S T A T E O F N E W Y O R K
________________________________________________________________________
5511--A
Cal. No. 150
2021-2022 Regular Sessions
I N A S S E M B L Y
February 19, 2021
___________
Introduced by M. of A. RICHARDSON, L. ROSENTHAL, HYNDMAN, EPSTEIN,
SAYEGH, SIMON, BARRON, GOTTFRIED, WEPRIN, CRUZ, JACKSON, SEPTIMO,
FORREST, FERNANDEZ, GONZALEZ-ROJAS -- Multi-Sponsored by -- M. of A.
PERRY -- read once and referred to the Committee on Codes -- reported
from committee, advanced to a third reading, amended and ordered
reprinted, retaining its place on the order of third reading
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] TWENTY-TWO 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 FELO-
NY OFFENSE DEFINED IN ARTICLE ONE HUNDRED SEVENTY-NINE, TWO HUNDRED
TWENTY OR TWO HUNDRED TWENTY-TWO OF THE PENAL LAW, AUTO STRIPPING IN THE
SECOND DEGREE AS DEFINED IN SECTION 165.10 OF THE PENAL LAW, AUTO STRIP-
PING 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.
LBD04697-03-1
A. 5511--A 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] TWENTY-TWO 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-TWO 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:
§ 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,
A. 5511--A 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
A. 5511--A 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,
A. 5511--A 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
A. 5511--A 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.