NY State Senate Bill 2019-S2172B

Archive: Last Bill Status - In Senate Committee Alcoholism And Substance Abuse Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

View Actions

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 23, 2020	print number 2172b
Jan 23, 2020	amend and recommit to alcoholism and substance abuse
Jan 08, 2020	referred to alcoholism and substance abuse
Feb 11, 2019	reported and committed to rules
Feb 07, 2019	print number 2172a
Feb 07, 2019	amend and recommit to alcoholism and substance abuse
Jan 23, 2019	referred to alcoholism and substance abuse

Votes

- Feb 11, 2019 - Alcoholism And Substance Use Disorders Committee Vote
  S2172B
  
  4
  
  Aye
  
  2
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Alcoholism And Substance Use Disorders Committee Vote: Feb 11, 2019
      
      aye (4)
      
      Gaughran
      
      Harckham
      
      Liu
      
      Parker
      
      nay (2)
      
      Akshar
      
      Tedisco
      
      aye wr (1)
      
      Martinez

Bill Amendments

Original

B (Active)

co-Sponsors

2019-S2172 - Details

See Assembly Version of this Bill:: A1510
Current Committee:: Senate Alcoholism And Substance Abuse
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§216.00 & 216.05, CP L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S7795, A4237
2021-2022: S1682, A5511

2019-S2172 - Summary

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

2019-S2172 - Sponsor Memo

                                
 
BILL NUMBER: S2172

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to a judicial
diversion program for certain felony offenders

 
PURPOSE OR GENERAL IDEA:

To expand the number of eligible crimes for a person to be diverted for
substance use treatment and to update the term substance abuse to
substance use.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. expands the definition of "eligible defendant" to include
offenses found in sections 105.10, 105.13, 165.10, 165.11, 190.79, and
190.80 of the Penal Law;

Section 2. and 3. change the term substance abuse as it currently reads

in the Criminal Procedure Law to substance use as well as update the law
to include the Diagnostic and. Statistical Manual of Mental Disorders
(DSM) fifth edition, instead of the fourth edition.

Section 4. Includes effective date.

 
JUSTIFICATION:.:

In 2013, the American Psychiatric Association (APA) released a revised
Diagnostic and. Statistical Manual of Mental Disorders, fifth edition,
commonly referred to as the "DSM-5." In DSM-5, the APA combined the
terms for the disorders "substance abuse" and "substance dependency"
into one disorder, "substance use." Currently under New York law, a
person without a violent conviction history who is charged with one or
more of certain drug-related crimes may be evaluated and diverted for
treatment if he -or she has a "substance abuse disorder." The language
in this bill would provide that an eligible defendant may be evaluated
and ordered to treatment if he or she has a "substance use disorder."
This bill updates the law to use the terminology in the DSM-5 currently
in use among psychiatrists, psychologists, and substance abuse treatment
professionals. By using the correct terminology and diagnostic criteria,
this bill will help encourage judges to order treatment to persons who
use alcohol-or drugs in excess, rather than requiring them to become
fully addicted before they can receive appropriate treatment. Addi-
tionally, this bill expands what crimes that a court may divert an indi-
vidual to substance use treatment. According to legal d efense practi-
tioners, these non-violent crimes are commonly committed by individuals
needing money to support their substance use disorder.  This bill will
expand the accessibility of treatment diversion to those who can benefit
most from it, to prevent future involvement with the criminal justice
system.

 
PRIOR LEGISLATIVE HISTORY:

2017-18: S.7795/A4237(Richardson) - Referred to Alcoholism and Drug
Abuse

 
FISCAL IMPLICATIONS:
None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S2172 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2172
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2019
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Alcoholism  and  Substance
   Abuse
 
 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:
 
   Section 1. The opening paragraph of subdivision 1 and subdivision 2 of
 section  216.00  of the criminal procedure law, the opening paragraph of
 subdivision 1 as amended by chapter 90 of the laws of 2014 and  subdivi-
 sion  2  as  added by section 4 of part AAA of chapter 56 of the laws of
 2009, are amended to read as follows:
   "Eligible defendant" means any person who stands charged in an indict-
 ment or a superior court information with a class B, C, D  or  E  felony
 offense  defined in article one hundred seventy-nine, two hundred twenty
 or two hundred twenty-one of  the  penal  law,  AN  OFFENSE  DEFINED  IN
 SECTIONS 105.10 AND 105.13 OF THE PENAL LAW PROVIDED THAT THE UNDERLYING
 CRIME  FOR  THE CONSPIRACY CHARGE IS A CLASS B, C, D OR E FELONY OFFENSE
 DEFINED IN ARTICLE ONE HUNDRED SEVENTY-NINE, TWO HUNDRED TWENTY  OR  TWO
 HUNDRED TWENTY-ONE OF THE PENAL LAW, AUTO STRIPPING IN THE SECOND DEGREE
 AS  DEFINED  IN  SECTION  165.10 OF THE PENAL LAW, AUTO STRIPPING IN THE
 FIRST DEGREE AS DEFINED IN SECTION 165.11 OF  THE  PENAL  LAW,  IDENTITY
 THEFT  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION 190.79 OF THE PENAL
 LAW, IDENTITY THEFT IN THE FIRST DEGREE AS DEFINED IN SECTION 190.80  OF
 THE  PENAL LAW, or any other specified offense as defined in subdivision
 [four] FIVE of section 410.91 of  this  chapter,  provided,  however,  a
 defendant is not an "eligible defendant" if he or she:
   2.  "Alcohol  and  substance  [abuse]  USE evaluation" means a written
 assessment and report by a court-approved entity or licensed health care
 professional experienced in  the  treatment  of  alcohol  and  substance
 [abuse]  USE  DISORDER, or by an addiction and substance abuse counselor
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD04508-01-9

 S. 2172                             2
 
 credentialed by the office of alcoholism and  substance  abuse  services
 pursuant  to  section  19.07  of  the  mental  hygiene  law, which shall
 include:
   (a) an evaluation as to whether the defendant has a history of alcohol
 or substance [abuse or alcohol or substance dependence] USE DISORDER, as
 such  terms  are  defined  in  the  diagnostic and statistical manual of
 mental disorders, [fourth] FIFTH  edition,  and  a  co-occurring  mental
 disorder  or  mental illness and the relationship between such [abuse or
 dependence] USE and mental disorder or mental illness, if any;
   (b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
 substance  [abuse  or  dependence]  USE,  if  any,  could be effectively
 addressed by judicial diversion in accordance with this article;
   (c) a recommendation as to the treatment modality, level of  care  and
 length  of any proposed treatment to effectively address the defendant's
 alcohol or substance [abuse or  dependence]  USE  and  any  co-occurring
 mental disorder or illness; and
   (d)  any  other  information,  factor, circumstance, or recommendation
 deemed relevant by the assessing entity or specifically requested by the
 court.
   § 2. The opening paragraph 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:
   "Eligible defendant" means any person who stands charged in an indict-
 ment or a superior court information with a class B, C, D  or  E  felony
 offense  defined in article two hundred twenty or two hundred twenty-one
 of the penal law, AN OFFENSE DEFINED IN SECTIONS 105.10  AND  105.13  OF
 THE  PENAL  LAW  PROVIDED  THAT  THE UNDERLYING CRIME FOR THE CONSPIRACY
 CHARGE IS A CLASS B, C, D OR E FELONY OFFENSE  DEFINED  IN  ARTICLE  TWO
 HUNDRED  TWENTY  OR TWO HUNDRED TWENTY-ONE OF THE PENAL LAW, AUTO STRIP-
 PING IN THE SECOND DEGREE AS DEFINED IN SECTION 165.10 OF THE PENAL LAW,
 AUTO STRIPPING IN THE FIRST DEGREE AS DEFINED IN SECTION 165.11  OF  THE
 PENAL  LAW,  IDENTITY  THEFT  IN THE SECOND DEGREE AS DEFINED IN SECTION
 190.79 OF THE PENAL LAW, IDENTITY THEFT IN THE FIRST DEGREE  AS  DEFINED
 IN  SECTION  190.80  OF THE PENAL LAW, or any other specified offense as
 defined in subdivision [four] FIVE of section 410.91  of  this  chapter,
 provided,  however,  a defendant is not an "eligible defendant" if he or
 she:
   § 3. Section 216.05 of the criminal procedure law, as added by section
 4 of part AAA of chapter 56 of  the  laws  of  2009,  subdivision  5  as
 amended  by  chapter 67 of the laws of 2016, subdivision 8 as amended by
 chapter 315 of the laws of 2016, and paragraph (a) of subdivision  9  as
 amended  by  chapter  258  of  the  laws  of 2015, is amended to read as
 follows:
 § 216.05 Judicial diversion program; court procedures.
   1. At any time after the arraignment of  an  eligible  defendant,  but
 prior to the entry of a plea of guilty or the commencement of trial, the
 court at the request of the eligible defendant, may order an alcohol and
 substance  [abuse]  USE evaluation. An eligible defendant may decline to
 participate in such an evaluation  at  any  time.  The  defendant  shall
 provide  a written authorization, in compliance with the requirements of
 any applicable state or federal laws, rules or  regulations  authorizing
 disclosure of the results of the assessment to the defendant's attorney,
 the  prosecutor,  the  local probation department, the court, authorized
 court personnel and other individuals specified  in  such  authorization
 for  the  sole  purpose  of  determining whether the defendant should be
 offered judicial diversion for treatment for substance [abuse or depend-

 S. 2172                             3

 ence] USE, alcohol [abuse or dependence] USE and any co-occurring mental
 disorder or mental illness.
   2.  Upon  receipt  of  the completed alcohol and substance [abuse] USE
 evaluation report, the court shall provide a copy of the report  to  the
 eligible defendant and the prosecutor.
   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]  USE treatment pursuant to this
 article. At such a proceeding, which shall be held as soon as  practica-
 ble so as to facilitate early intervention in the event that the defend-
 ant  is  found  to  need alcohol or substance [abuse] USE treatment, the
 court may consider oral and written arguments, may take  testimony  from
 witnesses  offered  by  either  party,  and  may  consider  any relevant
 evidence including, 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]
 FIVE  of  section  410.91  of  this  chapter, OR SECTION 165.09, 165.10,
 190.79 OR 190.80 OF THE PENAL LAW, 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, the court shall consider and
 make findings of fact with respect to whether:
   (i)  the  defendant is an eligible defendant as defined in subdivision
 one of section 216.00 of this article;
   (ii) the defendant has a history of alcohol  or  substance  [abuse  or
 dependence] USE;
   (iii)  such  alcohol  or  substance  [abuse  or  dependence]  USE is a
 contributing factor to the defendant's criminal behavior;
   (iv) the defendant's participation in judicial diversion could  effec-
 tively address such [abuse or dependence] USE; and
   (v) institutional confinement of the defendant is or may not be neces-
 sary for the protection of the public.
   4.  When  an authorized court determines, pursuant to paragraph (b) of
 subdivision three of this section, that an eligible defendant should  be
 offered  alcohol or substance [abuse] USE treatment, or when the parties
 and the court agree to an eligible defendant's participation in  alcohol
 or substance [abuse] USE treatment, an eligible defendant may be allowed
 to  participate  in the judicial diversion program offered by this arti-
 cle.  Prior to the court's issuing an order granting judicial diversion,
 the eligible defendant shall be required to enter a plea  of  guilty  to
 the charge or charges; provided, however, that no such guilty plea shall
 be required when:
   (a)  the  people  and  the court consent to the entry of such an order
 without a plea of guilty; or
   (b) based on a finding of exceptional circumstances, the court  deter-
 mines  that a plea of guilty shall not be required. For purposes of this
 subdivision, exceptional circumstances exist  when,  regardless  of  the

 S. 2172                             4
 
 ultimate disposition of the case, the entry of a plea of guilty is like-
 ly to result in severe collateral consequences.
   5.  The  defendant shall agree on the record or in writing to abide by
 the release conditions set by the court, which, shall  include:  partic-
 ipation in a specified period of alcohol or substance [abuse] USE treat-
 ment  at  a specified program or programs identified by the court, which
 may include periods of detoxification, residential or outpatient  treat-
 ment,  or both, as determined after taking into account the views of the
 health care professional who conducted the alcohol and substance [abuse]
 USE evaluation and any health care professionals responsible for provid-
 ing such treatment or monitoring the defendant's progress in such treat-
 ment; and may include: (i) periodic court appearances, which may include
 periodic urinalysis; (ii) a requirement that the defendant refrain  from
 engaging  in  criminal behaviors; (iii) if the defendant needs treatment
 for opioid [abuse or dependence] USE, that he or she may participate  in
 and  receive  medically  prescribed  drug treatments under the care of a
 health care professional licensed or certified under title eight of  the
 education  law,  acting  within  his  or  her  lawful scope of practice,
 provided that no court shall require the use of any  specified  type  or
 brand of drug during the course of medically prescribed drug treatments.
   6.  Upon  an eligible defendant's agreement to abide by the conditions
 set by the court, the court shall issue a securing order  providing  for
 bail or release on the defendant's own recognizance and conditioning any
 release  upon  the  agreed  upon  conditions.  The  period of alcohol or
 substance [abuse] USE treatment shall begin as specified  by  the  court
 and  as  soon  as practicable after the defendant's release, taking into
 account the availability of treatment, so as to facilitate early  inter-
 vention  with  respect  to  the  defendant's  abuse or condition and the
 effectiveness of the treatment program. In the event  that  a  treatment
 program  is  not immediately available or becomes unavailable during the
 course of  the  defendant's  participation  in  the  judicial  diversion
 program,  the  court  may release the defendant pursuant to the securing
 order.
   7. When participating in judicial diversion treatment pursuant to this
 article, any resident of this state  who  is  covered  under  a  private
 health  insurance  policy  or contract issued for delivery in this state
 pursuant to article thirty-two, forty-three or forty-seven of the insur-
 ance law or article forty-four of the  public  health  law,  or  who  is
 covered  by a self-funded plan which provides coverage for the diagnosis
 and treatment of chemical abuse and chemical dependence however  defined
 in  such  policy;  shall  first seek reimbursement for such treatment in
 accordance with the provisions of such policy or contract.
   8. During the period of a defendant's participation  in  the  judicial
 diversion program, the court shall retain jurisdiction of the defendant,
 provided, however, that the court may allow such defendant to (i) reside
 in  another  jurisdiction,  or (ii) participate in alcohol and substance
 [abuse] USE treatment and other programs in the jurisdiction  where  the
 defendant resides or in any other jurisdiction, while participating in a
 judicial  diversion program under conditions set by the court and agreed
 to by the defendant pursuant  to  subdivisions  five  and  six  of  this
 section.  The  court may require the defendant to appear in court at any
 time to enable the court to monitor the defendant's progress in  alcohol
 or  substance  [abuse]  USE  treatment.  The court shall provide notice,
 reasonable under the circumstances, to the people, the treatment provid-
 er, the defendant and the defendant's  counsel  whenever  it  orders  or
 otherwise  requires the appearance of the defendant in court. Failure to

 S. 2172                             5
 
 appear as required without reasonable cause therefor shall constitute  a
 violation of the conditions of the court's agreement with the defendant.
   9.  (a)  If  at  any  time during the defendant's participation in the
 judicial diversion program, the court has reasonable grounds to  believe
 that  the  defendant  has  violated a release condition or has failed to
 appear before the court as requested, the court shall direct the defend-
 ant to appear or issue a bench warrant to a police officer or an  appro-
 priate  peace  officer  directing  him or her to take the defendant into
 custody and bring the defendant before  the  court  without  unnecessary
 delay;  provided, however, that under no circumstances shall a defendant
 who requires treatment for opioid [abuse or dependence] USE be deemed to
 have violated a release condition on the basis of  his  or  her  partic-
 ipation  in  medically  prescribed  drug  treatments under the care of a
 health care professional licensed or certified under title eight of  the
 education  law,  acting within his or her lawful scope of practice.  The
 provisions of subdivision one of section 530.60 of this chapter relating
 to revocation of recognizance or bail shall apply  to  such  proceedings
 under this subdivision.
   (b)  In determining whether a defendant violated a condition of his or
 her release under the judicial diversion program, the court may  conduct
 a  summary hearing consistent with due process and sufficient to satisfy
 the court that the defendant has, in fact, violated the condition.
   (c) If the court determines that the defendant has violated  a  condi-
 tion  of  his  or  her release under the judicial diversion program, the
 court may modify the conditions thereof, reconsider the order of  recog-
 nizance  or  bail  pursuant to subdivision two of section 510.30 of this
 chapter, or terminate the  defendant's  participation  in  the  judicial
 diversion  program;  and  when  applicable  proceed with the defendant's
 sentencing  in  accordance  with  the  agreement.  Notwithstanding   any
 provision  of  law  to  the  contrary, the court may impose any sentence
 authorized for the crime of  conviction  in  accordance  with  the  plea
 agreement,  or  any lesser sentence authorized to be imposed on a felony
 drug offender pursuant to paragraph (b) or (c)  of  subdivision  two  of
 section  70.70  of  the penal law taking into account the length of time
 the defendant spent in residential treatment and how  best  to  continue
 treatment  while  the defendant is serving that sentence. In determining
 what action to take for a violation of a release  condition,  the  court
 shall  consider  all  relevant circumstances, including the views of the
 prosecutor, the defense and the alcohol or substance [abuse] USE  treat-
 ment  provider,  and the extent to which persons who ultimately success-
 fully complete  a  drug  treatment  regimen  sometimes  relapse  by  not
 abstaining from alcohol or substance [abuse] USE or by failing to comply
 fully  with  all  requirements imposed by a treatment program. The court
 shall  also  consider  using  a  system  of  graduated  and  appropriate
 responses or sanctions designed to address such inappropriate behaviors,
 protect   public  safety  and  facilitate,  where  possible,  successful
 completion of the alcohol or substance [abuse] USE treatment program.
   (d) Nothing in this subdivision shall be  construed  as  preventing  a
 court  from  terminating  a  defendant's  participation  in the judicial
 diversion program for violating a release condition when such  a  termi-
 nation  is  necessary  to  preserve public safety. Nor shall anything in
 this subdivision be construed as precluding the prosecution of a defend-
 ant for the commission of a different offense while participating in the
 judicial diversion program.
   (e) A defendant may at any time advise the court that he or she wishes
 to terminate participation in the judicial diversion program,  at  which

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

co-Sponsors

2019-S2172A - Details

See Assembly Version of this Bill:: A1510
Current Committee:: Senate Alcoholism And Substance Abuse
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§216.00 & 216.05, CP L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S7795, A4237
2021-2022: S1682, A5511

2019-S2172A - Summary

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

2019-S2172A - Sponsor Memo

                                
 
BILL NUMBER: S2172A

SPONSOR: BAILEY
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to a judicial diversion program for certain felony offenders

 
PURPOSE OR GENERAL IDEA:

To expand the number of eligible crimes for a person to be diverted for
substance use treatment and to update the term substance abuse to
substance use.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. expands the definition of "eligible defendant" to include
offenses found in sections 105.10, 105.13, 165.10, 165.11, 190.79, and
190.80 of the Penal Law;

Section 2. and 3. change the term substance abuse as it currently reads
in the Criminal Procedure Law to substance use as well as update the law
to include the Diagnostic and. Statistical Manual of Mental Disorders

(DSM) fifth edition, instead of the fourth edition.

Section 4. Includes effective date.

 
JUSTIFICATION:

In 2013, the American Psychiatric Association (APA) released a revised
Diagnostic and. Statistical Manual of Mental Disorders, fifth edition,
commonly referred to as the "DSM-S." In DSM-5, the APA combined the
terms for the disorders "substance abuse" and "substance dependency"
into one disorder, "substance use." Currently under New York law, a
person without a violent conviction history who is charged with one or
more of certain drug-related crimes may be evaluated and diverted for
treatment if he -or she has a "substance abuse disorder." The language
in this bill would provide that an eligible defendant may be evaluated
and ordered to treatment if he or she has a "substance use disorder."
This bill updates the law to use the terminology in the DSM-5 currently
in use among psychiatrists, psychologists, and substance abuse treatment
professionals. By using the correct terminology and diagnostic criteria,
this bill will help encourage judges to order treatment to persons who
use alcohol-or drugs in excess, rather than requiring them to become
fully addicted before they can receive appropriate treatment. Addi-
tionally, this bill expands what crimes that a court may divert an indi-
vidual to substance use treatment. According to legal d efense practi-
tioners, these non-violent crimes are commonly committed by individuals
needing money to support their substance use disorder.  This bill will
expand the accessibility of treatment diversion to those who can benefit
most from it, to prevent future involvement with the criminal justice
system.

 
PRIOR LEGISLATIVE HISTORY:

2017-18: S.7795/A4237(Richardson) - Referred to Alcoholism and Drug
Abuse

 
FISCAL IMPLICATIONS:

None.
 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S2172A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2172--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             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:
 
   Section 1. The opening paragraph of subdivision 1 and subdivision 2 of
 section  216.00  of the criminal procedure law, the opening paragraph of
 subdivision 1 as amended by chapter 90 of the laws of 2014 and  subdivi-
 sion  2  as  added by section 4 of part AAA of chapter 56 of the laws of
 2009, are amended to read as follows:
   "Eligible defendant" means any person who stands charged in an indict-
 ment or a superior court information with a class B, C, D  or  E  felony
 offense  defined in article one hundred seventy-nine, two hundred twenty
 or two hundred twenty-one of  the  penal  law,  AN  OFFENSE  DEFINED  IN
 SECTIONS 105.10 AND 105.13 OF THE PENAL LAW PROVIDED THAT THE UNDERLYING
 CRIME  FOR  THE CONSPIRACY CHARGE IS A CLASS B, C, D OR E FELONY OFFENSE
 DEFINED IN ARTICLE ONE HUNDRED SEVENTY-NINE, TWO HUNDRED TWENTY  OR  TWO
 HUNDRED TWENTY-ONE OF THE PENAL LAW, AUTO STRIPPING IN THE SECOND DEGREE
 AS  DEFINED  IN  SECTION  165.10 OF THE PENAL LAW, AUTO STRIPPING IN THE
 FIRST DEGREE AS DEFINED IN SECTION 165.11 OF  THE  PENAL  LAW,  IDENTITY
 THEFT  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION 190.79 OF THE PENAL
 LAW, IDENTITY THEFT IN THE FIRST DEGREE AS DEFINED IN SECTION 190.80  OF
 THE  PENAL LAW, or any other specified offense as defined in subdivision
 [four] FIVE of section 410.91 of  this  chapter,  provided,  however,  a
 defendant is not an "eligible defendant" if he or she:
   2.  "Alcohol  and  substance  [abuse]  USE evaluation" means a written
 assessment and report by a court-approved entity or licensed health care
 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
 
 [abuse]  USE  DISORDER, or by an addiction and substance abuse counselor
 credentialed by the office of alcoholism and  substance  abuse  services
 pursuant  to  section  19.07  of  the  mental  hygiene  law, which shall
 include:
   (a) an evaluation as to whether the defendant has a history of alcohol
 or substance [abuse or alcohol or substance dependence] USE DISORDER, as
 such  terms  are  defined  in  the  diagnostic and statistical manual of
 mental disorders, [fourth] FIFTH  edition,  and  a  co-occurring  mental
 disorder  or  mental illness and the relationship between such [abuse or
 dependence] USE and mental disorder or mental illness, if any;
   (b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
 substance  [abuse  or  dependence]  USE,  if  any,  could be effectively
 addressed by judicial diversion in accordance with this article;
   (c) a recommendation as to the treatment modality, level of  care  and
 length  of any proposed treatment to effectively address the defendant's
 alcohol or substance [abuse or  dependence]  USE  and  any  co-occurring
 mental disorder or illness; and
   (d)  any  other  information,  factor, circumstance, or recommendation
 deemed relevant by the assessing entity or specifically requested by the
 court.
   § 2. The opening paragraph 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:
   "Eligible defendant" means any person who stands charged in an indict-
 ment or a superior court information with a class B, C, D  or  E  felony
 offense  defined in article two hundred twenty or two hundred twenty-one
 of the penal law, AN OFFENSE DEFINED IN SECTIONS 105.10  AND  105.13  OF
 THE  PENAL  LAW  PROVIDED  THAT  THE UNDERLYING CRIME FOR THE CONSPIRACY
 CHARGE IS A CLASS B, C, D OR E FELONY OFFENSE  DEFINED  IN  ARTICLE  TWO
 HUNDRED  TWENTY  OR TWO HUNDRED TWENTY-ONE OF THE PENAL LAW, AUTO STRIP-
 PING IN THE SECOND DEGREE AS DEFINED IN SECTION 165.10 OF THE PENAL LAW,
 AUTO STRIPPING IN THE FIRST DEGREE AS DEFINED IN SECTION 165.11  OF  THE
 PENAL  LAW,  IDENTITY  THEFT  IN THE SECOND DEGREE AS DEFINED IN SECTION
 190.79 OF THE PENAL LAW, IDENTITY THEFT IN THE FIRST DEGREE  AS  DEFINED
 IN  SECTION  190.80  OF THE PENAL LAW, or any other specified offense as
 defined in subdivision [four] FIVE of section 410.91  of  this  chapter,
 provided,  however,  a defendant is not an "eligible defendant" if he or
 she:
   § 3. Section 216.05 of the criminal procedure law, as added by section
 4 of part AAA of chapter 56 of  the  laws  of  2009,  subdivision  5  as
 amended  by  chapter 67 of the laws of 2016, subdivision 8 as amended by
 chapter 315 of the laws of 2016, and paragraph (a) of subdivision  9  as
 amended  by  chapter  258  of  the  laws  of 2015, is amended to read as
 follows:
 § 216.05 Judicial diversion program; court procedures.
   1. At any time after the arraignment of  an  eligible  defendant,  but
 prior to the entry of a plea of guilty or the commencement of trial, the
 court at the request of the eligible defendant, may order an alcohol and
 substance  [abuse]  USE evaluation. An eligible defendant may decline to
 participate in such an evaluation  at  any  time.  The  defendant  shall
 provide  a written authorization, in compliance with the requirements of
 any applicable state or federal laws, rules or  regulations  authorizing
 disclosure of the results of the assessment to the defendant's attorney,
 the  prosecutor,  the  local probation department, the court, authorized
 court personnel and other individuals specified  in  such  authorization
 for  the  sole  purpose  of  determining whether the defendant should be

 S. 2172--A                          3
 
 offered judicial diversion for treatment for substance [abuse or depend-
 ence] USE, alcohol [abuse or dependence] USE and any co-occurring mental
 disorder or mental illness.
   2.  Upon  receipt  of  the completed alcohol and substance [abuse] USE
 evaluation report, the court shall provide a copy of the report  to  the
 eligible defendant and the prosecutor.
   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]  USE treatment pursuant to this
 article. At such a proceeding, which shall be held as soon as  practica-
 ble so as to facilitate early intervention in the event that the defend-
 ant  is  found  to  need alcohol or substance [abuse] USE treatment, the
 court may consider oral and written arguments, may take  testimony  from
 witnesses  offered  by  either  party,  and  may  consider  any relevant
 evidence including, 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]
 FIVE  of  section  410.91  of  this  chapter, OR SECTION 165.10, 165.11,
 190.79 OR 190.80 OF THE PENAL LAW, 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, the court shall consider and
 make findings of fact with respect to whether:
   (i)  the  defendant is an eligible defendant as defined in subdivision
 one of section 216.00 of this article;
   (ii) the defendant has a history of alcohol  or  substance  [abuse  or
 dependence] USE;
   (iii)  such  alcohol  or  substance  [abuse  or  dependence]  USE is a
 contributing factor to the defendant's criminal behavior;
   (iv) the defendant's participation in judicial diversion could  effec-
 tively address such [abuse or dependence] USE; and
   (v) institutional confinement of the defendant is or may not be neces-
 sary for the protection of the public.
   4.  When  an authorized court determines, pursuant to paragraph (b) of
 subdivision three of this section, that an eligible defendant should  be
 offered  alcohol or substance [abuse] USE treatment, or when the parties
 and the court agree to an eligible defendant's participation in  alcohol
 or substance [abuse] USE treatment, an eligible defendant may be allowed
 to  participate  in the judicial diversion program offered by this arti-
 cle.  Prior to the court's issuing an order granting judicial diversion,
 the eligible defendant shall be required to enter a plea  of  guilty  to
 the charge or charges; provided, however, that no such guilty plea shall
 be required when:
   (a)  the  people  and  the court consent to the entry of such an order
 without a plea of guilty; or
   (b) based on a finding of exceptional circumstances, the court  deter-
 mines  that a plea of guilty shall not be required. For purposes of this
 subdivision, exceptional circumstances exist  when,  regardless  of  the

 S. 2172--A                          4
 
 ultimate disposition of the case, the entry of a plea of guilty is like-
 ly to result in severe collateral consequences.
   5.  The  defendant shall agree on the record or in writing to abide by
 the release conditions set by the court, which, shall  include:  partic-
 ipation in a specified period of alcohol or substance [abuse] USE treat-
 ment  at  a specified program or programs identified by the court, which
 may include periods of detoxification, residential or outpatient  treat-
 ment,  or both, as determined after taking into account the views of the
 health care professional who conducted the alcohol and substance [abuse]
 USE evaluation and any health care professionals responsible for provid-
 ing such treatment or monitoring the defendant's progress in such treat-
 ment; and may include: (i) periodic court appearances, which may include
 periodic urinalysis; (ii) a requirement that the defendant refrain  from
 engaging  in  criminal behaviors; (iii) if the defendant needs treatment
 for opioid [abuse or dependence] USE, that he or she may participate  in
 and  receive  medically  prescribed  drug treatments under the care of a
 health care professional licensed or certified under title eight of  the
 education  law,  acting  within  his  or  her  lawful scope of practice,
 provided that no court shall require the use of any  specified  type  or
 brand of drug during the course of medically prescribed drug treatments.
   6.  Upon  an eligible defendant's agreement to abide by the conditions
 set by the court, the court shall issue a securing order  providing  for
 bail or release on the defendant's own recognizance and conditioning any
 release  upon  the  agreed  upon  conditions.  The  period of alcohol or
 substance [abuse] USE treatment shall begin as specified  by  the  court
 and  as  soon  as practicable after the defendant's release, taking into
 account the availability of treatment, so as to facilitate early  inter-
 vention  with  respect  to  the  defendant's  abuse or condition and the
 effectiveness of the treatment program. In the event  that  a  treatment
 program  is  not immediately available or becomes unavailable during the
 course of  the  defendant's  participation  in  the  judicial  diversion
 program,  the  court  may release the defendant pursuant to the securing
 order.
   7. When participating in judicial diversion treatment pursuant to this
 article, any resident of this state  who  is  covered  under  a  private
 health  insurance  policy  or contract issued for delivery in this state
 pursuant to article thirty-two, forty-three or forty-seven of the insur-
 ance law or article forty-four of the  public  health  law,  or  who  is
 covered  by a self-funded plan which provides coverage for the diagnosis
 and treatment of chemical abuse and chemical dependence however  defined
 in  such  policy;  shall  first seek reimbursement for such treatment in
 accordance with the provisions of such policy or contract.
   8. During the period of a defendant's participation  in  the  judicial
 diversion program, the court shall retain jurisdiction of the defendant,
 provided, however, that the court may allow such defendant to (i) reside
 in  another  jurisdiction,  or (ii) participate in alcohol and substance
 [abuse] USE treatment and other programs in the jurisdiction  where  the
 defendant resides or in any other jurisdiction, while participating in a
 judicial  diversion program under conditions set by the court and agreed
 to by the defendant pursuant  to  subdivisions  five  and  six  of  this
 section.  The  court may require the defendant to appear in court at any
 time to enable the court to monitor the defendant's progress in  alcohol
 or  substance  [abuse]  USE  treatment.  The court shall provide notice,
 reasonable under the circumstances, to the people, the treatment provid-
 er, the defendant and the defendant's  counsel  whenever  it  orders  or
 otherwise  requires the appearance of the defendant in court. Failure to

 S. 2172--A                          5
 
 appear as required without reasonable cause therefor shall constitute  a
 violation of the conditions of the court's agreement with the defendant.
   9.  (a)  If  at  any  time during the defendant's participation in the
 judicial diversion program, the court has reasonable grounds to  believe
 that  the  defendant  has  violated a release condition or has failed to
 appear before the court as requested, the court shall direct the defend-
 ant to appear or issue a bench warrant to a police officer or an  appro-
 priate  peace  officer  directing  him or her to take the defendant into
 custody and bring the defendant before  the  court  without  unnecessary
 delay;  provided, however, that under no circumstances shall a defendant
 who requires treatment for opioid [abuse or dependence] USE be deemed to
 have violated a release condition on the basis of  his  or  her  partic-
 ipation  in  medically  prescribed  drug  treatments under the care of a
 health care professional licensed or certified under title eight of  the
 education  law,  acting within his or her lawful scope of practice.  The
 provisions of subdivision one of section 530.60 of this chapter relating
 to revocation of recognizance or bail shall apply  to  such  proceedings
 under this subdivision.
   (b)  In determining whether a defendant violated a condition of his or
 her release under the judicial diversion program, the court may  conduct
 a  summary hearing consistent with due process and sufficient to satisfy
 the court that the defendant has, in fact, violated the condition.
   (c) If the court determines that the defendant has violated  a  condi-
 tion  of  his  or  her release under the judicial diversion program, the
 court may modify the conditions thereof, reconsider the order of  recog-
 nizance  or  bail  pursuant to subdivision two of section 510.30 of this
 chapter, or terminate the  defendant's  participation  in  the  judicial
 diversion  program;  and  when  applicable  proceed with the defendant's
 sentencing  in  accordance  with  the  agreement.  Notwithstanding   any
 provision  of  law  to  the  contrary, the court may impose any sentence
 authorized for the crime of  conviction  in  accordance  with  the  plea
 agreement,  or  any lesser sentence authorized to be imposed on a felony
 drug offender pursuant to paragraph (b) or (c)  of  subdivision  two  of
 section  70.70  of  the penal law taking into account the length of time
 the defendant spent in residential treatment and how  best  to  continue
 treatment  while  the defendant is serving that sentence. In determining
 what action to take for a violation of a release  condition,  the  court
 shall  consider  all  relevant circumstances, including the views of the
 prosecutor, the defense and the alcohol or substance [abuse] USE  treat-
 ment  provider,  and the extent to which persons who ultimately success-
 fully complete  a  drug  treatment  regimen  sometimes  relapse  by  not
 abstaining from alcohol or substance [abuse] USE or by failing to comply
 fully  with  all  requirements imposed by a treatment program. The court
 shall  also  consider  using  a  system  of  graduated  and  appropriate
 responses or sanctions designed to address such inappropriate behaviors,
 protect   public  safety  and  facilitate,  where  possible,  successful
 completion of the alcohol or substance [abuse] USE treatment program.
   (d) Nothing in this subdivision shall be  construed  as  preventing  a
 court  from  terminating  a  defendant's  participation  in the judicial
 diversion program for violating a release condition when such  a  termi-
 nation  is  necessary  to  preserve public safety. Nor shall anything in
 this subdivision be construed as precluding the prosecution of a defend-
 ant for the commission of a different offense while participating in the
 judicial diversion program.
   (e) A defendant may at any time advise the court that he or she wishes
 to terminate participation in the judicial diversion program,  at  which

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

co-Sponsors

2019-S2172B (ACTIVE) - Details

See Assembly Version of this Bill:: A1510
Current Committee:: Senate Alcoholism And Substance Abuse
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§216.00 & 216.05, CP L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S7795, A4237
2021-2022: S1682, A5511

2019-S2172B (ACTIVE) - Summary

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

2019-S2172B (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S2172B

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to a judicial
diversion program for certain felony offenders

 
PURPOSE OR GENERAL IDEA:

To expand the number of eligible crimes for a person to be diverted for
substance use treatment and to update the term substance abuse to
substance use.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section 1. expands the definition of "eligible defendant" to include
offenses found in sections 105.10, 105.13, 165.10, 165.11, 190.79, and
190.80 of the Penal Law;

Section 2. and 3. change the term substance abuse as it currently reads

in the Criminal Procedure Law to substance use as well as update the law
to include the Diagnostic and. Statistical Manual of Mental Disorders
(DSM) fifth edition, instead of the fourth edition.

Section 4. Includes effective date.

 
JUSTIFICATION:

In 2013, the American Psychiatric Association (APA) released a revised
Diagnostic and. Statistical Manual of Mental Disorders, fifth edition,
commonly referred to as the "DSM-S." In DSM-5, the APA combined the
terms for the disorders "substance abuse" and "substance dependency"
into one disorder, "substance use." Currently under New York law, a
person without a violent conviction history who is charged with one or
more of certain drug-related crimes may be evaluated and diverted for
treatment if he -or she has a "substance abuse disorder." The language
in this bill would provide that an eligible defendant may be evaluated
and ordered to treatment if he or she has a "substance use disorder."
This bill updates the law to use the terminology in the DSM-5 currently
in use among psychiatrists, psychologists, and substance abuse treatment
professionals. By using the correct terminology and diagnostic criteria,
this bill will help encourage judges to order treatment to persons who
use alcohol-or drugs in excess, rather than requiring them to become
fully addicted before they can receive appropriate treatment. Addi-
tionally, this bill expands what crimes that a court may divert an indi-
vidual to substance use treatment. According to legal defense practi-
tioners, these non-violent crimes are commonly committed by individuals
needing money to support their substance use disorder. This bill will
expand the accessibility of treatment diversion to those who can benefit
most from it, to prevent future involvement with the criminal justice
system.

 
PRIOR LEGISLATIVE HISTORY:

2017-18: 8.7795/A4237(Richardson) - Referred to Alcoholism and Drug
Abuse

 
FISCAL IMPLICATIONS:
None.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2019-S2172B (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2172--B
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 23, 2019
                                ___________
 
 Introduced  by  Sens.  BAILEY,  MYRIE,  RIVERA -- read twice and ordered
   printed, and when printed to be committed to the Committee on Alcohol-
   ism and Substance Abuse -- committee discharged, bill amended, ordered
   reprinted as amended and recommitted to said committee --  recommitted
   to  the Committee on Alcoholism and Substance Abuse in accordance with
   Senate Rule 6, sec. 8 -- 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:
 
   Section 1. The opening paragraph of subdivision 1 and subdivision 2 of
 section  216.00  of the criminal procedure law, the opening paragraph of
 subdivision 1 as amended by chapter 90 of the laws of 2014 and  subdivi-
 sion  2  as  added by section 4 of part AAA of chapter 56 of the laws of
 2009, are amended to read as follows:
   "Eligible defendant" means any person who stands charged in an indict-
 ment or a superior court information with a class B, C, D  or  E  felony
 offense  defined in article one hundred seventy-nine, two hundred twenty
 or two hundred twenty-one of  the  penal  law,  AN  OFFENSE  DEFINED  IN
 SECTIONS 105.10 AND 105.13 OF THE PENAL LAW PROVIDED THAT THE UNDERLYING
 CRIME  FOR  THE CONSPIRACY CHARGE IS A CLASS B, C, D OR E FELONY OFFENSE
 DEFINED IN ARTICLE ONE HUNDRED SEVENTY-NINE, TWO HUNDRED TWENTY  OR  TWO
 HUNDRED TWENTY-ONE OF THE PENAL LAW, AUTO STRIPPING IN THE SECOND DEGREE
 AS  DEFINED  IN  SECTION  165.10 OF THE PENAL LAW, AUTO STRIPPING IN THE
 FIRST DEGREE AS DEFINED IN SECTION 165.11 OF  THE  PENAL  LAW,  IDENTITY
 THEFT  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION 190.79 OF THE PENAL
 LAW, IDENTITY THEFT IN THE FIRST DEGREE AS DEFINED IN SECTION 190.80  OF
 THE  PENAL LAW, or any other specified offense as defined in subdivision
 [four] FIVE of section 410.91 of  this  chapter,  provided,  however,  a
 defendant is not an "eligible defendant" if he or she:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD04508-05-0

 S. 2172--B                          2
 
   2.  "Alcohol  and  substance  [abuse]  USE evaluation" means a written
 assessment and report by a court-approved entity or licensed health care
 professional experienced in  the  treatment  of  alcohol  and  substance
 [abuse]  USE  DISORDER, or by an addiction and substance abuse counselor
 credentialed  by the office of [alcoholism and substance abuse services]
 ADDICTION SERVICES AND SUPPORTS pursuant to section 19.07 of the  mental
 hygiene law, which shall include:
   (a) an evaluation as to whether the defendant has a history of alcohol
 or substance [abuse or alcohol or substance dependence] USE DISORDER, as
 such  terms  are  defined  in  the  diagnostic and statistical manual of
 mental disorders, [fourth] FIFTH  edition,  and  a  co-occurring  mental
 disorder  or  mental illness and the relationship between such [abuse or
 dependence] USE and mental disorder or mental illness, if any;
   (b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
 substance  [abuse  or  dependence]  USE,  if  any,  could be effectively
 addressed by judicial diversion in accordance with this article;
   (c) a recommendation as to the treatment modality, level of  care  and
 length  of any proposed treatment to effectively address the defendant's
 alcohol or substance [abuse or  dependence]  USE  and  any  co-occurring
 mental disorder or illness; and
   (d)  any  other  information,  factor, circumstance, or recommendation
 deemed relevant by the assessing entity or specifically requested by the
 court.
   § 2. The opening paragraph 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:
   "Eligible defendant" means any person who stands charged in an indict-
 ment or a superior court information with a class B, C, D  or  E  felony
 offense  defined in article two hundred twenty or two hundred twenty-one
 of the penal law, AN OFFENSE DEFINED IN SECTIONS 105.10  AND  105.13  OF
 THE  PENAL  LAW  PROVIDED  THAT  THE UNDERLYING CRIME FOR THE CONSPIRACY
 CHARGE IS A CLASS B, C, D OR E FELONY OFFENSE  DEFINED  IN  ARTICLE  TWO
 HUNDRED  TWENTY  OR TWO HUNDRED TWENTY-ONE OF THE PENAL LAW, AUTO STRIP-
 PING IN THE SECOND DEGREE AS DEFINED IN SECTION 165.10 OF THE PENAL LAW,
 AUTO STRIPPING IN THE FIRST DEGREE AS DEFINED IN SECTION 165.11  OF  THE
 PENAL  LAW,  IDENTITY  THEFT  IN THE SECOND DEGREE AS DEFINED IN SECTION
 190.79 OF THE PENAL LAW, IDENTITY THEFT IN THE FIRST DEGREE  AS  DEFINED
 IN  SECTION  190.80  OF THE PENAL LAW, or any other specified offense as
 defined in subdivision [four] FIVE of section 410.91  of  this  chapter,
 provided,  however,  a defendant is not an "eligible defendant" if he or
 she:
   § 3. Section 216.05 of the criminal procedure law, as added by section
 4 of part AAA of chapter 56 of  the  laws  of  2009,  subdivision  5  as
 amended  by  chapter 67 of the laws of 2016, subdivision 8 as amended by
 chapter 315 of the laws of 2016, and paragraph (a) of subdivision  9  as
 amended  by section 21 of part JJJ of chapter 59 of the laws of 2019, is
 amended to read as follows:
 § 216.05 Judicial diversion program; court procedures.
   1. At any time after the arraignment of  an  eligible  defendant,  but
 prior to the entry of a plea of guilty or the commencement of trial, the
 court at the request of the eligible defendant, may order an alcohol and
 substance  [abuse]  USE evaluation. An eligible defendant may decline to
 participate in such an evaluation  at  any  time.  The  defendant  shall
 provide  a written authorization, in compliance with the requirements of
 any applicable state or federal laws, rules or  regulations  authorizing
 disclosure of the results of the assessment to the defendant's attorney,

 S. 2172--B                          3
 
 the  prosecutor,  the  local probation department, the court, authorized
 court personnel and other individuals specified  in  such  authorization
 for  the  sole  purpose  of  determining whether the defendant should be
 offered judicial diversion for treatment for substance [abuse or depend-
 ence] USE, alcohol [abuse or dependence] USE and any co-occurring mental
 disorder or mental illness.
   2.  Upon  receipt  of  the completed alcohol and substance [abuse] USE
 evaluation report, the court shall provide a copy of the report  to  the
 eligible defendant and the prosecutor.
   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]  USE treatment pursuant to this
 article. At such a proceeding, which shall be held as soon as  practica-
 ble so as to facilitate early intervention in the event that the defend-
 ant  is  found  to  need alcohol or substance [abuse] USE treatment, the
 court may consider oral and written arguments, may take  testimony  from
 witnesses  offered  by  either  party,  and  may  consider  any relevant
 evidence including, 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]
 FIVE  of  section  410.91  of  this  chapter, OR SECTION 165.10, 165.11,
 190.79 OR 190.80 OF THE PENAL LAW, 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, the court shall consider and
 make findings of fact with respect to whether:
   (i)  the  defendant is an eligible defendant as defined in subdivision
 one of section 216.00 of this article;
   (ii) the defendant has a history of alcohol  or  substance  [abuse  or
 dependence] USE;
   (iii)  such  alcohol  or  substance  [abuse  or  dependence]  USE is a
 contributing factor to the defendant's criminal behavior;
   (iv) the defendant's participation in judicial diversion could  effec-
 tively address such [abuse or dependence] USE; and
   (v) institutional confinement of the defendant is or may not be neces-
 sary for the protection of the public.
   4.  When  an authorized court determines, pursuant to paragraph (b) of
 subdivision three of this section, that an eligible defendant should  be
 offered  alcohol or substance [abuse] USE treatment, or when the parties
 and the court agree to an eligible defendant's participation in  alcohol
 or substance [abuse] USE treatment, an eligible defendant may be allowed
 to  participate  in the judicial diversion program offered by this arti-
 cle.  Prior to the court's issuing an order granting judicial diversion,
 the eligible defendant shall be required to enter a plea  of  guilty  to
 the charge or charges; provided, however, that no such guilty plea shall
 be required when:
   (a)  the  people  and  the court consent to the entry of such an order
 without a plea of guilty; or

 S. 2172--B                          4
 
   (b) based on a finding of exceptional circumstances, the court  deter-
 mines  that a plea of guilty shall not be required. For purposes of this
 subdivision, exceptional circumstances exist  when,  regardless  of  the
 ultimate disposition of the case, the entry of a plea of guilty is like-
 ly to result in severe collateral consequences.
   5.  The  defendant shall agree on the record or in writing to abide by
 the release conditions set by the court, which, shall  include:  partic-
 ipation in a specified period of alcohol or substance [abuse] USE treat-
 ment  at  a specified program or programs identified by the court, which
 may include periods of detoxification, residential or outpatient  treat-
 ment,  or both, as determined after taking into account the views of the
 health care professional who conducted the alcohol and substance [abuse]
 USE evaluation and any health care professionals responsible for provid-
 ing such treatment or monitoring the defendant's progress in such treat-
 ment; and may include: (i) periodic court appearances, which may include
 periodic urinalysis; (ii) a requirement that the defendant refrain  from
 engaging  in  criminal behaviors; (iii) if the defendant needs treatment
 for opioid [abuse or dependence] USE, that he or she may participate  in
 and  receive  medically  prescribed  drug treatments under the care of a
 health care professional licensed or certified under title eight of  the
 education  law,  acting  within  his  or  her  lawful scope of practice,
 provided that no court shall require the use of any  specified  type  or
 brand of drug during the course of medically prescribed drug treatments.
   6.  Upon  an eligible defendant's agreement to abide by the conditions
 set by the court, the court shall issue a securing order  providing  for
 bail or release on the defendant's own recognizance and conditioning any
 release  upon  the  agreed  upon  conditions.  The  period of alcohol or
 substance [abuse] USE treatment shall begin as specified  by  the  court
 and  as  soon  as practicable after the defendant's release, taking into
 account the availability of treatment, so as to facilitate early  inter-
 vention  with respect to the defendant's [abuse] SUBSTANCE USE or condi-
 tion and the effectiveness of the treatment program. In the event that a
 treatment program is not immediately available  or  becomes  unavailable
 during  the  course  of  the  defendant's  participation in the judicial
 diversion program, the court may release the defendant pursuant  to  the
 securing order.
   7. When participating in judicial diversion treatment pursuant to this
 article,  any  resident  of  this  state  who is covered under a private
 health insurance policy or contract issued for delivery  in  this  state
 pursuant to article thirty-two, forty-three or forty-seven of the insur-
 ance  law  or  article  forty-four  of  the public health law, or who is
 covered by a self-funded plan which provides coverage for the  diagnosis
 and  treatment of chemical abuse and chemical dependence however defined
 in such policy; shall first seek reimbursement  for  such  treatment  in
 accordance with the provisions of such policy or contract.
   8.  During  the  period of a defendant's participation in the judicial
 diversion program, the court shall retain jurisdiction of the defendant,
 provided, however, that the court may allow such defendant to (i) reside
 in another jurisdiction, or (ii) participate in  alcohol  and  substance
 [abuse]  USE  treatment and other programs in the jurisdiction where the
 defendant resides or in any other jurisdiction, while participating in a
 judicial diversion program under conditions set by the court and  agreed
 to  by  the  defendant  pursuant  to  subdivisions  five and six of this
 section. The court may require the defendant to appear in court  at  any
 time  to enable the court to monitor the defendant's progress in alcohol
 or substance [abuse] USE treatment.  The  court  shall  provide  notice,

 S. 2172--B                          5
 
 reasonable under the circumstances, to the people, the treatment provid-
 er,  the  defendant  and  the  defendant's counsel whenever it orders or
 otherwise requires the appearance of the defendant in court. Failure  to
 appear  as required without reasonable cause therefor shall constitute a
 violation of the conditions of the court's agreement with the defendant.
   9. (a) If at any time during  the  defendant's  participation  in  the
 judicial  diversion program, the court has reasonable grounds to believe
 that the defendant has violated a  release  condition  in  an  important
 respect or has willfully failed to appear before the court as requested,
 the  court  except  as  provided in subdivision two of section 510.50 of
 this chapter regarding a failure to appear, shall direct  the  defendant
 to appear or issue a bench warrant to a police officer or an appropriate
 peace  officer  directing  him or her to take the defendant into custody
 and bring the defendant before  the  court  without  unnecessary  delay;
 provided,  however,  that  under  no circumstances shall a defendant who
 requires treatment for opioid [abuse or dependence]  USE  be  deemed  to
 have  violated  a  release  condition on the basis of his or her partic-
 ipation in medically prescribed drug treatments  under  the  care  of  a
 health  care professional licensed or certified under title eight of the
 education law, acting within his or her lawful scope  of  practice.  The
 relevant  provisions of section 530.60 of this chapter relating to issu-
 ance of securing orders shall  apply  to  such  proceedings  under  this
 subdivision.
   (b)  In determining whether a defendant violated a condition of his or
 her release under the judicial diversion program, the court may  conduct
 a  summary hearing consistent with due process and sufficient to satisfy
 the court that the defendant has, in fact, violated the condition.
   (c) If the court determines that the defendant has violated  a  condi-
 tion  of  his  or  her release under the judicial diversion program, the
 court may modify the conditions thereof, reconsider the order of  recog-
 nizance  or  bail  pursuant to subdivision two of section 510.30 of this
 chapter, or terminate the  defendant's  participation  in  the  judicial
 diversion  program;  and  when  applicable  proceed with the defendant's
 sentencing  in  accordance  with  the  agreement.  Notwithstanding   any
 provision  of  law  to  the  contrary, the court may impose any sentence
 authorized for the crime of  conviction  in  accordance  with  the  plea
 agreement,  or  any lesser sentence authorized to be imposed on a felony
 drug offender pursuant to paragraph (b) or (c)  of  subdivision  two  of
 section  70.70  of  the penal law taking into account the length of time
 the defendant spent in residential treatment and how  best  to  continue
 treatment  while  the defendant is serving that sentence. In determining
 what action to take for a violation of a release  condition,  the  court
 shall  consider  all  relevant circumstances, including the views of the
 prosecutor, the defense and the alcohol or substance [abuse] USE  treat-
 ment  provider,  and the extent to which persons who ultimately success-
 fully complete  a  drug  treatment  regimen  sometimes  relapse  by  not
 abstaining from alcohol or substance [abuse] USE or by failing to comply
 fully  with  all  requirements imposed by a treatment program. The court
 shall  also  consider  using  a  system  of  graduated  and  appropriate
 responses or sanctions designed to address such inappropriate behaviors,
 protect   public  safety  and  facilitate,  where  possible,  successful
 completion of the alcohol or substance [abuse] USE treatment program.
   (d) Nothing in this subdivision shall be  construed  as  preventing  a
 court  from  terminating  a  defendant's  participation  in the judicial
 diversion program for violating a release condition when such  a  termi-
 nation  is  necessary  to  preserve public safety. Nor shall anything in

 S. 2172--B                          6

 this subdivision be construed as precluding the prosecution of a defend-
 ant for the commission of a different offense while participating in the
 judicial diversion program.
   (e) A defendant may at any time advise the court that he or she wishes
 to  terminate  participation in the judicial diversion program, at which
 time the court shall proceed with the case and, where applicable,  shall
 impose  sentence  in accordance with the plea agreement. Notwithstanding
 any provision of law to the contrary, the court may impose any  sentence
 authorized  for  the  crime  of  conviction  in accordance with the plea
 agreement, or any lesser sentence authorized to be imposed on  a  felony
 drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
 section 70.70 of the penal law taking into account the  length  of  time
 the  defendant  spent  in residential treatment and how best to continue
 treatment while the defendant is serving that sentence.
   10. Upon the court's determination that the defendant has successfully
 completed the required period of alcohol or substance [abuse] USE treat-
 ment and has otherwise satisfied the conditions required for  successful
 completion  of  the  judicial  diversion program, the court shall comply
 with the terms and conditions it  set  for  final  disposition  when  it
 accepted the defendant's agreement to participate in the judicial diver-
 sion  program. Such disposition may include, but is not limited to:  (a)
 requiring the defendant to undergo a period of interim probation  super-
 vision  and,  upon  the defendant's successful completion of the interim
 probation supervision term, notwithstanding the provision of  any  other
 law,  permitting  the  defendant  to withdraw his or her guilty plea and
 dismissing the indictment; or (b) requiring the defendant to  undergo  a
 period  of interim probation supervision and, upon successful completion
 of the interim probation supervision term, notwithstanding the provision
 of any other law, permitting the defendant to withdraw his or her guilty
 plea, enter a guilty plea to a misdemeanor offense  and  sentencing  the
 defendant  as promised in the plea agreement, which may include a period
 of probation supervision pursuant to section 65.00 of the penal law;  or
 (c)  allowing  the  defendant  to  withdraw  his  or her guilty plea and
 dismissing the indictment.
   11. Nothing in this article  shall  be  construed  as  restricting  or
 prohibiting  courts or district attorneys from using other lawful proce-
 dures  or  models  for  placing  appropriate  persons  into  alcohol  or
 substance [abuse] USE treatment.
   § 4. This act shall take effect immediately; provided, that the amend-
 ments to the opening paragraph of subdivision 1 of section 216.00 of the
 criminal  procedure law made by section one of this act shall be subject
 to the expiration and reversion of such paragraph pursuant to section 12
 of chapter 90 of the laws of 2014, as amended, when upon such  date  the
 provisions of section two of this act shall take effect.

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Senate Bill S2172B

Sponsored By

Archive: Last Bill Status - In Senate Committee Alcoholism And Substance Abuse Committee

Feb 11, 2019 - Alcoholism And Substance Use Disorders Committee Vote

Alcoholism And Substance Use Disorders Committee Vote: Feb 11, 2019

Bill Amendments

co-Sponsors

2019-S2172 - Details

2019-S2172 - Summary

2019-S2172 - Sponsor Memo

2019-S2172 - Bill Text download pdf

co-Sponsors

2019-S2172A - Details

2019-S2172A - Summary

2019-S2172A - Sponsor Memo

2019-S2172A - Bill Text download pdf

co-Sponsors

2019-S2172B (ACTIVE) - Details

2019-S2172B (ACTIVE) - Summary

2019-S2172B (ACTIVE) - Sponsor Memo

2019-S2172B (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S2172B

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Sponsored By

Jamaal T. Bailey

Archive: Last Bill Status - In Senate Committee Alcoholism And Substance Abuse Committee

Bill Amendments

co-Sponsors

Zellnor Myrie

2019-S2172 - Details

2019-S2172 - Summary

2019-S2172 - Sponsor Memo

2019-S2172 - Bill Text download pdf

co-Sponsors

Zellnor Myrie

Gustavo Rivera

2019-S2172A - Details

2019-S2172A - Summary

2019-S2172A - Sponsor Memo

2019-S2172A - Bill Text download pdf

co-Sponsors

Zellnor Myrie

Gustavo Rivera

2019-S2172B (ACTIVE) - Details

2019-S2172B (ACTIVE) - Summary

2019-S2172B (ACTIVE) - Sponsor Memo

2019-S2172B (ACTIVE) - Bill Text download pdf

Comments