determination that the defendant has successfully
    13  completed the required period of alcohol or substance [abuse] use treat-
    14  ment  and has otherwise satisfied the conditions required for successful
    15  completion of the judicial diversion program,  the  court  shall  comply
    16  with  the  terms  and  conditions  it  set for final disposition when it
    17  accepted the defendant's agreement to participate in the judicial diver-
    18  sion program. Such disposition may include, but is not limited to:   (a)
    19  requiring  the defendant to undergo a period of interim probation super-
    20  vision and, upon the defendant's successful completion  of  the  interim
    21  probation  supervision  term, notwithstanding the provision of any other
    22  law, permitting the defendant to withdraw his or  her  guilty  plea  and
    23  dismissing  the  indictment; or (b) requiring the defendant to undergo a
    24  period of interim probation supervision and, upon successful  completion
    25  of the interim probation supervision term, notwithstanding the provision
    26  of any other law, permitting the defendant to withdraw his or her guilty
    27  plea,  enter  a  guilty plea to a misdemeanor offense and sentencing the
    28  defendant as promised in the plea agreement, which may include a  period
    29  of  probation supervision pursuant to section 65.00 of the penal law; or
    30  (c) allowing the defendant to  withdraw  his  or  her  guilty  plea  and
    31  dismissing the indictment.
    32    11.  Nothing  in  this  article  shall  be construed as restricting or
    33  prohibiting courts or district attorneys from using other lawful  proce-
    34  dures  or  models  for  placing  appropriate  persons  into  alcohol  or
    35  substance [abuse] use treatment.
    36    § 4. This act shall take effect immediately; provided, that the amend-
    37  ments to the opening paragraph of subdivision 1 of section 216.00 of the
    38  criminal procedure law made by section one of this act shall be  subject
    39  to the expiration and reversion of such paragraph pursuant to section 12
    40  of  chapter  90 of the laws of 2014, as amended, when upon such date the
    41  provisions of section two of this act shall take effect.