Bill Text: NY A10101 | 2019-2020 | General Assembly | Introduced
Bill Title: 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.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-03-12 - referred to codes [A10101 Detail]
Download: New_York-2019-A10101-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10101 IN ASSEMBLY March 12, 2020 ___________ Introduced by M. of A. BYRNES -- read once and referred 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 than14burglary in the second degree as defined in subdivision two of section15140.25 of the penal law or robbery in the second degree as defined in16subdivision 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-18cle two hundred twenty of such law with the exception of section 220.7719of 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. LBD14207-05-0A. 10101 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-A. 10101 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 than31burglary in the second degree as defined in subdivision two of section32140.25 of the penal law or robbery in the second degree as defined in33subdivision 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, ifA. 10101 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 toA. 10101 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 than18burglary in the second degree as defined in subdivision two of section19140.25 of the penal law or robbery in the second degree as defined in20subdivision 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;A. 10101 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 availableA. 10101 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.
