S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3404
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 27, 2017
                                ___________
 
 Introduced  by M. of A. MALLIOTAKIS, CASTORINA -- read once and referred
   to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in relation to enacting  the
   "Officer Randolph Holder's law"
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:

   Section 1. This act shall be known and may be cited  as  the  "Officer
 Randolph Holder's law."
   §  2. Paragraph (b) of subdivision 1 of section 216.00 of the criminal
 procedure law, as added by section 4 of part AAA of chapter  56  of  the
 laws of 2009, is amended to read as follows:
   (b)  has previously been adjudicated a SECOND FELONY OFFENDER PURSUANT
 TO SECTION 70.06 OF THE PENAL LAW OR A PERSISTENT FELONY OFFENDER PURSU-
 ANT TO SECTION 70.10 OF THE PENAL LAW OR A second violent felony  offen-
 der  pursuant  to section 70.04 of the penal law or a persistent violent
 felony offender pursuant to section 70.08 of the penal law.
   § 3. Paragraph (d) of subdivision 2 of section 216.00 of the  criminal
 procedure  law,  as  added by section 4 of part AAA of chapter 56 of the
 laws of 2009, is amended to read as follows:
   (d) any other information,  factor,  circumstance,  or  recommendation
 deemed relevant by the assessing entity or specifically requested by the
 court.  THIS  SHALL  INCLUDE  ANY  INFORMATION,  FACTOR, OR CIRCUMSTANCE
 RELATING TO THE DEFENDANT'S POTENTIAL FOR BEHAVIOR THAT  MAY  JEOPARDIZE
 THE SAFETY OF OTHERS RECEIVING TREATMENT OR THE SAFETY OF THE PUBLIC.
   § 4. Subdivision 3 of section 216.05 of the criminal procedure law, as
 added  by  section  4  of part AAA of chapter 56 of the laws of 2009, is
 amended to read as follows:
   3. [(a) Upon receipt of the evaluation report either party may request
 a hearing on the issue of  whether  the  eligible  defendant  should  be
 offered  alcohol  or substance abuse treatment pursuant to this article.
 At such a proceeding, which shall be held as soon as practicable  so  as

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05992-01-7

 A. 3404                             2

 to  facilitate  early  intervention  in  the event that the defendant is
 found to need alcohol  or  substance  abuse  treatment,  the  court  may
 consider  oral  and written arguments, may take testimony from witnesses
 offered  by either party, and may consider any relevant evidence includ-
 ing, but not limited to, evidence that:
   (i) the defendant had within the preceding ten  years  (excluding  any
 time  during  which the offender was incarcerated for any reason between
 the time of the acts that led to the youthful offender adjudication  and
 the time of commission of the present offense) been adjudicated a youth-
 ful  offender  for:  (A)  a violent felony offense as defined in section
 70.02 of the penal law; or (B) any offense for which a merit time allow-
 ance is not available pursuant to subparagraph (ii) of paragraph (d)  of
 subdivision  one  of  section eight hundred three of the correction law;
 and
   (ii) in the case of a felony offense defined in  subdivision  four  of
 section  410.91  of  this  chapter, any statement of or submitted by the
 victim, as defined in paragraph (a) of subdivision two of section 380.50
 of this chapter.
   (b)] Upon [completion of such a proceeding] CONSENT OF THE PROSECUTOR,
 the court shall consider and make  findings  of  fact  with  respect  to
 whether:
   [(i)]  (A) the defendant is an eligible defendant as defined in subdi-
 vision one of section 216.00 of this article;
   [(ii)] (B) the defendant has a history of alcohol or  substance  abuse
 or dependence;
   [(iii)]  (C)  such  alcohol  or  substance  abuse  or  dependence is a
 contributing factor to the defendant's criminal behavior;
   [(iv)] (D) the defendant's participation in judicial  diversion  could
 effectively address such abuse or dependence; [and]
   [(v)]  (E) institutional confinement of the defendant is or may not be
 necessary for the protection of the public; AND
   (F) ENTRY INTO THE DIVERSION PROGRAM POSES A RISK TO PUBLIC SAFETY.
   § 5. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.