S T A T E O F N E W Y O R K
________________________________________________________________________
816
2009-2010 Regular Sessions
I N S E N A T E
January 18, 2009
___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Finance
AN ACT to amend the correction law, the criminal procedure law, the
executive law and the penal law, in relation to establishing drug
treatment alternatives to incarceration for certain offenders; and
making an appropriation therefor
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The correction law is amended by adding a new section 72-c
to read as follows:
S 72-C. SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAMS FOR CERTAIN
OFFENDERS. 1. THE COMMISSIONER, THE COMMISSIONER OF ALCOHOLISM AND
SUBSTANCE ABUSE SERVICES, THE CHAIRPERSON OF THE DIVISION OF PAROLE AND
THE DIRECTOR OF THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES
SHALL IDENTIFY AND ENTER INTO AGREEMENTS WITH RESIDENTIAL SUBSTANCE
ABUSE, ALCOHOL ABUSE, SUBSTANCE DEPENDENCY AND/OR ALCOHOL DEPENDENCY
TREATMENT PROGRAMS TO PROVIDE FOR THE CARE AND TREATMENT OF ELIGIBLE
OFFENDERS PURSUANT TO SECTION 70.06 OF THE PENAL LAW.
2. THE PROGRAMS SHALL EITHER BE LICENSED BY THE OFFICE OF ALCOHOLISM
AND SUBSTANCE ABUSE SERVICES OR SHALL BE APPROVED BY THE DIVISION OF
PAROLE OR THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES. ANY
PROGRAM THAT IS NOT LICENSED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE
ABUSE SERVICES SHALL PROVIDE TREATMENT SERVICES IN ACCORDANCE WITH ALL
BUT NOT LIMITED TO THE FOLLOWING CRITERIA:
(A) RELIANCE UPON TRADITIONAL SELF-HELP TECHNIQUES AND PROGRAMS SUCH
AS ALCOHOLICS ANONYMOUS OR NARCOTICS ANONYMOUS;
(B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PROVIDE COUNSELING BY
SUCCESSFULLY RECOVERING SUBSTANCE ABUSERS ABSTAINING FROM THEIR DEPEND-
ENCY FOR AT LEAST TWO YEARS;
(C) PROVIDE FOR GROUP LIVING SO LONG AS REQUIRED FOR THE TREATMENT OF
THE OFFENDERS;
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02146-01-9
S. 816 2
(D) PROVIDE DAILY COUNSELING FOR AT LEAST THE FIRST NINETY DAYS;
(E) PROVIDE LIFE-SKILLS TEACHING; AND
(F) PROVIDE FOR DETOXIFICATION SERVICES AND HEALTH-CARE.
3. UPON THE SATISFACTORY COMPLETION OF THE COURSE OF TREATMENT, THE
ELIGIBLE OFFENDER SHALL HAVE THE COURT IMPOSED SENTENCE OF CONDITIONAL
DISCHARGE TERMINATED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90
OF THE CRIMINAL PROCEDURE LAW.
4. OFFENDERS ASSIGNED TO A PROGRAM SHALL BE SENTENCED AS A SECOND
FELONY OFFENDER IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO OF
SECTION 70.06 OF THE PENAL LAW AND SHALL BE COMMITTED TO THE CUSTODY OF
THE DEPARTMENT IF THE COURT DETERMINES:
(A) THAT THE OFFENDER ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT
ALTERNATIVE PROGRAM;
(B) THAT THE CONFINEMENT OF AN OFFENDER IN THE SUBSTANCE ABUSE TREAT-
MENT ALTERNATIVE PROGRAM IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE
SAFETY, SECURITY OR ORDER OF SUCH TREATMENT FACILITY; OR
(C) THAT THE OFFENDER VIOLATED THE TERMS AND CONDITIONS OF THE
SENTENCE.
S 2. Paragraph (a) of subdivision 3 of section 390.30 of the criminal
procedure law, as added by chapter 14 of the laws of 1985, is amended to
read as follows:
(a) The report of the pre-sentence investigation must contain an anal-
ysis of as much of the information gathered in the investigation as the
agency that conducted the investigation deems relevant to the question
of sentence. WHERE APPROPRIATE, THE REPORT MUST INCLUDE A TREATMENT
PLAN INCLUDING BUT NOT LIMITED TO A LISTING OF AVAILABLE LICENSED
SUBSTANCE ABUSE PROGRAMS BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES OR A PROGRAM APPROVED BY THE DIVISION OF PAROLE OR THE DIVISION
OF PROBATION AND CORRECTIONAL ALTERNATIVES TO PROVIDE FOR THE CARE AND
TREATMENT OF OFFENDERS SENTENCED IN ACCORDANCE WITH THE PROVISIONS OF
SUBDIVISION TWO OF SECTION 70.06 OF THE PENAL LAW. The report must also
include any other [imformation] INFORMATION that the court directs to be
included and the material required by paragraph (b) of this subdivision
which shall be considered part of the report.
S 3. The executive law is amended by adding a new section 837-s to
read as follows:
S 837-S. SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM; SPECIAL
PROVISIONS. 1. IN COUNTIES WITH FIVE HUNDRED OR LESS ELIGIBLE OFFENDERS
PARTICIPATING IN SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAMS AS
ESTABLISHED PURSUANT TO SECTION SEVENTY-TWO-C OF THE CORRECTION LAW,
SUCH COUNTY SHALL UTILIZE THE ENFORCEMENT MECHANISM PROVIDED HEREIN. THE
COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ESTAB-
LISH A UNIT WITHIN THE DIVISION OF PAROLE TO WORK WITH THE DISTRICT
ATTORNEY OF SUCH COUNTY AND THE TREATMENT PROGRAMS FOR THE PURPOSE OF
LOCATING, APPREHENDING AND REARRESTING OFFENDERS WHO HAVE ABSCONDED
FROM, OR VIOLATED THE TERMS AND CONDITIONS OF CONDITIONAL DISCHARGE
DURING PARTICIPATION IN A SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM.
2. IN COUNTIES WITH FIVE HUNDRED OR MORE ELIGIBLE OFFENDERS PARTIC-
IPATING IN SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAMS AS ESTABLISHED
PURSUANT TO SECTION SEVENTY-TWO-C OF THE CORRECTION LAW, THE DISTRICT
ATTORNEY OF SUCH COUNTY SHALL APPLY TO THE COMMISSIONER OF THE DIVISION
OF CRIMINAL JUSTICE SERVICES FOR FUNDS TO ESTABLISH A UNIT TO WORK WITH
THE TREATMENT PROGRAMS FOR THE PURPOSE OF LOCATING, APPREHENDING AND
REARRESTING OFFENDERS WHO HAVE ABSCONDED FROM, OR VIOLATED THE TERMS AND
CONDITIONS OF CONDITIONAL DISCHARGE DURING PARTICIPATION IN A SUBSTANCE
ABUSE TREATMENT ALTERNATIVE PROGRAM.
S. 816 3
S 4. Subdivision 2 of section 70.06 of the penal law, as amended by
section 38 of chapter 7 of the laws of 2007, is amended to read as
follows:
2. Authorized sentence. (A) Except as provided in subdivision [five
or] six of this section, or as provided in subdivision five of section
70.80 of this article, when the court has found, pursuant to the
provisions of the criminal procedure law, that a person is a second
felony offender the court must impose an indeterminate sentence of
imprisonment. The maximum term of such sentence must be in accordance
with the provisions of subdivision three of this section and the minimum
period of imprisonment under such sentence must be in accordance with
subdivision four of this section. HOWEVER, IN CASES INVOLVING A
CONVICTION OF A CLASS D OR E FELONY AS DEFINED IN ARTICLES TWO HUNDRED
TWENTY AND TWO HUNDRED TWENTY-ONE OF THIS CHAPTER, OTHERWISE SUBJECT TO
SENTENCE UNDER THIS SECTION, WHERE THE PREDICATE OFFENSE DID NOT SUBJECT
THE OFFENDER TO A SENTENCE PURSUANT TO THE PROVISIONS OF: (A) SECTION
70.02 OF THIS ARTICLE, (B) AN A-I FELONY OFFENSE, (C) MANSLAUGHTER IN
THE SECOND DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE, VEHICU-
LAR MANSLAUGHTER IN THE FIRST DEGREE, AND CRIMINALLY NEGLIGENT HOMICIDE
AS DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THIS CHAPTER, (D) RAPE
IN THE SECOND DEGREE, RAPE IN THE THIRD DEGREE, CRIMINAL SEXUAL ACT IN
THE SECOND DEGREE, CRIMINAL SEXUAL ACT IN THE THIRD DEGREE, ATTEMPTED
SEXUAL ABUSE IN THE FIRST DEGREE, ATTEMPTED RAPE IN THE SECOND DEGREE
AND ATTEMPTED CRIMINAL SEXUAL ACT IN THE SECOND DEGREE AS DEFINED IN
ARTICLES ONE HUNDRED TEN AND ONE HUNDRED THIRTY OF THIS CHAPTER, AND
WHERE IT IS DETERMINED THAT: (I) EXTENDED INSTITUTIONAL CONFINEMENT IS
NOT NECESSARY FOR THE PROTECTION OF THE PUBLIC; (II) THE OFFENDER IS IN
NEED OF TREATMENT TO RECOGNIZE, MODIFY AND ELIMINATE A SUBSTANCE ABUSE,
ALCOHOL ABUSE, SUBSTANCE DEPENDENCY AND/OR ALCOHOL DEPENDENCY; (III) THE
OFFENDER DID NOT HAVE SUBSTANTIAL PROPRIETARY OR OTHER AUTHORITATIVE
CONTROL OF AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANUFACTURE OR SALE
OR DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA; AND (IV) SUCH
DISPOSITION IS NOT INCONSISTENT WITH THE ENDS OF JUSTICE, THE COURT MAY
IMPOSE A SENTENCE OF CONDITIONAL DISCHARGE PURSUANT TO SECTION 65.05 OF
THIS TITLE.
(B) IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR HUNDRED TEN OF
THE CRIMINAL PROCEDURE LAW, THE COURT MAY IMPOSE SUCH A SENTENCE ON THE
CONDITION THAT THE OFFENDER PARTICIPATE IN A SUBSTANCE ABUSE TREATMENT
ALTERNATIVE PROGRAM FOR A SPECIFIED TIME PURSUANT TO SECTION
SEVENTY-TWO-C OF THE CORRECTION LAW.
(C) UPON COMPLETION OF A COURSE OF TREATMENT, THE COURT SHALL TERMI-
NATE THE SENTENCE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90 OF
THE CRIMINAL PROCEDURE LAW. IF THE COURT DETERMINES THAT THE OFFENDER
ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM OR THAT
THE SENTENCE IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE SAFETY, THE
SECURITY OR ORDER OF SUCH TREATMENT FACILITY OR THAT THE OFFENDER OTHER-
WISE VIOLATES THE TERMS AND CONDITIONS OF THE SENTENCE, THE SENTENCE MAY
BE REVOKED. UPON REVOCATION, THE OFFENDER SHALL BE SENTENCED AS A SECOND
FELONY OFFENDER PURSUANT TO THIS SUBDIVISION.
(D) THE COURT SHALL CONDUCT AN ONGOING EVALUATION OF THE PROGRAM. THE
COURT SHALL UNDERTAKE STUDIES IN CONJUNCTION WITH THE DIVISION OF
PROBATION AND CORRECTIONAL ALTERNATIVES, THE DIVISION OF PAROLE, THE
OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES TO ENSURE THAT THE
PROGRAMMATIC OBJECTIVES ARE MET.
S. 816 4
S 5. Subdivision 2 of section 70.06 of the penal law, as amended by
section 39 of chapter 7 of the laws of 2007, is amended to read as
follows:
2. Authorized sentence. (A) Except [as provided in subdivision five of
this section, or] as provided in subdivision five of section 70.80 of
this article, when the court has found, pursuant to the provisions of
the criminal procedure law, that a person is a second felony offender
the court must impose an indeterminate sentence of imprisonment. The
maximum term of such sentence must be in accordance with the provisions
of subdivision three of this section and the minimum period of imprison-
ment under such sentence must be in accordance with subdivision four of
this section. HOWEVER, IN CASES INVOLVING A CONVICTION OF A CLASS D OR
E FELONY AS DEFINED IN ARTICLES TWO HUNDRED TWENTY AND TWO HUNDRED TWEN-
TY-ONE OF THIS CHAPTER, OTHERWISE SUBJECT TO SENTENCE UNDER THIS
SECTION, WHERE THE PREDICATE OFFENSE DID NOT SUBJECT THE OFFENDER TO A
SENTENCE PURSUANT TO THE PROVISIONS OF: (A) SECTION 70.02 OF THIS ARTI-
CLE, (B) AN A-I FELONY OFFENSE, (C) MANSLAUGHTER IN THE SECOND DEGREE,
VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE, VEHICULAR MANSLAUGHTER IN
THE FIRST DEGREE, AND CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN ARTI-
CLE ONE HUNDRED TWENTY-FIVE OF THIS CHAPTER, (D) RAPE IN THE SECOND
DEGREE, RAPE IN THE THIRD DEGREE, CRIMINAL SEXUAL ACT IN THE SECOND
DEGREE, CRIMINAL SEXUAL ACT IN THE THIRD DEGREE, ATTEMPTED SEXUAL ABUSE
IN THE FIRST DEGREE, ATTEMPTED RAPE IN THE SECOND DEGREE AND ATTEMPTED
CRIMINAL SEXUAL ACT IN THE SECOND DEGREE AS DEFINED IN ARTICLES ONE
HUNDRED TEN AND ONE HUNDRED THIRTY OF THIS CHAPTER, AND WHERE IT IS
DETERMINED THAT: (I) EXTENDED INSTITUTIONAL CONFINEMENT IS NOT NECESSARY
FOR THE PROTECTION OF THE PUBLIC; (II) THE OFFENDER IS IN NEED OF TREAT-
MENT TO RECOGNIZE, MODIFY AND ELIMINATE A SUBSTANCE ABUSE, ALCOHOL
ABUSE, SUBSTANCE DEPENDENCY AND/OR ALCOHOL DEPENDENCY; (III) THE OFFEN-
DER DID NOT HAVE SUBSTANTIAL PROPRIETARY OR OTHER AUTHORITATIVE CONTROL
OF AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANUFACTURE OR SALE OR
DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA; AND (IV) SUCH
DISPOSITION IS NOT INCONSISTENT WITH THE ENDS OF JUSTICE, THE COURT MAY
IMPOSE A SENTENCE OF CONDITIONAL DISCHARGE PURSUANT TO SECTION 65.05 OF
THIS TITLE.
(B) IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR HUNDRED TEN OF
THE CRIMINAL PROCEDURE LAW, THE COURT MAY IMPOSE SUCH A SENTENCE ON THE
CONDITION THAT THE OFFENDER PARTICIPATE IN A SUBSTANCE ABUSE TREATMENT
ALTERNATIVE PROGRAM FOR A SPECIFIED TIME PURSUANT TO SECTION
SEVENTY-TWO-C OF THE CORRECTION LAW.
(C) UPON COMPLETION OF A COURSE OF TREATMENT, THE COURT SHALL TERMI-
NATE THE SENTENCE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90 OF
THE CRIMINAL PROCEDURE LAW. IF THE COURT DETERMINES THAT THE OFFENDER
ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM OR THAT
THE SENTENCE IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE SAFETY, THE
SECURITY OR ORDER OF SUCH TREATMENT FACILITY OR THAT THE OFFENDER OTHER-
WISE VIOLATES THE TERMS AND CONDITIONS OF THE SENTENCE, THE SENTENCE MAY
BE REVOKED. UPON REVOCATION, THE OFFENDER SHALL BE SENTENCED AS A SECOND
FELONY OFFENDER PURSUANT TO THIS SUBDIVISION.
(D) THE COURT SHALL CONDUCT AN ONGOING EVALUATION OF THE PROGRAM. THE
COURT SHALL UNDERTAKE STUDIES IN CONJUNCTION WITH THE DIVISION OF
PROBATION AND CORRECTIONAL ALTERNATIVES, THE DIVISION OF PAROLE, THE
OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES TO ENSURE THAT THE
PROGRAMMATIC OBJECTIVES ARE MET.
S 6. The penal law is amended by adding a new section 220.77 to read
as follows:
S. 816 5
S 220.77 OPERATING AN ILLEGAL DRUG ENTERPRISE.
A PERSON IS GUILTY OF OPERATING AN ILLEGAL DRUG ENTERPRISE WHEN HE OR
SHE KNOWINGLY AND UNLAWFULLY HAS SUBSTANTIAL PROPRIETARY OR OTHER
AUTHORITATIVE CONTROL OF AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANU-
FACTURE, SALE OR DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA.
OPERATING AN ILLEGAL DRUG ENTERPRISE IS A CLASS C FELONY.
S 7. The sum of twenty-one million dollars ($21,000,000), or so much
thereof as may be necessary, is hereby appropriated to the division of
criminal justice services in consultation and coordination with the
commissioner of alcoholism and substance abuse services, the chairperson
of the division of parole, and the director of the division of probation
and correctional alternatives out of any moneys in the state treasury in
the general fund to the credit of the state purposes account not other-
wise appropriated, for carrying out the provisions of this act. Such
sum shall be payable on the audit and warrant of the state comptroller
on vouchers certified or approved by the commissioner of the division of
criminal justice services, or his or her duly designated representative
in the manner provided by law. No expenditure shall be made from this
appropriation until a certificate of approval of availability shall have
been issued by the director of the budget and filed with the state comp-
troller and a copy filed with the chairperson of the senate finance
committee and the chairperson of the assembly ways and means committee.
Such certificate may be amended from time to time by the director of the
budget and a copy of each such amendment shall be filed with the state
comptroller, the chairperson of the senate finance committee and the
chairperson of the assembly ways and means committee.
S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law; provided that the
amendments to subdivision 2 of section 70.06 of the penal law made by
section four of this act shall be subject to the expiration and rever-
sion of such subdivision pursuant to section 74 of chapter 3 of the laws
of 1995, as amended, when upon such date the provisions of section five
of this act shall take effect.