Bill Text: NY S08687 | 2019-2020 | General Assembly | Introduced
Bill Title: Relates to judicial diversion programs and establishes a diversion part in each county; and repeals certain provisions of law relating thereto.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2020-07-08 - REFERRED TO RULES [S08687 Detail]
Download: New_York-2019-S08687-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8687 IN SENATE July 8, 2020 ___________ Introduced by Sen. RAMOS -- 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 judicial diversion programs; and to repeal certain provisions of such law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The article heading of article 216 of the criminal proce- 2 dure law, as added by section 4 of part AAA of chapter 56 of the laws of 3 2009, is amended to read as follows: 4 JUDICIAL DIVERSION [PROGRAM FOR CERTAIN FELONY OFFENDERS] 5 PROGRAMS 6 § 2. The opening paragraph of subdivision 1 of section 216.00 of the 7 criminal procedure law, as amended by chapter 90 of the laws of 2014, is 8 amended to read as follows: 9 "Eligible defendant" means any person who stands charged in an indict- 10 ment [or a], superior court information [with a class B, C, D or E felo-11ny offense defined in article one hundred seventy-nine, two hundred12twenty or two hundred twenty-one of the penal law or any other specified13offense as defined in subdivision four of section 410.91 of this chap-14ter, provided, however, a defendant is not an "eligible defendant" if he15or she:], misdemeanor complaint or felony complaint with any offense and 16 has a functional impairment. 17 § 3. The opening paragraph of subdivision 1 of section 216.00 of the 18 criminal procedure law, as added by section 4 of part AAA of chapter 56 19 of the laws of 2009, is amended to read as follows: 20 "Eligible defendant" means any person who stands charged in an indict- 21 ment [or a], superior court information [with a class B, C, D or E felo-22ny offense defined in article two hundred twenty or two hundred twenty-23one of the penal law or any other specified offense as defined in24subdivision four of section 410.91 of this chapter, provided, however, a25defendant is not an "eligible defendant" if he or she:], misdemeanor 26 complaint or felony complaint with any offense and has a functional 27 impairment. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD16163-02-0S. 8687 2 1 § 4. Paragraphs (a) and (b) and the closing paragraph of subdivision 1 2 of section 216.00 of the criminal procedure law are REPEALED. 3 § 5. Subdivision 2 of section 216.00 of the criminal procedure law, as 4 added by section 4 of part AAA of chapter 56 of the laws of 2009, is 5 amended to read as follows: 6 2. ["Alcohol and substance abuse] "Functional impairment" means a 7 condition determined by a licensed health care professional to impair 8 the defendant's functioning. A functional impairment may include, but is 9 not limited to, substance abuse or alcohol dependence, mental illness, 10 developmental disability, intellectual disability, traumatic brain inju- 11 ry or other neurological disease, personality disorder, cognitive 12 dysfunction, dementia or emotional disturbance. The court shall defer to 13 licensed health care professionals and the broader medical community 14 consensus in determining what a functional impairment is in recognition 15 that such standards may change quickly within the medical field based on 16 new research. A person may have more than one functional impairment. 17 3. "Clinical evaluation" means a written assessment and report by a 18 court-approved entity or licensed health care professional experienced 19 in the treatment of [alcohol and substance abuse, or] functional impair- 20 ments as defined in subdivision two of this section or an evaluation 21 conducted by an addiction and substance abuse counselor credentialed by 22 the office of [alcoholism and substance abuse services] addiction 23 services and supports pursuant to section 19.07 of the mental hygiene 24 law, which shall include: 25 (a) an evaluation as to whether the defendant currently has a [history26of alcohol or substance abuse or alcohol or substance dependence] func- 27 tional impairment including but not limited to a mental disorder, as 28 [such terms are] defined in the diagnostic and statistical manual of 29 mental disorders, [fourth] fifth edition, and a co-occurring [mental30disorder or mental illness and the relationship between such abuse or31dependence and mental disorder or mental illness] functional impairment, 32 if any; 33 (b) a recommendation as to whether the defendant's [alcohol or34substance abuse or dependence] functional impairments, if any, could be 35 effectively addressed by judicial diversion in accordance with this 36 article; 37 (c) a recommendation as to the treatment modality, level of care and 38 length of any proposed treatment to effectively address the defendant's 39 [alcohol or substance abuse or dependence and any co-occurring mental40disorder or illness] functional impairments; and 41 (d) any other information, factor, circumstance, or recommendation 42 deemed relevant by the assessing entity or specifically requested by the 43 court. 44 § 6. Section 216.05 of the criminal procedure law, as added by section 45 4 of part AAA of chapter 56 of the laws of 2009, subdivision 5 as 46 amended by chapter 67 of the laws of 2016, subdivision 8 as amended by 47 chapter 315 of the laws of 2016 and paragraph (a) of subdivision 9 as 48 amended by section 21 of part JJJ of chapter 59 of the laws of 2019, is 49 amended to read as follows: 50 § 216.05 Judicial diversion program; court procedures. 51 1. At any time after the arraignment of an eligible defendant, but 52 prior to the entry of a plea of guilty or the commencement of trial, the 53 court at the request of the eligible defendant, [may] shall order [an54alcohol and substance abuse] a clinical evaluation. An eligible defend- 55 ant may decline to participate in such an evaluation at any time. The 56 defendant shall provide a written authorization, in compliance with theS. 8687 3 1 requirements of any applicable state or federal laws, rules or regu- 2 lations authorizing disclosure of the results of the assessment to the 3 defendant's attorney, the prosecutor, the local probation department, 4 the court, authorized court personnel and other individuals specified in 5 such authorization for the sole purpose of determining whether the 6 defendant should be offered judicial diversion for treatment for 7 [substance abuse or dependence, alcohol abuse or dependence and any8co-occurring mental disorder or mental illness] functional impairment or 9 mental disorder. 10 2. Upon receipt of the completed [alcohol and substance abuse] clin- 11 ical evaluation report, the court shall provide a copy of the report to 12 the eligible defendant and the [prosecutor] defendant's counsel. Any 13 finding in the report or assessment that the defendant has a mental 14 disorder as defined in the diagnostic and statistical manual of mental 15 disorders, fifth edition, or a clinical diagnosis of another serious 16 functional impairment shall be viewed as presumptive evidence that the 17 case should be diverted and the defendant should receive treatment. 18 3. (a) Upon receipt of the evaluation report [either party] the 19 defendant may request a hearing on the issue of whether the eligible 20 defendant should be offered [alcohol or substance abuse] treatment 21 pursuant to this article. At such time, the defendant shall turn over a 22 complete copy of the evaluation report to the prosecutor and the court. 23 At such a proceeding, which shall be held as soon as practicable so as 24 to facilitate early intervention in the event that the defendant is 25 found to need [alcohol or substance abuse] treatment, the court may 26 consider oral and written arguments, may take testimony from witnesses 27 offered by either party, and may consider any relevant evidence includ- 28 ing, but not limited to, evidence that: 29 (i) the defendant had within the preceding ten years (excluding any 30 time during which the offender was incarcerated for any reason between 31 the time of the acts that led to the youthful offender adjudication and 32 the time of commission of the present offense) been adjudicated a youth- 33 ful offender for: (A) a violent felony offense as defined in section 34 70.02 of the penal law; or (B) any offense for which a merit time allow- 35 ance is not available pursuant to subparagraph (ii) of paragraph (d) of 36 subdivision one of section eight hundred three of the correction law; 37 and 38 (ii) in the case of a felony offense defined in subdivision four of 39 section 410.91 of this chapter, any statement of or submitted by the 40 victim, as defined in paragraph (a) of subdivision two of section 380.50 41 of this chapter; and 42 (iii) the defendant has a functional impairment; and 43 (iv) the defendant's functional impairment contributed to their crimi- 44 nal legal system involvement. 45 (b) Upon completion of such a proceeding, the court shall consider and 46 make findings of fact with respect to whether: 47 (i) the defendant is an eligible defendant as defined in subdivision 48 one of section 216.00 of this article; 49 (ii) the defendant has a [history of alcohol or substance abuse or50dependence] functional impairment as defined in subdivision two of 51 section 216.00 of this article; 52 (iii) such [alcohol or substance abuse or dependence] functional 53 impairment is or may be a contributing factor to the defendant's [crimi-54nal behavior] involvement in the criminal legal system; 55 (iv) the defendant's participation in judicial diversion could effec- 56 tively address such [abuse or dependence] functional impairment; andS. 8687 4 1 (v) institutional confinement [of] or outpatient treatment for the 2 defendant [is or may not be necessary for the protection of the public] 3 would benefit the public or the defendant. 4 4. (a) When an authorized court determines, pursuant to paragraph (b) 5 of subdivision three of this section, that an eligible defendant should 6 be offered [alcohol or substance abuse] treatment, or when the parties 7 and the court agree to an eligible defendant's participation in [alcohol8or substance abuse] treatment, an eligible defendant [may] shall be 9 allowed to participate in the judicial diversion program offered by this 10 article. [Prior to the court's issuing an order granting judicial11diversion, the eligible defendant shall be required to enter a plea of12guilty to the charge or charges; provided, however, that no such guilty13plea shall be required when:14(a) the people and the court consent to the entry of such an order15without a plea of guilty; or16(b) based on a finding of exceptional circumstances, the court deter-17mines that a plea of guilty shall not be required. For purposes of this18subdivision, exceptional circumstances exist when, regardless of the19ultimate disposition of the case, the entry of a plea of guilty is like-20ly to result in severe collateral consequences.] 21 (b) There shall be a presumption in favor of allowing eligible defend- 22 ants to participate in the judicial diversion program without a prior 23 plea of guilt. This presumption recognizes the presumption of innocence 24 in all cases before the prosecutor obtains a conviction. This presump- 25 tion also protects defendants from the severe collateral consequences 26 associated with a criminal conviction, particularly consequences relat- 27 ing to immigration status, licensing for employment, and housing. Under 28 no circumstances shall the prosecutor serve as a gatekeeper to diver- 29 sion. 30 (c) In the rare circumstance that a court determines that a plea of 31 guilty prior to treatment is necessary, such as when the defendant has 32 previously failed to complete judicial diversion under this article on 33 more than two occasions, the defendant shall not be required to waive 34 their trial rights or submit an affidavit conceding their guilt. Under 35 no circumstance shall a court require a plea of guilty prior to disclo- 36 sure of the discovery material in the case pursuant to section 245.25 of 37 this chapter. 38 5. The defendant shall agree on the record or in writing to abide by 39 the release conditions set by the court, which, shall include[:] partic- 40 ipation in a specified period of [alcohol or substance abuse] treatment 41 at a specified program or programs identified by the court[, which may42include]. The court shall take into account the views of the health care 43 professional who conducted the clinical evaluation and any health care 44 professionals responsible for providing such treatment or monitoring the 45 defendant's progress in such treatment. Additional release conditions 46 may include: 47 (a) adhering to a doctor's prescribed medication, 48 (b) periods of detoxification, 49 (c) residential or outpatient treatment, or both, as determined after 50 taking into account the views of the health care professional who 51 conducted the mental health assessment or alcohol and substance abuse 52 evaluation and any health care professionals responsible for providing 53 such treatment or monitoring the defendant's progress in such treatment; 54 and may include: 55 [(i)] (d) periodic court appearances, which may include periodic 56 urinalysis;S. 8687 5 1 [(ii)] (e) a requirement that the defendant refrain from engaging in 2 criminal behaviors; 3 [(iii)] (f) if the defendant needs treatment for opioid abuse or 4 dependence or has another condition requiring prescription medication, 5 that he or she may participate in and receive medically prescribed drug 6 treatments under the care of a health care professional licensed or 7 certified under title eight of the education law, acting within his or 8 her lawful scope of practice[, provided that no]. No court shall require 9 the use of any specified type or brand of drug during the course of 10 medically prescribed drug treatments. 11 6. Upon an eligible defendant's agreement to abide by the conditions 12 set by the court, the court shall issue a securing order providing for 13 bail or release on the defendant's own recognizance and conditioning any 14 release upon the agreed upon conditions pursuant to article five hundred 15 ten of this chapter. The period of alcohol or substance abuse treatment 16 shall begin as specified by the court and as soon as practicable after 17 the defendant's release, taking into account the availability of treat- 18 ment, so as to facilitate early intervention with respect to the defend- 19 ant's abuse or condition and the effectiveness of the treatment program. 20 In the event that a treatment program is not immediately available or 21 becomes unavailable during the course of the defendant's participation 22 in the judicial diversion program, the court may release the defendant 23 pursuant to the securing order. 24 7. When participating in judicial diversion treatment pursuant to this 25 article, any resident of this state who is covered under a private 26 health insurance policy or contract issued for delivery in this state 27 pursuant to article thirty-two, forty-three or forty-seven of the insur- 28 ance law or article forty-four of the public health law, or who is 29 covered by a self-funded plan which provides coverage for the diagnosis 30 and treatment of mental illness, chemical abuse and chemical dependence, 31 or any other functional impairment however defined in such policy; shall 32 first seek reimbursement for such treatment in accordance with the 33 provisions of such policy or contract. The court in its discretion may 34 order the defendant to obtain public insurance such as Medicaid or Medi- 35 care if they so qualify. However, the defendant shall not be required to 36 pay for any part of the cost of treatment required by the court that is 37 not covered by private or public health insurance. 38 8. During the period of a defendant's participation in the judicial 39 diversion program, the court shall retain jurisdiction of the defendant, 40 provided, however, that the court may allow such defendant to (i) reside 41 in another jurisdiction, or (ii) participate in mental health and/or 42 alcohol and substance abuse treatment and other programs in the juris- 43 diction where the defendant resides or in any other jurisdiction, while 44 participating in a judicial diversion program under conditions set by 45 the court and agreed to by the defendant pursuant to subdivisions five 46 and six of this section. The court may require the defendant to appear 47 in court at any time to enable the court to monitor the defendant's 48 progress in alcohol or substance abuse treatment. The court shall 49 provide notice, reasonable under the circumstances, to the people, the 50 treatment provider, the defendant and the defendant's counsel whenever 51 it orders or otherwise requires the appearance of the defendant in 52 court. Failure to appear as required without reasonable cause therefor 53 shall constitute a violation of the conditions of the court's agreement 54 with the defendant. 55 9. (a) If at any time during the defendant's participation in the 56 judicial diversion program, the court has reasonable grounds to believeS. 8687 6 1 that the defendant has violated a release condition in an important 2 respect or has willfully failed to appear before the court as requested, 3 the court except as provided in subdivision two of section 510.50 of 4 this chapter regarding a failure to appear, shall [direct the defendant5to appear or issue a bench warrant to a police officer or an appropriate6peace officer directing him or her to take the defendant into custody7and bring the defendant before the court without unnecessary delay] 8 order a hearing to determine whether it is appropriate to issue a bench 9 warrant; provided, however, that under no circumstances shall a defend- 10 ant who requires treatment for mental health issues and/or opioid abuse 11 or dependence be deemed to have violated a release condition on the 12 basis of his or her participation in medically prescribed drug treat- 13 ments under the care of a health care professional licensed or certified 14 under title eight of the education law, acting within his or her lawful 15 scope of practice. The relevant provisions of section 530.60 of this 16 chapter relating to issuance of securing orders shall apply to such 17 proceedings under this subdivision. 18 (b) In determining whether a defendant violated a condition of his or 19 her release under the judicial diversion program, the court [may] shall 20 conduct a summary hearing consistent with due process and sufficient to 21 satisfy the court that the defendant has, in fact, violated the condi- 22 tion. 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 felony33drug offender pursuant to paragraph (b) or (c) of subdivision two of34section 70.70 of the penal law taking]. The court shall take into 35 account the length of time the defendant spent in residential treatment 36 and how best to continue treatment while the defendant is serving that 37 sentence. In determining what action to take for a violation of a 38 release condition, the court shall consider all relevant circumstances, 39 including the views of the prosecutor, the defense and the mental health 40 and/or alcohol or substance abuse treatment provider, and the extent to 41 which persons who ultimately successfully complete a drug treatment 42 regimen sometimes relapse by not abstaining from alcohol or substance 43 abuse or by failing to comply fully with all requirements imposed by a 44 treatment program. The court shall also consider using a system of grad- 45 uated and appropriate responses or sanctions designed to address such 46 inappropriate behaviors, protect public safety and facilitate, where 47 possible, successful completion of the mental health and/or alcohol or 48 substance abuse treatment program. 49 (d) Nothing in this subdivision shall be construed as preventing a 50 court from terminating a defendant's participation in the judicial 51 diversion program for violating a release condition when such a termi- 52 nation is necessary to preserve public safety. Nor shall anything in 53 this subdivision be construed as precluding the prosecution of a defend- 54 ant for the commission of a different offense while participating in the 55 judicial diversion program. Prior to such termination, the defendant 56 shall be entitled to a hearing at which clear and convincing evidenceS. 8687 7 1 shall be offered to support that there exists a substantial risk to an 2 identifiable person. In the absence of such a hearing and such a find- 3 ing, there can be no termination. 4 (e) A defendant may at any time advise the court that he or she wishes 5 to terminate participation in the judicial diversion program, at which 6 time the court shall proceed with the case and, where applicable, shall 7 impose sentence in accordance with the plea agreement. Notwithstanding 8 any provision of law to the contrary, the court may impose any sentence 9 authorized for the crime of conviction in accordance with the plea 10 agreement, or any lesser sentence authorized to be imposed on a felony 11 drug offender pursuant to paragraph (b) or (c) of subdivision two of 12 section 70.70 of the penal law taking into account the length of time 13 the defendant spent in residential treatment and how best to continue 14 treatment while the defendant is serving that sentence. 15 10. Upon the court's determination that the defendant has successfully 16 completed the required period of alcohol or substance abuse treatment 17 and has otherwise satisfied the conditions required for successful 18 completion of the judicial diversion program, the court shall comply 19 with the terms and conditions it set for final disposition when it 20 accepted the defendant's agreement to participate in the judicial diver- 21 sion program. Such disposition may include, but is not limited to: 22 (a) requiring the defendant to undergo a period of interim probation 23 supervision and, upon the defendant's successful completion of the 24 interim probation supervision term, notwithstanding the provision of any 25 other law, permitting the defendant to withdraw his or her guilty plea 26 and dismissing the indictment or information; or 27 (b) requiring the defendant to undergo a period of interim probation 28 supervision and, upon successful completion of the interim probation 29 supervision term, notwithstanding the provision of any other law, 30 permitting the defendant to withdraw his or her guilty plea, enter a 31 guilty plea to a misdemeanor or violation offense if the original charge 32 was a felony, or enter a guilty plea to a violation if the original 33 charge was a misdemeanor, and sentencing the defendant as promised in 34 the plea agreement, which may include a period of probation supervision 35 pursuant to section 65.00 of the penal law; or 36 (c) allowing the defendant to withdraw his or her guilty plea and 37 dismissing the indictment or information; or 38 (d) sentencing the defendant to less than the statutory minimum 39 required by article seventy of the penal law where the judge finds that 40 the defendant took steps to substantially comply with the treatment and 41 such a reduced sentence is in the interests of justice. 42 11. Nothing in this article shall be construed as restricting or 43 prohibiting courts or district attorneys from using other lawful proce- 44 dures or models for placing appropriate persons into [alcohol or45substance abuse] treatment. 46 12. No agreement entered into pursuant to this article shall contain a 47 provision waiving defendant's right to sealing pursuant to section 48 160.50 of this chapter. 49 § 7. The criminal procedure law is amended by adding a new section 50 216.10 to read as follows: 51 § 216.10 Diversion part established. 52 1. The chief administrator of the courts is hereby directed to estab- 53 lish, in each county of the state, a part of the court to be known as 54 the diversion part for the county in which such court presides. To aid 55 in their work, such judges shall receive annual training in specialized 56 areas, including, but not limited to mental health and substance abuseS. 8687 8 1 needs, including co-occurring disorders, evidence based-practices, and 2 trauma-informed care, as well as training in procedural justice and 3 cultural competency. The chief administrator of the courts shall ensure 4 that all employees who staff the diversion parts receive specialized 5 training in procedural justice and working with people with complex 6 needs. 7 2. Each chief administrator of the courts shall at the end of each 8 year prepare and file an annual report, which the office shall compile, 9 publish on its website and make available upon request to members of the 10 public. Such reports shall not include any personal identifying informa- 11 tion for any individual defendants. Each such report, in addition to 12 other relevant information, shall set forth, disaggregated by each coun- 13 ty served: 14 (a) the number of defendants with cases in the diversion part; 15 (b) the length of time, in months, each case remained in the diversion 16 part prior to acquittal, dismissal, release on recognizance, revocation 17 of release on conditions, and sentencing; 18 (c) the race, ethnicity, age and sex of each defendant in the diver- 19 sion part; 20 (d) the crimes with which each defendant was charged; 21 (e) whether the treatment obtained was for substance use, mental 22 health, co-occurring or other; 23 (f) the court disposition in each supervised case, including sentenc- 24 ing information; 25 (g) the costs saved to the county by avoiding pre-trial or post-con- 26 viction detention in a county jail or state prison; and 27 (h) a list of service providers, including contact information, that 28 the diversion part in the superior court of the county partners with to 29 serve defendants. 30 § 8. This act shall take effect immediately; provided, however that 31 the amendments to the opening paragraph of subdivision 1 of section 32 216.00 of the criminal procedure law made by section two of this act 33 shall be subject to the expiration and reversion of such paragraph 34 pursuant to section 12 of chapter 90 of the laws of 2014, as amended, 35 when upon such date the provisions of section three of this act shall 36 take effect.