Bill Text: NY S02172 | 2019-2020 | General Assembly | Amended


Bill Title: Relates to a judicial diversion program for certain felony offenders; expands definition for an eligible defendant.

Spectrum: Partisan Bill (Democrat 3-0)

Status: (Introduced) 2019-02-11 - REPORTED AND COMMITTED TO RULES [S02172 Detail]

Download: New_York-2019-S02172-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         2172--A
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 23, 2019
                                       ___________
        Introduced by Sens. BAILEY, MYRIE -- read twice and ordered printed, and
          when  printed  to  be  committed  to  the  Committee on Alcoholism and
          Substance  Abuse  --  committee  discharged,  bill  amended,   ordered
          reprinted as amended and recommitted to said committee
        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
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04508-03-9

        S. 2172--A                          2
     1  [abuse]  use  disorder, or by an addiction and substance abuse counselor
     2  credentialed by the office of alcoholism and  substance  abuse  services
     3  pursuant  to  section  19.07  of  the  mental  hygiene  law, which shall
     4  include:
     5    (a) an evaluation as to whether the defendant has a history of alcohol
     6  or substance [abuse or alcohol or substance dependence] use disorder, as
     7  such  terms  are  defined  in  the  diagnostic and statistical manual of
     8  mental disorders, [fourth] fifth  edition,  and  a  co-occurring  mental
     9  disorder  or  mental illness and the relationship between such [abuse or
    10  dependence] use and mental disorder or mental illness, if any;
    11    (b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
    12  substance  [abuse  or  dependence]  use,  if  any,  could be effectively
    13  addressed by judicial diversion in accordance with this article;
    14    (c) a recommendation as to the treatment modality, level of  care  and
    15  length  of any proposed treatment to effectively address the defendant's
    16  alcohol or substance [abuse or  dependence]  use  and  any  co-occurring
    17  mental disorder or illness; and
    18    (d)  any  other  information,  factor, circumstance, or recommendation
    19  deemed relevant by the assessing entity or specifically requested by the
    20  court.
    21    § 2. The opening paragraph of subdivision 1 of section 216.00  of  the
    22  criminal  procedure law, as added by section 4 of part AAA of chapter 56
    23  of the laws of 2009, is amended to read as follows:
    24    "Eligible defendant" means any person who stands charged in an indict-
    25  ment or a superior court information with a class B, C, D  or  E  felony
    26  offense  defined in article two hundred twenty or two hundred twenty-one
    27  of the penal law, an offense defined in sections 105.10  and  105.13  of
    28  the  penal  law  provided  that  the underlying crime for the conspiracy
    29  charge is a class B, C, D or E felony offense  defined  in  article  two
    30  hundred  twenty  or two hundred twenty-one of the penal law, auto strip-
    31  ping in the second degree as defined in section 165.10 of the penal law,
    32  auto stripping in the first degree as defined in section 165.11  of  the
    33  penal  law,  identity  theft  in the second degree as defined in section
    34  190.79 of the penal law, identity theft in the first degree  as  defined
    35  in  section  190.80  of the penal law, or any other specified offense as
    36  defined in subdivision [four] five of section 410.91  of  this  chapter,
    37  provided,  however,  a defendant is not an "eligible defendant" if he or
    38  she:
    39    § 3. Section 216.05 of the criminal procedure law, as added by section
    40  4 of part AAA of chapter 56 of  the  laws  of  2009,  subdivision  5  as
    41  amended  by  chapter 67 of the laws of 2016, subdivision 8 as amended by
    42  chapter 315 of the laws of 2016, and paragraph (a) of subdivision  9  as
    43  amended  by  chapter  258  of  the  laws  of 2015, is amended to read as
    44  follows:
    45  § 216.05 Judicial diversion program; court procedures.
    46    1. At any time after the arraignment of  an  eligible  defendant,  but
    47  prior to the entry of a plea of guilty or the commencement of trial, the
    48  court at the request of the eligible defendant, may order an alcohol and
    49  substance  [abuse]  use evaluation. An eligible defendant may decline to
    50  participate in such an evaluation  at  any  time.  The  defendant  shall
    51  provide  a written authorization, in compliance with the requirements of
    52  any applicable state or federal laws, rules or  regulations  authorizing
    53  disclosure of the results of the assessment to the defendant's attorney,
    54  the  prosecutor,  the  local probation department, the court, authorized
    55  court personnel and other individuals specified  in  such  authorization
    56  for  the  sole  purpose  of  determining whether the defendant should be

        S. 2172--A                          3
     1  offered judicial diversion for treatment for substance [abuse or depend-
     2  ence] use, alcohol [abuse or dependence] use and any co-occurring mental
     3  disorder or mental illness.
     4    2.  Upon  receipt  of  the completed alcohol and substance [abuse] use
     5  evaluation report, the court shall provide a copy of the report  to  the
     6  eligible defendant and the prosecutor.
     7    3.  (a) Upon receipt of the evaluation report either party may request
     8  a hearing on the issue of  whether  the  eligible  defendant  should  be
     9  offered  alcohol  or  substance  [abuse]  use treatment pursuant to this
    10  article. At such a proceeding, which shall be held as soon as  practica-
    11  ble so as to facilitate early intervention in the event that the defend-
    12  ant  is  found  to  need alcohol or substance [abuse] use treatment, the
    13  court may consider oral and written arguments, may take  testimony  from
    14  witnesses  offered  by  either  party,  and  may  consider  any relevant
    15  evidence including, but not limited to, evidence that:
    16    (i) the defendant had within the preceding ten  years  (excluding  any
    17  time  during  which the offender was incarcerated for any reason between
    18  the time of the acts that led to the youthful offender adjudication  and
    19  the time of commission of the present offense) been adjudicated a youth-
    20  ful  offender  for:  (A)  a violent felony offense as defined in section
    21  70.02 of the penal law; or (B) any offense for which a merit time allow-
    22  ance is not available pursuant to subparagraph (ii) of paragraph (d)  of
    23  subdivision  one  of  section eight hundred three of the correction law;
    24  and
    25    (ii) in the case of a felony offense  defined  in  subdivision  [four]
    26  five  of  section  410.91  of  this  chapter, or section 165.10, 165.11,
    27  190.79 or 190.80 of the penal law, any statement of or submitted by  the
    28  victim, as defined in paragraph (a) of subdivision two of section 380.50
    29  of this chapter.
    30    (b) Upon completion of such a proceeding, the court shall consider and
    31  make findings of fact with respect to whether:
    32    (i)  the  defendant is an eligible defendant as defined in subdivision
    33  one of section 216.00 of this article;
    34    (ii) the defendant has a history of alcohol  or  substance  [abuse  or
    35  dependence] use;
    36    (iii)  such  alcohol  or  substance  [abuse  or  dependence]  use is a
    37  contributing factor to the defendant's criminal behavior;
    38    (iv) the defendant's participation in judicial diversion could  effec-
    39  tively address such [abuse or dependence] use; and
    40    (v) institutional confinement of the defendant is or may not be neces-
    41  sary for the protection of the public.
    42    4.  When  an authorized court determines, pursuant to paragraph (b) of
    43  subdivision three of this section, that an eligible defendant should  be
    44  offered  alcohol or substance [abuse] use treatment, or when the parties
    45  and the court agree to an eligible defendant's participation in  alcohol
    46  or substance [abuse] use treatment, an eligible defendant may be allowed
    47  to  participate  in the judicial diversion program offered by this arti-
    48  cle.  Prior to the court's issuing an order granting judicial diversion,
    49  the eligible defendant shall be required to enter a plea  of  guilty  to
    50  the charge or charges; provided, however, that no such guilty plea shall
    51  be required when:
    52    (a)  the  people  and  the court consent to the entry of such an order
    53  without a plea of guilty; or
    54    (b) based on a finding of exceptional circumstances, the court  deter-
    55  mines  that a plea of guilty shall not be required. For purposes of this
    56  subdivision, exceptional circumstances exist  when,  regardless  of  the

        S. 2172--A                          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 or condition and the
    29  effectiveness of the treatment program. In the event  that  a  treatment
    30  program  is  not immediately available or becomes unavailable during the
    31  course of  the  defendant's  participation  in  the  judicial  diversion
    32  program,  the  court  may release the defendant pursuant to the securing
    33  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. 2172--A                          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 or has failed to
     6  appear before the court as requested, the court shall direct the defend-
     7  ant to appear or issue a bench warrant to a police officer or an  appro-
     8  priate  peace  officer  directing  him or her to take the defendant into
     9  custody and bring the defendant before  the  court  without  unnecessary
    10  delay;  provided, however, that under no circumstances shall a defendant
    11  who requires treatment for opioid [abuse or dependence] use be deemed to
    12  have violated a release condition on the basis of  his  or  her  partic-
    13  ipation  in  medically  prescribed  drug  treatments under the care of a
    14  health care professional licensed or certified under title eight of  the
    15  education  law,  acting within his or her lawful scope of practice.  The
    16  provisions of subdivision one of section 530.60 of this chapter relating
    17  to revocation of recognizance or bail shall apply  to  such  proceedings
    18  under this subdivision.
    19    (b)  In determining whether a defendant violated a condition of his or
    20  her release under the judicial diversion program, the court may  conduct
    21  a  summary hearing consistent with due process and sufficient to satisfy
    22  the court that the defendant has, in fact, violated the condition.
    23    (c) If the court determines that the defendant has violated  a  condi-
    24  tion  of  his  or  her release under the judicial diversion program, the
    25  court may modify the conditions thereof, reconsider the order of  recog-
    26  nizance  or  bail  pursuant to subdivision two of section 510.30 of this
    27  chapter, or terminate the  defendant's  participation  in  the  judicial
    28  diversion  program;  and  when  applicable  proceed with the defendant's
    29  sentencing  in  accordance  with  the  agreement.  Notwithstanding   any
    30  provision  of  law  to  the  contrary, the court may impose any sentence
    31  authorized for the crime of  conviction  in  accordance  with  the  plea
    32  agreement,  or  any lesser sentence authorized to be imposed on a felony
    33  drug offender pursuant to paragraph (b) or (c)  of  subdivision  two  of
    34  section  70.70  of  the penal law taking into account the length of time
    35  the defendant spent in residential treatment and how  best  to  continue
    36  treatment  while  the defendant is serving that sentence. In determining
    37  what action to take for a violation of a release  condition,  the  court
    38  shall  consider  all  relevant circumstances, including the views of the
    39  prosecutor, the defense and the alcohol or substance [abuse] use  treat-
    40  ment  provider,  and the extent to which persons who ultimately success-
    41  fully complete  a  drug  treatment  regimen  sometimes  relapse  by  not
    42  abstaining from alcohol or substance [abuse] use or by failing to comply
    43  fully  with  all  requirements imposed by a treatment program. The court
    44  shall  also  consider  using  a  system  of  graduated  and  appropriate
    45  responses or sanctions designed to address such inappropriate behaviors,
    46  protect   public  safety  and  facilitate,  where  possible,  successful
    47  completion of the alcohol or substance [abuse] use treatment program.
    48    (d) Nothing in this subdivision shall be  construed  as  preventing  a
    49  court  from  terminating  a  defendant's  participation  in the judicial
    50  diversion program for violating a release condition when such  a  termi-
    51  nation  is  necessary  to  preserve public safety. Nor shall anything in
    52  this subdivision be construed as precluding the prosecution of a defend-
    53  ant for the commission of a different offense while participating in the
    54  judicial diversion program.
    55    (e) A defendant may at any time advise the court that he or she wishes
    56  to terminate participation in the judicial diversion program,  at  which

        S. 2172--A                          6
     1  time  the court shall proceed with the case and, where applicable, shall
     2  impose sentence in accordance with the plea  agreement.  Notwithstanding
     3  any  provision of law to the contrary, the court may impose any sentence
     4  authorized  for  the  crime  of  conviction  in accordance with the plea
     5  agreement, or any lesser sentence authorized to be imposed on  a  felony
     6  drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
     7  section 70.70 of the penal law taking into account the  length  of  time
     8  the  defendant  spent  in residential treatment and how best to continue
     9  treatment while the defendant is serving that sentence.
    10    10. Upon the court's determination that the defendant has successfully
    11  completed the required period of alcohol or substance [abuse] use treat-
    12  ment and has otherwise satisfied the conditions required for  successful
    13  completion  of  the  judicial  diversion program, the court shall comply
    14  with the terms and conditions it  set  for  final  disposition  when  it
    15  accepted the defendant's agreement to participate in the judicial diver-
    16  sion  program. Such disposition may include, but is not limited to:  (a)
    17  requiring the defendant to undergo a period of interim probation  super-
    18  vision  and,  upon  the defendant's successful completion of the interim
    19  probation supervision term, notwithstanding the provision of  any  other
    20  law,  permitting  the  defendant  to withdraw his or her guilty plea and
    21  dismissing the indictment; or (b) requiring the defendant to  undergo  a
    22  period  of interim probation supervision and, upon successful completion
    23  of the interim probation supervision term, notwithstanding the provision
    24  of any other law, permitting the defendant to withdraw his or her guilty
    25  plea, enter a guilty plea to a misdemeanor offense  and  sentencing  the
    26  defendant  as promised in the plea agreement, which may include a period
    27  of probation supervision pursuant to section 65.00 of the penal law;  or
    28  (c)  allowing  the  defendant  to  withdraw  his  or her guilty plea and
    29  dismissing the indictment.
    30    11. Nothing in this article  shall  be  construed  as  restricting  or
    31  prohibiting  courts or district attorneys from using other lawful proce-
    32  dures  or  models  for  placing  appropriate  persons  into  alcohol  or
    33  substance [abuse] use treatment.
    34    § 4. This act shall take effect immediately; provided, that the amend-
    35  ments to the opening paragraph of subdivision 1 of section 216.00 of the
    36  criminal  procedure law made by section one of this act shall be subject
    37  to the expiration and reversion of such paragraph pursuant to section 12
    38  of chapter 90 of the laws of 2014, as amended, when upon such  date  the
    39  provisions of section two of this act shall take effect.
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