Amd §§510.10, 530.20, 530.40, 510.30 & 140.20, CP L
 
Qualifies controlled substance offenses for bail and allows police officers and courts to consider the risk of continued substance abuse and likelihood of serious harm to the principal when considering committing such principal to the custody of the sheriff.
STATE OF NEW YORK
________________________________________________________________________
7649
IN SENATE
February 4, 2020
___________
Introduced by Sen. JACOBS -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the criminal procedure law, in relation to controlled
substance offenses qualifying for bail and allowing courts to consider
the risk of continued substance abuse
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The opening paragraph and paragraphs (a), (d), (h) and (i)
2 of subdivision 4 of section 510.10 of the criminal procedure law, as
3 added by section 2 of part JJJ of chapter 59 of the laws of 2019, are
4 amended and a new paragraph (j) is added to read as follows:
5 Where the principal stands charged with a qualifying offense, the
6 court, unless otherwise prohibited by law, may in its discretion release
7 the principal pending trial on the principal's own recognizance or under
8 non-monetary conditions, fix bail, or, where the defendant is charged
9 with a qualifying offense [which is a felony], the court may commit the
10 principal to the custody of the sheriff. A principal stands charged with
11 a qualifying offense for the purposes of this subdivision when he or she
12 stands charged with:
13 (a) a felony enumerated in section 70.02 of the penal law[, other than
14 burglary in the second degree as defined in subdivision two of section
15 140.25 of the penal law or robbery in the second degree as defined in
16 subdivision one of section 160.10 of the penal law];
17 (d) a class A felony as defined in the penal law[, other than in arti-
18 cle two hundred twenty of such law with the exception of section 220.77
19 of such law];
20 (h) criminal contempt in the second degree as defined in subdivision
21 three of section 215.50 of the penal law, criminal contempt in the first
22 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
23 the penal law or aggravated criminal contempt as defined in section
24 215.52 of the penal law, and the underlying allegation of such charge of
25 criminal contempt in the second degree, criminal contempt in the first
26 degree or aggravated criminal contempt is that the defendant violated a
27 duly served order of protection where the protected party is a member of
28 the defendant's same family or household as defined in subdivision one
29 of section 530.11 of this article; [or]
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14207-05-0
S. 7649 2
1 (i) facilitating a sexual performance by a child with a controlled
2 substance or alcohol as defined in section 263.30 of the penal law, use
3 of a child in a sexual performance as defined in section 263.05 of the
4 penal law or luring a child as defined in subdivision one of section
5 120.70 of the penal law[.]; or
6 (j) a controlled substance offense as defined in article two hundred
7 twenty of the penal law.
8 § 2. Section 510.10 of the criminal procedure law is amended by adding
9 three new subdivisions 5-a, 5-b and 5-c to read as follows:
10 5-a. Notwithstanding the provisions of subdivisions three and four of
11 this section, the court may, in its discretion, commit the principal to
12 the custody of the sheriff for a period of no more than fifteen days, if
13 such principal has a substantial risk of continued substance abuse and
14 there is a likelihood of serious harm to such principal and there exists
15 no alternative less restrictive means available to confine or supervise
16 such principal in order to prevent the principal's substantial risk of
17 continued substance abuse upon release from custody. Alternative and
18 less restrictive means of confinement and supervision shall mean avail-
19 able immediate commitment of such principal in a state licensed
20 substance abuse treatment center, drug rehabilitation center or mental
21 health facility. In making its determination, the court may consider the
22 following factors, including but not limited to:
23 (a) knowledge of the principal's failed attempts to complete drug
24 court;
25 (b) admission by the principal that he or she is addicted to a
26 controlled substance;
27 (c) requests by the principal's immediate family members to hold the
28 principal in custody to prevent the likelihood of serious harm;
29 (d) a record of the principal's arrests for similar offenses related
30 to substance abuse;
31 (e) the arresting officer's testimony of the principal's intoxication
32 or of witnessing the principal's use of a controlled substance; and
33 (f) the principal's possession of a controlled substance or possession
34 of paraphernalia related thereto.
35 5-b. Upon the commitment of such principal to the custody of the sher-
36 iff, or an available, less restrictive means of confinement and super-
37 vision, the court shall order a duly licensed professional to monitor
38 such principal as needed to evaluate the principal's need for treatment
39 and/or medications, and to complete an evaluation for addiction to a
40 controlled substance. Treatment, including but not limited to medica-
41 tions, shall be provided to the principal without unnecessary delay, as
42 recommended by such licensed professional. The principal's complete
43 evaluation, including recommendations for the continued custody of such
44 principal, immediate release from custody, and any other proposals for
45 the care and treatment of such principal shall be provided to the court
46 without unnecessary delay and within no more than seventy-two hours from
47 the completion of such principal's evaluation. The principal, such prin-
48 cipal's counsel and the district attorney's office shall be provided a
49 copy of the principal's evaluation upon request to the court.
50 5-c. The principal shall be afforded the opportunity for a hearing to
51 request the principal's immediate release from the custody of the sher-
52 iff or confinement in a treatment or mental health facility, prior to
53 his or her arraignment. If within seventy-two hours of the court's
54 receipt of the principal's request for such hearing, the principal is
55 not brought before a local criminal court, the principal shall be imme-
56 diately released from the sheriff's custody or confinement in a treat-
S. 7649 3
1 ment facility or mental health facility and served an appearance ticket.
2 The principal shall be entitled to introduce his or her controlled
3 substance evaluation including any recommendations made by a licensed
4 physician that principal should not be held in custody of the sheriff or
5 confined at a treatment or mental health facility and that the principal
6 is not in substantial risk for substance abuse, or there is not a like-
7 lihood of serious harm to the principal upon his or her release from
8 custody. The court shall consider the principal's complete evaluation
9 including treatment recommendations, record of arrests, convictions and
10 any record of participation in any drug court and shall decide whether
11 to immediately release such principal from the custody of the sheriff or
12 confinement in a treatment facility or mental health facility, or to
13 remand the principal to the custody of the sheriff or confinement in a
14 treatment facility or mental health facility for the remainder of the
15 principal's fifteen day period of custody or confinement.
16 § 3. The opening paragraph and subparagraphs (i), (viii) and (ix) of
17 paragraph (b) of subdivision 1 of section 530.20 of the criminal proce-
18 dure law, as added by section 16 of part JJJ of chapter 59 of the laws
19 of 2019, are amended and a new subparagraph (x) is added to read as
20 follows:
21 Where the principal stands charged with a qualifying offense, the
22 court, unless otherwise prohibited by law, may in its discretion release
23 the principal pending trial on the principal's own recognizance or under
24 non-monetary conditions, fix bail, or, where the defendant is charged
25 with a qualifying offense [which is a felony], the court may commit the
26 principal to the custody of the sheriff. The court shall explain its
27 choice of release, release with conditions, bail or remand on the record
28 or in writing. A principal stands charged with a qualifying offense when
29 he or she stands charged with:
30 (i) a felony enumerated in section 70.02 of the penal law[, other than
31 burglary in the second degree as defined in subdivision two of section
32 140.25 of the penal law or robbery in the second degree as defined in
33 subdivision one of section 160.10 of the penal law];
34 (viii) criminal contempt in the second degree as defined in subdivi-
35 sion three of section 215.50 of the penal law, criminal contempt in the
36 first degree as defined in subdivision (b), (c) or (d) of section 215.51
37 of the penal law or aggravated criminal contempt as defined in section
38 215.52 of the penal law, and the underlying allegation of such charge of
39 criminal contempt in the second degree, criminal contempt in the first
40 degree or aggravated criminal contempt is that the defendant violated a
41 duly served order of protection where the protected party is a member of
42 the defendant's same family or household as defined in subdivision one
43 of section 530.11 of this article; [or]
44 (ix) facilitating a sexual performance by a child with a controlled
45 substance or alcohol as defined in section 263.30 of the penal law, use
46 of a child in a sexual performance as defined in section 263.05 of the
47 penal law or luring a child as defined in subdivision one of section
48 120.70 of the penal law[.]; or
49 (x) a controlled substance offense as defined in article two hundred
50 twenty of the penal law.
51 § 4. Subdivision 1 of section 530.20 of the criminal procedure law is
52 amended by adding three new paragraphs (e), (f) and (g) to read as
53 follows:
54 (e) Notwithstanding the provisions of paragraphs (a) and (b) of this
55 subdivision, the court may, in its discretion, commit the principal to
56 the custody of the sheriff for a period of no more than fifteen days, if
S. 7649 4
1 such principal has a substantial risk of continued substance abuse and
2 there is a likelihood of serious harm to such principal and there exists
3 no alternative less restrictive means available to confine or supervise
4 such principal in order to prevent the principal's substantial risk of
5 continued substance abuse upon release from custody. Alternative and
6 less restrictive means of confinement and supervision shall mean avail-
7 able immediate commitment of such principal in a state licensed
8 substance abuse treatment center, drug rehabilitation center or mental
9 health facility. In making its determination, the court may consider the
10 following factors, including but not limited to:
11 (i) knowledge of the principal's failed attempts to complete drug
12 court;
13 (ii) admission by the principal that he or she is addicted to a
14 controlled substance;
15 (iii) requests by the principal's immediate family members to hold the
16 principal in custody to prevent the likelihood of serious harm;
17 (iv) a record of the principal's arrests for similar offenses related
18 to substance abuse;
19 (v) the arresting officer's testimony of witnessing the principal's
20 use of a controlled substance; and
21 (vi) the principal's possession of a controlled substance or
22 possession of paraphernalia related thereto.
23 (f) Upon the commitment of such principal to the custody of the sher-
24 iff, or an available, less restrictive means of confinement and super-
25 vision, the court shall order a duly licensed professional to monitor
26 such principal as needed to evaluate the principal's need for treatment
27 and/or medications, and to complete an evaluation for addiction to a
28 controlled substance. Treatment, including but not limited to medica-
29 tions, shall be provided to the principal without unnecessary delay, as
30 recommended by such licensed professional. The principal's complete
31 evaluation, including recommendations for the continued custody of such
32 principal, immediate release from custody, and any other proposals for
33 the care and treatment of such principal shall be provided to the court
34 without unnecessary delay and within no more than seventy-two hours from
35 the completion of such principal's evaluation. The principal, such prin-
36 cipal's counsel and the district attorney's office shall be provided a
37 copy of the principal's evaluation upon request to the court.
38 (g) The principal shall be afforded the opportunity for a hearing to
39 request the principal's immediate release from the custody of the sher-
40 iff or confinement in a treatment or mental health facility, prior to
41 his or her arraignment. If within seventy-two hours of the court's
42 receipt of the principal's request for such hearing, the principal is
43 not brought before a local criminal court, the principal shall be imme-
44 diately released from the sheriff's custody or confinement in a treat-
45 ment facility or mental health facility and served an appearance ticket.
46 The principal shall be entitled to introduce his or her controlled
47 substance evaluation including any recommendations made by a licensed
48 physician that principal should not be held in custody of the sheriff or
49 confined at a treatment or mental health facility and that the principal
50 is not in substantial risk for substance abuse, or there is not a like-
51 lihood of serious harm to the principal upon his or her release from
52 custody. The court shall consider the principal's complete evaluation
53 including treatment recommendations, record of arrests, convictions and
54 any record of participation in any drug court and shall decide whether
55 to immediately release such principal from the custody of the sheriff or
56 confinement in a treatment facility or mental health facility, or to
S. 7649 5
1 remand the principal to the custody of the sheriff or confinement in a
2 treatment facility or mental health facility for the remainder of the
3 principal's fifteen day period of custody or confinement.
4 § 5. The opening paragraph and paragraphs (a), (h) and (i) of subdivi-
5 sion 4 of section 530.40 of the criminal procedure law, as added by
6 section 18 of part JJJ of chapter 59 of the laws of 2019, are amended
7 and a new paragraph (j) is added to read as follows:
8 Where the principal stands charged with a qualifying offense, the
9 court, unless otherwise prohibited by law, may in its discretion release
10 the principal pending trial on the principal's own recognizance or under
11 non-monetary conditions, fix bail, or, where the defendant is charged
12 with a qualifying offense [which is a felony], the court may commit the
13 principal to the custody of the sheriff. The court shall explain its
14 choice of release, release with conditions, bail or remand on the record
15 or in writing. A principal stands charged with a qualifying offense for
16 the purposes of this subdivision when he or she stands charged with:
17 (a) a felony enumerated in section 70.02 of the penal law[, other than
18 burglary in the second degree as defined in subdivision two of section
19 140.25 of the penal law or robbery in the second degree as defined in
20 subdivision one of section 160.10 of the penal law];
21 (h) criminal contempt in the second degree as defined in subdivision
22 three of section 215.50 of the penal law, criminal contempt in the first
23 degree as defined in subdivision (b), (c) or (d) of section 215.51 of
24 the penal law or aggravated criminal contempt as defined in section
25 215.52 of the penal law, and the underlying allegation of such charge of
26 criminal contempt in the second degree, criminal contempt in the first
27 degree or aggravated criminal contempt is that the defendant violated a
28 duly served order of protection where the protected party is a member of
29 the defendant's same family or household as defined in subdivision one
30 of section 530.11 of this article; [or]
31 (i) facilitating a sexual performance by a child with a controlled
32 substance or alcohol as defined in section 263.30 of the penal law, use
33 of a child in a sexual performance as defined in section 263.05 of the
34 penal law or luring a child as defined in subdivision one of section
35 120.70 of the penal law[.]; or
36 (j) a controlled substance offense as defined in article two hundred
37 twenty of the penal law.
38 § 6. Section 530.40 of the criminal procedure law is amended by adding
39 three new subdivisions 5-a, 5-b and 5-c to read as follows:
40 5-a. Notwithstanding the provisions of subdivisions three and four of
41 this section, the court may, in its discretion, commit the principal to
42 the custody of the sheriff for a period of no more than fifteen days, if
43 such principal has a substantial risk of continued substance abuse and
44 there is a likelihood of serious harm to such principal and there exists
45 no alternative less restrictive means available to confine or supervise
46 such principal in order to prevent the principal's substantial risk of
47 continued substance abuse upon release from custody. Alternative and
48 less restrictive means of confinement and supervision shall mean avail-
49 able immediate commitment of such principal in a state licensed
50 substance abuse treatment center, drug rehabilitation center or mental
51 health facility. In making its determination, the court may consider the
52 following factors, including but not limited to:
53 (a) knowledge of the principal's failed attempts to complete drug
54 court;
55 (b) admission by the principal that he or she is addicted to a
56 controlled substance;
S. 7649 6
1 (c) requests by the principal's immediate family members to hold the
2 principal in custody to prevent the likelihood of serious harm;
3 (d) a record of the principal's arrests for similar offenses related
4 to substance abuse;
5 (e) the arresting officer's testimony of the principal's intoxication
6 or of witnessing the principal's use of a controlled substance; and
7 (f) the principal's possession of a controlled substance or possession
8 of paraphernalia related thereto.
9 5-b. Upon the commitment of such principal to the custody of the sher-
10 iff, or an available, less restrictive means of confinement and super-
11 vision, the court shall order a duly licensed professional to monitor
12 such principal as needed to evaluate the principal's need for treatment
13 and/or medications, and to complete an evaluation for addiction to a
14 controlled substance. Treatment, including but not limited to medica-
15 tions, shall be provided to the principal without unnecessary delay, as
16 recommended by such licensed professional. The principal's complete
17 evaluation, including recommendations for the continued custody of such
18 principal, immediate release from custody, and any other proposals for
19 the care and treatment of such principal shall be provided to the court
20 without unnecessary delay and within no more than seventy-two hours from
21 the completion of such principal's evaluation. The principal, such prin-
22 cipal's counsel and the district attorney's office shall be provided a
23 copy of the principal's evaluation upon request to the court.
24 5-c. The principal shall be afforded the opportunity for a hearing to
25 request the principal's immediate release from the custody of the sher-
26 iff or confinement in a treatment or mental health facility, prior to
27 his or her arraignment. If within seventy-two hours of the court's
28 receipt of the principal's request for such hearing, the principal is
29 not brought before a local criminal court, the principal shall be imme-
30 diately released from the sheriff's custody or confinement in a treat-
31 ment facility or mental health facility and served an appearance ticket.
32 The principal shall be entitled to introduce his or her controlled
33 substance evaluation including any recommendations made by a licensed
34 physician that principal should not be held in custody of the sheriff or
35 confined at a treatment or mental health facility and that the principal
36 is not in substantial risk for substance abuse, or there is not a like-
37 lihood of serious harm to the principal upon his or her release from
38 custody. The court shall consider the principal's complete evaluation
39 including treatment recommendations, record of arrests, convictions and
40 any record of participation in any drug court and shall decide whether
41 to immediately release such principal from the custody of the sheriff or
42 confinement in a treatment facility or mental health facility, or to
43 remand the principal to the custody of the sheriff or confinement in a
44 treatment facility or mental health facility for the remainder of the
45 principal's fifteen day period of custody or confinement.
46 § 7. Subparagraph (ii) of paragraph (g) and paragraph (h) of subdivi-
47 sion 1 of section 510.30 of the criminal procedure law, as amended by
48 section 5 of part JJJ of chapter 59 of the laws of 2019, are amended and
49 a new paragraph (i) is added to read as follows:
50 (ii) the principal's history of use or possession of a firearm; [and]
51 (h) If the principal is a defendant, in the case of an application for
52 a securing order pending appeal, the merit or lack of merit of the
53 appeal[.]; and
54 (i) Whether the principal has a substantial risk of continued
55 substance abuse and there is a likelihood of serious harm to such prin-
56 cipal and there exists no alternative less restrictive means available
S. 7649 7
1 to confine or supervise such principal in order to prevent the princi-
2 pal's substantial risk of continued substance abuse upon release from
3 custody. Alternative and less restrictive means of confinement and
4 supervision shall mean available immediate commitment of such principal
5 in a state licensed substance abuse treatment center, drug rehabili-
6 tation center or mental health facility. In making its determination,
7 the court may consider the following factors, including but not limited
8 to:
9 (i) knowledge of the principal's failed attempts to complete drug
10 court;
11 (ii) admission by the principal that he or she is addicted to a
12 controlled substance;
13 (iii) requests by the principal's immediate family members to hold the
14 principal in custody to prevent the likelihood of serious harm;
15 (iv) a record of the principal's arrests for similar offenses related
16 to substance abuse;
17 (v) the arresting officer's testimony of witnessing the principal's
18 use of a controlled substance; and
19 (vi) the principal's possession of a controlled substance or
20 possession of paraphernalia related thereto.
21 § 8. Section 140.20 of the criminal procedure law is amended by adding
22 a new subdivision 9 to read as follows:
23 9. If after arresting a person, for any offense, a police officer
24 reasonably believes the arrested person is likely addicted to a
25 controlled substance, such arrested person may be temporarily held in
26 custody but must be brought before a local criminal court without unnec-
27 essary delay for a determination of whether the arrested person should
28 be committed to the custody of the sheriff under subdivision five-a of
29 section 510.10, paragraph (e) of subdivision one of section 530.20 or
30 subdivision five-a of section 530.40 of this chapter. In making a deter-
31 mination that the arrested person is likely addicted to a controlled
32 substance and is at substantial risk for continued substance abuse upon
33 release from custody, a police officer may consider the following
34 factors, including but not limited to:
35 (a) the arrested person appears intoxicated, impaired or incapacitated
36 at the time of the arrest, or in the hours following the arrest and
37 while the arrested person is in the custody of the arresting officers or
38 while physically present at the police station;
39 (b) admission by the arrested person that he or she is addicted to a
40 controlled substance;
41 (c) requests by the arrested person's known immediate family members,
42 or fellow residential cohabitants, to hold the arrested person in custo-
43 dy in order to prevent the likelihood of serious harm;
44 (d) knowledge of the arrested person's record of arrests for similar
45 offenses directly related to substance abuse;
46 (e) the arresting officer witnessed the arrested person use a
47 controlled substance; and
48 (f) the arresting officer found the arrested person in possession of a
49 controlled substance or paraphernalia related thereto at the time of the
50 arrest, or upon a search of such arrested person.
51 § 9. This act shall take effect immediately.