NY State Senate Bill 2021-S6355

Senate Bill S6355

2021-2022 Legislative Session

Relates to controlled substance offenses qualifying for bail and allows courts to consider the risk of continued substance abuse

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to codes
Apr 23, 2021	referred to codes

co-Sponsors

2021-S6355 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§510.10, 530.20, 530.40, 510.30 & 140.20, CP L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S7649
2023-2024: S8565

2021-S6355 (ACTIVE) - Summary

Qualifies controlled substance offenses for bail; allows police officers and courts to consider the risk of continued substance abuse and likelihood of serious harm to the principal when considering committing such principal to the custody of the sheriff.

2021-S6355 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S6355

SPONSOR: AKSHAR
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to controlled
substance offenses qualifying for bail and allowing courts to consider
the risk of continued substance abuse

 
PURPOSE:

To amend the criminal procedure law, in relation to controlled substance
offenses qualifying for bail and allowing courts to consider the risk of
continued substance abuse.

 
SUMMARY OF PROVISIONS:

Section one of the bill adds controlled substance offenses as defined in
Article 220 of the Penal Law, to the qualifying offenses for which a
court may in its discretion fix bail or commit the principal defendant
to custody of the sheriff pending trial.

Sections two through eight of the bill enable a court to commit a prin-
cipal to the custody of the sheriff for a period of no more than fifteen
(15) days if the court finds in its discretion that the principal has a
substantial risk of continued substance abuse and a likelihood of seri-
ous harm to his or herself; and there is no alternative less restrictive
means available to prevent the principal's risk of continued substance
abuse upon his or her release from custody. A court may consider the
following factors in making a determination to commit the principal to
the custody of the sheriff; knowledge of the principal's failed attempts
to complete drug court, admission by the principal that he or she is
addicted to a controlled substance(s), requests by the principal's imme-
diate family members to hold the principal in custody in order to
prevent the likelihood of serious harm, or the principal's record of
arrests related to controlled substances. Alternative and less restric-
tive means of confinement and supervision includes the immediate commit-
ment of the principal in a state licensed substance abuse treatment
center, rehabilitation center or mental health facility.

The court shall order that the principal be monitored and evaluated for
substance addiction by a duly licensed professional during the princi-
pal's period of confinement in a rehabilitation or mental health facili-
ty or custody of the sheriff. The principal's evaluation, which must
include the licensed professional's recommendation for the release or
continued confinement, as well as recommended treatment and
medication(s), shall be provided to the court within seventy-two hours
of completion. The principal shall be afforded the opportunity to
request a hearing to challenge the court's decision to confine him or
her to the custody of a treatment facility or the sheriff. The principal
shall be allowed to introduce his or her evaluation to argue for his or
her immediate release from custody. A defendant that is not provided a
hearing to challenge his or her confinement, within seventy-two (72)
hours of requesting such a hearing must be released from custody imme-
diately.

Section nine of the bill is the effective date.

 
JUSTIFICATION:
In enacting, the New York State budget for fiscal year (FY) 2019-20,
numerous pieces of legislation were passed and signed in to law, includ-
ing several monumental changes to the state Criminal Procedure Law
(CPL). Included with this far-reaching legislation, were numerous chang-
es to our state's laws regarding cash bail. As of January 1, 2020, when
the law took effect, New York's judges are now prevented from fixing
cash bail or remanding to the sheriff's custody any defendant that has
been arrested for a violation as well as most misdemeanor and felony
offenses. Currently, most criminal defendants are simply given an
appearance ticket and are released on their own recognizance because
judges no longer have the option to consider setting bail in many crimi-
nal cases.

Proponents of these recent changes to our state's pre-trial cash bail
system argue that too many individuals, including those accused of
nonviolent crimes, were often forced to sit in jail cells for lengthy
periods, simply because they could not afford the high costs associated
with making bail. However, many New Yorkers are now concerned that these
well-intentioned bail reforms have taken far too many options away from
judges. Dependent upon the crime for which an individual has been
arrested, the safety and well-being of the community at-large and poten-
tial victims, cannot be considered by a judge prior to a defendant's
trial. Many New Yorkers find these limitations alarming and believe that
judges now have their hands tied.

Yet, there is another critically important option that has been taken
away from New York's judges - the option to consider the well-being of
the arrested individual. Too often, individuals accused of non-violent
crimes are addicted to controlled substances like cocaine, methampheta-
mines, heroin and opioids. According to a 2010 study conducted by the
National Center on Addiction and Substance Abuse at Columbia University,
upwards of 65% of the United States prison population (1.5 million pris-
oners) meet the DSM-IV medical criteria for alcohol or other drug abuse
and addiction.

Numerous studies, including a 2018 report by Pew Charitable Trusts,
indicate that punishing those addicted to drugs and alcohol is typically
unsuccessful in helping such individuals conquer their addictions. Most
New Yorker's would agree that individuals struggling with addiction are
primarily a risk to themselves and those closest to them, their friends
and family members. Very few people believe that we should hold those
that abuse controlled substances, in jail cells pending trial, as a
means to rehabilitate or punish defendants.  However, for some individ-
uals afflicted with substance addiction, brief periods in which they are
physically prevented from abusing drugs, can mean the prevention of an
overdose as well as the possible loss of one's life.

This bill would provide judges with the option to weigh the possibility
that an individual defendant may abuse a controlled substance within
several hours or days following his or her release from police custody
and to choose, if there are no other means of prevention, to have such
an individual committed to a drug treatment or mental health facility in
order to prevent the likelihood that such individual will harm his or
herself. Should a judge decide that a defendant is at substantial risk
of substance abuse upon his or her release from custody and find that
there is no feasible way by which the defendant can be committed to the
supervision of treatment or mental health facility, a judge would be

afforded the option to remand such a defendant to the custody of the
sheriff for a period lasting up to fifteen (15) days.

This period of custody, lasting fifteen (15) days or less, serves
several purposes. Confinement of an individual that is struggling with
addiction will substantially decrease the likelihood of a deadly over-
dose. During an individual's period of confinement, the defendant will
receive court ordered observation by a duly licensed and qualified
professional that will monitor the defendant to determine his or her
needs for treatment, including medication(s) and complete an evaluation
for substance addiction. The completed evaluation for substance abuse
must include suggested treatment for the defendant, as well as any
medication(s) needed to help the defendant cope with the symptoms of
withdrawal and assist in combating addiction, if necessary.

The licensed professional must also provide a recommendation in his or
her professional opinion, whether the defendant should be released from
the supervision of the treatment or mental health facility or from the
custody of the county sheriff. The defendant's evaluation, including
suggestions for treatment must be provided to the court as soon as
possible, and within 72 hours of the completion of the evaluation. In
addition, the period in which an individual is held in custody can also
serve as a time for the individual can contemplate the dangers of an
overdose as well as options for treatment such as rehabilitation
programs and participation in drug court.

Should a defendant want to challenge a judge's decision to hold he or
she in custody, such defendant will be afforded the option to request a
hearing. The arrested individual must be provided a hearing within
seventy-two (72) hours of making such a request; failure to provide the
defendant with a hearing within 72 hours will result in that defendant's
immediate release from confinement. At such hearing, the defendant will
be allowed to argue for his or her immediate release and to introduce
evidence including his or her own substance addiction evaluation and
treatment recommendations completed during his or her confinement in the
treatment facility or county jail. In consideration of the well-being of
the arrested individual, the court will have the discretion to weigh the
individual's request to be released from custody, including drug evalu-
ation and the individual's risk for substance abuse including likelihood
of serious harm upon release. The court may decide to release the
arrested individual immediately, or deny the defendant's request and
return him or her to custody for the remaining portion of that defend-
ant's fifteen (15) day period of confinement.

Under Mental Hygiene Law, an individual may be held involuntarily up to
fifteen (15) days for emergency observation and examination if there is
reasonable cause to believe that he or she is at substantial risk of
physical harm to his or herself or to other individuals.  Punishment is
not likely to help any individual conquer addiction and fifteen days
without access to a controlled substance may not be sufficient to over-
come a strong compulsion to abuse drugs, but this bill would provide
judges with additional and invaluable options and may help save lives.

This legislation would afford judges the ability to order the brief
15-day confinement of a defendant that shows a substantial risk of
continued substance abuse in order to prevent the likelihood of serious
harm to that arrested individual within the hours and days immediately
following release from police custody. In addition to the prevention of
a possible deadly overdose for an arrested individual, this bill would
also enable judges to order an arrestee to be given an evaluation for
substance addiction and to help empower an individual to seek treatment
for his or her addiction.

 
LEGISLATIVE HISTORY:

S7649 of 2019 (Jacobs)- Referred to Codes

 
FISCAL IMPLICATIONS:

None

 
LOCAL FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
Immediately.

2021-S6355 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6355
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              April 23, 2021
                                ___________
 
 Introduced  by  Sen.  AKSHAR -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the criminal procedure law, in  relation  to  controlled
   substance offenses qualifying for bail and allowing courts to consider
   the risk of continued substance abuse

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The opening paragraph and paragraphs (a), (d), (s) and  (t)
 of  subdivision  4  of section 510.10 of the criminal procedure law, the
 opening paragraph and paragraphs (a) and (d) as amended  and  paragraphs
 (s)  and  (t) as added by section 2 of part UU of chapter 56 of the laws
 of 2020, are amended and a  new  paragraph  (u)  is  added  to  read  as
 follows:
   Where  the  principal  stands  charged  with a qualifying offense, the
 court, unless otherwise prohibited by law, may in its discretion release
 the principal pending trial on the principal's own recognizance or under
 non-monetary conditions, fix bail, or, where the  defendant  is  charged
 with  a qualifying offense [which is a felony], the court may commit the
 principal to the custody of the sheriff. A principal stands charged with
 a qualifying offense for the purposes of this subdivision when he or she
 stands charged with:
   (a) a felony enumerated in section 70.02 of the penal law[, other than
 robbery in the second degree as defined in subdivision  one  of  section
 160.10  of the penal law, provided, however, that burglary in the second
 degree as defined in subdivision two of section 140.25 of the penal  law
 shall  be  a qualifying offense only where the defendant is charged with
 entering the living area of the dwelling];
   (d) a class A felony AS defined in the penal law[, provided  that  for
 class A felonies under article two hundred twenty of the penal law, only
 class A-I felonies shall be a qualifying offense];
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11026-01-1

 S. 6355                             2
 
   (s)  a  felony,  where  the defendant qualifies for sentencing on such
 charge as a persistent felony offender pursuant to section 70.10 of  the
 penal law; [or]
   (t)  any  felony or class A misdemeanor involving harm to an identifi-
 able person or property, where such charge arose from conduct  occurring
 while  the  defendant  was  released  on  his or her own recognizance or
 released under conditions for a separate felony or class  A  misdemeanor
 involving harm to an identifiable person or property, provided, however,
 that  the  prosecutor  must  show  reasonable  cause to believe that the
 defendant committed the instant crime and any underlying crime. For  the
 purposes  of this [subparagraph] PARAGRAPH, any of the underlying crimes
 need not be a qualifying offense as defined in this subdivision[.]; OR
   (U) A CONTROLLED SUBSTANCE OFFENSE AS DEFINED IN ARTICLE  TWO  HUNDRED
 TWENTY OF THE PENAL LAW.
   § 2. Section 510.10 of the criminal procedure law is amended by adding
 three new subdivisions 5-a, 5-b and 5-c to read as follows:
   5-A.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS THREE AND FOUR OF
 THIS SECTION, THE COURT MAY, IN ITS DISCRETION, COMMIT THE PRINCIPAL  TO
 THE CUSTODY OF THE SHERIFF FOR A PERIOD OF NO MORE THAN FIFTEEN DAYS, IF
 SUCH  PRINCIPAL  HAS A SUBSTANTIAL RISK OF CONTINUED SUBSTANCE ABUSE AND
 THERE IS A LIKELIHOOD OF SERIOUS HARM TO SUCH PRINCIPAL AND THERE EXISTS
 NO ALTERNATIVE LESS RESTRICTIVE MEANS AVAILABLE TO CONFINE OR  SUPERVISE
 SUCH  PRINCIPAL  IN ORDER TO PREVENT THE PRINCIPAL'S SUBSTANTIAL RISK OF
 CONTINUED SUBSTANCE ABUSE UPON RELEASE  FROM  CUSTODY.  ALTERNATIVE  AND
 LESS  RESTRICTIVE MEANS OF CONFINEMENT AND SUPERVISION SHALL MEAN AVAIL-
 ABLE  IMMEDIATE  COMMITMENT  OF  SUCH  PRINCIPAL  IN  A  STATE  LICENSED
 SUBSTANCE  ABUSE  TREATMENT CENTER, DRUG REHABILITATION CENTER OR MENTAL
 HEALTH FACILITY. IN MAKING ITS DETERMINATION, THE COURT MAY CONSIDER THE
 FOLLOWING FACTORS, INCLUDING BUT NOT LIMITED TO:
   (A) KNOWLEDGE OF THE PRINCIPAL'S  FAILED  ATTEMPTS  TO  COMPLETE  DRUG
 COURT;
   (B)  ADMISSION  BY  THE  PRINCIPAL  THAT  HE  OR  SHE IS ADDICTED TO A
 CONTROLLED SUBSTANCE;
   (C) REQUESTS BY THE PRINCIPAL'S IMMEDIATE FAMILY MEMBERS TO  HOLD  THE
 PRINCIPAL IN CUSTODY TO PREVENT THE LIKELIHOOD OF SERIOUS HARM;
   (D)  A  RECORD OF THE PRINCIPAL'S ARRESTS FOR SIMILAR OFFENSES RELATED
 TO SUBSTANCE ABUSE;
   (E) THE ARRESTING OFFICER'S TESTIMONY OF THE PRINCIPAL'S  INTOXICATION
 OR OF WITNESSING THE PRINCIPAL'S USE OF A CONTROLLED SUBSTANCE; AND
   (F) THE PRINCIPAL'S POSSESSION OF A CONTROLLED SUBSTANCE OR POSSESSION
 OF PARAPHERNALIA RELATED THERETO.
   5-B. UPON THE COMMITMENT OF SUCH PRINCIPAL TO THE CUSTODY OF THE SHER-
 IFF,  OR  AN AVAILABLE, LESS RESTRICTIVE MEANS OF CONFINEMENT AND SUPER-
 VISION, THE COURT SHALL ORDER A DULY LICENSED  PROFESSIONAL  TO  MONITOR
 SUCH  PRINCIPAL AS NEEDED TO EVALUATE THE PRINCIPAL'S NEED FOR TREATMENT
 AND/OR MEDICATIONS, AND TO COMPLETE AN EVALUATION  FOR  ADDICTION  TO  A
 CONTROLLED  SUBSTANCE.  TREATMENT,  INCLUDING BUT NOT LIMITED TO MEDICA-
 TIONS, SHALL BE PROVIDED TO THE PRINCIPAL WITHOUT UNNECESSARY DELAY,  AS
 RECOMMENDED  BY  SUCH  LICENSED  PROFESSIONAL.  THE PRINCIPAL'S COMPLETE
 EVALUATION, INCLUDING RECOMMENDATIONS FOR THE CONTINUED CUSTODY OF  SUCH
 PRINCIPAL,  IMMEDIATE  RELEASE FROM CUSTODY, AND ANY OTHER PROPOSALS FOR
 THE CARE AND TREATMENT OF SUCH PRINCIPAL SHALL BE PROVIDED TO THE  COURT
 WITHOUT UNNECESSARY DELAY AND WITHIN NO MORE THAN SEVENTY-TWO HOURS FROM
 THE COMPLETION OF SUCH PRINCIPAL'S EVALUATION. THE PRINCIPAL, SUCH PRIN-
 CIPAL'S  COUNSEL  AND THE DISTRICT ATTORNEY'S OFFICE SHALL BE PROVIDED A
 COPY OF THE PRINCIPAL'S EVALUATION UPON REQUEST TO THE COURT.

 S. 6355                             3
 
   5-C. THE PRINCIPAL SHALL BE AFFORDED THE OPPORTUNITY FOR A HEARING  TO
 REQUEST  THE PRINCIPAL'S IMMEDIATE RELEASE FROM THE CUSTODY OF THE SHER-
 IFF OR CONFINEMENT IN A TREATMENT OR MENTAL HEALTH  FACILITY,  PRIOR  TO
 HIS  OR  HER  ARRAIGNMENT.  IF  WITHIN  SEVENTY-TWO HOURS OF THE COURT'S
 RECEIPT  OF  THE  PRINCIPAL'S REQUEST FOR SUCH HEARING, THE PRINCIPAL IS
 NOT BROUGHT BEFORE A LOCAL CRIMINAL COURT, THE PRINCIPAL SHALL BE  IMME-
 DIATELY  RELEASED  FROM THE SHERIFF'S CUSTODY OR CONFINEMENT IN A TREAT-
 MENT FACILITY OR MENTAL HEALTH FACILITY AND SERVED AN APPEARANCE TICKET.
 THE PRINCIPAL SHALL BE ENTITLED  TO  INTRODUCE  HIS  OR  HER  CONTROLLED
 SUBSTANCE  EVALUATION  INCLUDING  ANY RECOMMENDATIONS MADE BY A LICENSED
 PHYSICIAN THAT PRINCIPAL SHOULD NOT BE HELD IN CUSTODY OF THE SHERIFF OR
 CONFINED AT A TREATMENT OR MENTAL HEALTH FACILITY AND THAT THE PRINCIPAL
 IS NOT IN SUBSTANTIAL RISK FOR SUBSTANCE ABUSE, OR THERE IS NOT A  LIKE-
 LIHOOD  OF  SERIOUS  HARM  TO THE PRINCIPAL UPON HIS OR HER RELEASE FROM
 CUSTODY. THE COURT SHALL CONSIDER THE  PRINCIPAL'S  COMPLETE  EVALUATION
 INCLUDING  TREATMENT RECOMMENDATIONS, RECORD OF ARRESTS, CONVICTIONS AND
 ANY RECORD OF PARTICIPATION IN ANY DRUG COURT AND SHALL  DECIDE  WHETHER
 TO IMMEDIATELY RELEASE SUCH PRINCIPAL FROM THE CUSTODY OF THE SHERIFF OR
 CONFINEMENT  IN  A  TREATMENT  FACILITY OR MENTAL HEALTH FACILITY, OR TO
 REMAND THE PRINCIPAL TO THE CUSTODY OF THE SHERIFF OR CONFINEMENT  IN  A
 TREATMENT  FACILITY  OR  MENTAL HEALTH FACILITY FOR THE REMAINDER OF THE
 PRINCIPAL'S FIFTEEN DAY PERIOD OF CUSTODY OR CONFINEMENT.
   § 3. The opening paragraph and subparagraphs (i), (xix)  and  (xx)  of
 paragraph  (b) of subdivision 1 of section 530.20 of the criminal proce-
 dure law, as amended by section 3 of part UU of chapter 56 of  the  laws
 of  2020,  are  amended and a new subparagraph (xxi) is added to read as
 follows:
   Where the principal stands charged  with  a  qualifying  offense,  the
 court, unless otherwise prohibited by law, may in its discretion release
 the principal pending trial on the principal's own recognizance or under
 non-monetary  conditions,  fix  bail, or, where the defendant is charged
 with a qualifying offense [which is a felony], the court may commit  the
 principal  to  the  custody  of the sheriff. The court shall explain its
 choice of release, release with conditions, bail or remand on the record
 or in writing. A principal stands charged with a qualifying offense when
 he or she stands charged with:
   (i) a felony enumerated in section 70.02 of the penal law[, other than
 robbery in the second degree as defined in subdivision  one  of  section
 160.10  of the penal law, provided, however, that burglary in the second
 degree as defined in subdivision two of section 140.25 of the penal  law
 shall  be  a qualifying offense only where the defendant is charged with
 entering the living area of the dwelling];
   (xix) a felony, where the defendant qualifies for sentencing  on  such
 charge  as a persistent felony offender pursuant to section 70.10 of the
 penal law; [or]
   (xx) any felony or class A misdemeanor involving harm to an  identifi-
 able  person or property, where such charge arose from conduct occurring
 while the defendant was released on  his  or  her  own  recognizance  or
 released  under  conditions for a separate felony or class A misdemeanor
 involving harm to an identifiable person or property, provided, however,
 that the prosecutor must show  reasonable  cause  to  believe  that  the
 defendant  committed the instant crime and any underlying crime. For the
 purposes of this subparagraph, any of the underlying crimes need not  be
 a qualifying offense as defined in this subdivision[.]; OR
   (XXI) A CONTROLLED SUBSTANCE OFFENSE AS DEFINED IN ARTICLE TWO HUNDRED
 TWENTY OF THE PENAL LAW.

 S. 6355                             4
 
   §  4. Subdivision 1 of section 530.20 of the criminal procedure law is
 amended by adding three new paragraphs (c),  (e)  and  (f)  to  read  as
 follows:
   (C)  NOTWITHSTANDING  THE PROVISIONS OF PARAGRAPHS (A) AND (B) OF THIS
 SUBDIVISION, THE COURT MAY, IN ITS DISCRETION, COMMIT THE  PRINCIPAL  TO
 THE CUSTODY OF THE SHERIFF FOR A PERIOD OF NO MORE THAN FIFTEEN DAYS, IF
 SUCH  PRINCIPAL  HAS A SUBSTANTIAL RISK OF CONTINUED SUBSTANCE ABUSE AND
 THERE IS A LIKELIHOOD OF SERIOUS HARM TO SUCH PRINCIPAL AND THERE EXISTS
 NO ALTERNATIVE LESS RESTRICTIVE MEANS AVAILABLE TO CONFINE OR  SUPERVISE
 SUCH  PRINCIPAL  IN ORDER TO PREVENT THE PRINCIPAL'S SUBSTANTIAL RISK OF
 CONTINUED SUBSTANCE ABUSE UPON RELEASE  FROM  CUSTODY.  ALTERNATIVE  AND
 LESS  RESTRICTIVE MEANS OF CONFINEMENT AND SUPERVISION SHALL MEAN AVAIL-
 ABLE  IMMEDIATE  COMMITMENT  OF  SUCH  PRINCIPAL  IN  A  STATE  LICENSED
 SUBSTANCE  ABUSE  TREATMENT CENTER, DRUG REHABILITATION CENTER OR MENTAL
 HEALTH FACILITY. IN MAKING ITS DETERMINATION, THE COURT MAY CONSIDER THE
 FOLLOWING FACTORS, INCLUDING BUT NOT LIMITED TO:
   (I) KNOWLEDGE OF THE PRINCIPAL'S  FAILED  ATTEMPTS  TO  COMPLETE  DRUG
 COURT;
   (II)  ADMISSION  BY  THE  PRINCIPAL  THAT  HE  OR SHE IS ADDICTED TO A
 CONTROLLED SUBSTANCE;
   (III) REQUESTS BY THE PRINCIPAL'S IMMEDIATE FAMILY MEMBERS TO HOLD THE
 PRINCIPAL IN CUSTODY TO PREVENT THE LIKELIHOOD OF SERIOUS HARM;
   (IV) A RECORD OF THE PRINCIPAL'S ARRESTS FOR SIMILAR OFFENSES  RELATED
 TO SUBSTANCE ABUSE;
   (V)  THE  ARRESTING  OFFICER'S TESTIMONY OF WITNESSING THE PRINCIPAL'S
 USE OF A CONTROLLED SUBSTANCE; AND
   (VI)  THE  PRINCIPAL'S  POSSESSION  OF  A  CONTROLLED   SUBSTANCE   OR
 POSSESSION OF PARAPHERNALIA RELATED THERETO.
   (E)  UPON THE COMMITMENT OF SUCH PRINCIPAL TO THE CUSTODY OF THE SHER-
 IFF, OR AN AVAILABLE, LESS RESTRICTIVE MEANS OF CONFINEMENT  AND  SUPER-
 VISION,  THE  COURT  SHALL ORDER A DULY LICENSED PROFESSIONAL TO MONITOR
 SUCH PRINCIPAL AS NEEDED TO EVALUATE THE PRINCIPAL'S NEED FOR  TREATMENT
 AND/OR  MEDICATIONS,  AND  TO  COMPLETE AN EVALUATION FOR ADDICTION TO A
 CONTROLLED SUBSTANCE. TREATMENT, INCLUDING BUT NOT  LIMITED  TO  MEDICA-
 TIONS,  SHALL BE PROVIDED TO THE PRINCIPAL WITHOUT UNNECESSARY DELAY, AS
 RECOMMENDED BY SUCH  LICENSED  PROFESSIONAL.  THE  PRINCIPAL'S  COMPLETE
 EVALUATION,  INCLUDING RECOMMENDATIONS FOR THE CONTINUED CUSTODY OF SUCH
 PRINCIPAL, IMMEDIATE RELEASE FROM CUSTODY, AND ANY OTHER  PROPOSALS  FOR
 THE  CARE AND TREATMENT OF SUCH PRINCIPAL SHALL BE PROVIDED TO THE COURT
 WITHOUT UNNECESSARY DELAY AND WITHIN NO MORE THAN SEVENTY-TWO HOURS FROM
 THE COMPLETION OF SUCH PRINCIPAL'S EVALUATION. THE PRINCIPAL, SUCH PRIN-
 CIPAL'S COUNSEL AND THE DISTRICT ATTORNEY'S OFFICE SHALL BE  PROVIDED  A
 COPY OF THE PRINCIPAL'S EVALUATION UPON REQUEST TO THE COURT.
   (F)  THE  PRINCIPAL SHALL BE AFFORDED THE OPPORTUNITY FOR A HEARING TO
 REQUEST THE PRINCIPAL'S IMMEDIATE RELEASE FROM THE CUSTODY OF THE  SHER-
 IFF  OR  CONFINEMENT  IN A TREATMENT OR MENTAL HEALTH FACILITY, PRIOR TO
 HIS OR HER ARRAIGNMENT. IF  WITHIN  SEVENTY-TWO  HOURS  OF  THE  COURT'S
 RECEIPT  OF  THE  PRINCIPAL'S REQUEST FOR SUCH HEARING, THE PRINCIPAL IS
 NOT BROUGHT BEFORE A LOCAL CRIMINAL COURT, THE PRINCIPAL SHALL BE  IMME-
 DIATELY  RELEASED  FROM THE SHERIFF'S CUSTODY OR CONFINEMENT IN A TREAT-
 MENT FACILITY OR MENTAL HEALTH FACILITY AND SERVED AN APPEARANCE TICKET.
 THE PRINCIPAL SHALL BE ENTITLED  TO  INTRODUCE  HIS  OR  HER  CONTROLLED
 SUBSTANCE  EVALUATION  INCLUDING  ANY RECOMMENDATIONS MADE BY A LICENSED
 PHYSICIAN THAT PRINCIPAL SHOULD NOT BE HELD IN CUSTODY OF THE SHERIFF OR
 CONFINED AT A TREATMENT OR MENTAL HEALTH FACILITY AND THAT THE PRINCIPAL
 IS NOT IN SUBSTANTIAL RISK FOR SUBSTANCE ABUSE, OR THERE IS NOT A  LIKE-

 S. 6355                             5
 
 LIHOOD  OF  SERIOUS  HARM  TO THE PRINCIPAL UPON HIS OR HER RELEASE FROM
 CUSTODY. THE COURT SHALL CONSIDER THE  PRINCIPAL'S  COMPLETE  EVALUATION
 INCLUDING  TREATMENT RECOMMENDATIONS, RECORD OF ARRESTS, CONVICTIONS AND
 ANY  RECORD  OF PARTICIPATION IN ANY DRUG COURT AND SHALL DECIDE WHETHER
 TO IMMEDIATELY RELEASE SUCH PRINCIPAL FROM THE CUSTODY OF THE SHERIFF OR
 CONFINEMENT IN A TREATMENT FACILITY OR MENTAL  HEALTH  FACILITY,  OR  TO
 REMAND  THE  PRINCIPAL TO THE CUSTODY OF THE SHERIFF OR CONFINEMENT IN A
 TREATMENT FACILITY OR MENTAL HEALTH FACILITY FOR THE  REMAINDER  OF  THE
 PRINCIPAL'S FIFTEEN DAY PERIOD OF CUSTODY OR CONFINEMENT.
   § 5. The opening paragraph and paragraphs (a), (s) and (t) of subdivi-
 sion  4  of  section  530.40  of the criminal procedure law, the opening
 paragraph and paragraph (a) as amended and paragraphs  (s)  and  (t)  as
 added  by  section  4  of part UU of chapter 56 of the laws of 2020, are
 amended and a new paragraph (u) is added to read as follows:
   Where the principal stands charged  with  a  qualifying  offense,  the
 court, unless otherwise prohibited by law, may in its discretion release
 the principal pending trial on the principal's own recognizance or under
 non-monetary  conditions,  fix  bail, or, where the defendant is charged
 with a qualifying offense [which is a felony], the court may commit  the
 principal  to  the  custody  of the sheriff. The court shall explain its
 choice of release, release with conditions, bail or remand on the record
 or in writing. A principal stands charged with a qualifying offense  for
 the purposes of this subdivision when he or she stands charged with:
   (a) a felony enumerated in section 70.02 of the penal law[, other than
 robbery  in  the  second degree as defined in subdivision one of section
 160.10 of the penal law, provided, however, that burglary in the  second
 degree  as defined in subdivision two of section 140.25 of the penal law
 shall be a qualifying offense only where the defendant is  charged  with
 entering the living area of the dwelling];
   (s)  a  felony,  where  the defendant qualifies for sentencing on such
 charge as a persistent felony offender pursuant to section 70.10 of  the
 penal law; [or]
   (t)  any  felony or class A misdemeanor involving harm to an identifi-
 able person or property, where such charge arose from conduct  occurring
 while  the  defendant  was  released  on  his or her own recognizance or
 released under conditions for a separate felony or class  A  misdemeanor
 involving harm to an identifiable person or property, provided, however,
 that  the  prosecutor  must  show  reasonable  cause to believe that the
 defendant committed the instant crime and any underlying crime. For  the
 purposes  of this [subparagraph] PARAGRAPH, any of the underlying crimes
 need not be a qualifying offense as defined in this subdivision[.]; OR
   (U) A CONTROLLED SUBSTANCE OFFENSE AS DEFINED IN ARTICLE  TWO  HUNDRED
 TWENTY OF THE PENAL LAW.
   § 6. Section 530.40 of the criminal procedure law is amended by adding
 three new subdivisions 5-a, 5-b and 5-c to read as follows:
   5-A.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISIONS THREE AND FOUR OF
 THIS SECTION, THE COURT MAY, IN ITS DISCRETION, COMMIT THE PRINCIPAL  TO
 THE CUSTODY OF THE SHERIFF FOR A PERIOD OF NO MORE THAN FIFTEEN DAYS, IF
 SUCH  PRINCIPAL  HAS A SUBSTANTIAL RISK OF CONTINUED SUBSTANCE ABUSE AND
 THERE IS A LIKELIHOOD OF SERIOUS HARM TO SUCH PRINCIPAL AND THERE EXISTS
 NO ALTERNATIVE LESS RESTRICTIVE MEANS AVAILABLE TO CONFINE OR  SUPERVISE
 SUCH  PRINCIPAL  IN ORDER TO PREVENT THE PRINCIPAL'S SUBSTANTIAL RISK OF
 CONTINUED SUBSTANCE ABUSE UPON RELEASE  FROM  CUSTODY.  ALTERNATIVE  AND
 LESS  RESTRICTIVE MEANS OF CONFINEMENT AND SUPERVISION SHALL MEAN AVAIL-
 ABLE  IMMEDIATE  COMMITMENT  OF  SUCH  PRINCIPAL  IN  A  STATE  LICENSED
 SUBSTANCE  ABUSE  TREATMENT CENTER, DRUG REHABILITATION CENTER OR MENTAL

 S. 6355                             6

 HEALTH FACILITY. IN MAKING ITS DETERMINATION, THE COURT MAY CONSIDER THE
 FOLLOWING FACTORS, INCLUDING BUT NOT LIMITED TO:
   (A)  KNOWLEDGE  OF  THE  PRINCIPAL'S  FAILED ATTEMPTS TO COMPLETE DRUG
 COURT;
   (B) ADMISSION BY THE PRINCIPAL  THAT  HE  OR  SHE  IS  ADDICTED  TO  A
 CONTROLLED SUBSTANCE;
   (C)  REQUESTS  BY THE PRINCIPAL'S IMMEDIATE FAMILY MEMBERS TO HOLD THE
 PRINCIPAL IN CUSTODY TO PREVENT THE LIKELIHOOD OF SERIOUS HARM;
   (D) A RECORD OF THE PRINCIPAL'S ARRESTS FOR SIMILAR  OFFENSES  RELATED
 TO SUBSTANCE ABUSE;
   (E)  THE ARRESTING OFFICER'S TESTIMONY OF THE PRINCIPAL'S INTOXICATION
 OR OF WITNESSING THE PRINCIPAL'S USE OF A CONTROLLED SUBSTANCE; AND
   (F) THE PRINCIPAL'S POSSESSION OF A CONTROLLED SUBSTANCE OR POSSESSION
 OF PARAPHERNALIA RELATED THERETO.
   5-B. UPON THE COMMITMENT OF SUCH PRINCIPAL TO THE CUSTODY OF THE SHER-
 IFF, OR AN AVAILABLE, LESS RESTRICTIVE MEANS OF CONFINEMENT  AND  SUPER-
 VISION,  THE  COURT  SHALL ORDER A DULY LICENSED PROFESSIONAL TO MONITOR
 SUCH PRINCIPAL AS NEEDED TO EVALUATE THE PRINCIPAL'S NEED FOR  TREATMENT
 AND/OR  MEDICATIONS,  AND  TO  COMPLETE AN EVALUATION FOR ADDICTION TO A
 CONTROLLED SUBSTANCE.  TREATMENT, INCLUDING BUT NOT LIMITED  TO  MEDICA-
 TIONS,  SHALL BE PROVIDED TO THE PRINCIPAL WITHOUT UNNECESSARY DELAY, AS
 RECOMMENDED BY SUCH  LICENSED  PROFESSIONAL.  THE  PRINCIPAL'S  COMPLETE
 EVALUATION,  INCLUDING RECOMMENDATIONS FOR THE CONTINUED CUSTODY OF SUCH
 PRINCIPAL, IMMEDIATE RELEASE FROM CUSTODY, AND ANY OTHER  PROPOSALS  FOR
 THE  CARE AND TREATMENT OF SUCH PRINCIPAL SHALL BE PROVIDED TO THE COURT
 WITHOUT UNNECESSARY DELAY AND WITHIN NO MORE THAN SEVENTY-TWO HOURS FROM
 THE COMPLETION OF SUCH PRINCIPAL'S EVALUATION. THE PRINCIPAL, SUCH PRIN-
 CIPAL'S COUNSEL AND THE DISTRICT ATTORNEY'S OFFICE SHALL BE  PROVIDED  A
 COPY OF THE PRINCIPAL'S EVALUATION UPON REQUEST TO THE COURT.
   5-C.  THE PRINCIPAL SHALL BE AFFORDED THE OPPORTUNITY FOR A HEARING TO
 REQUEST THE PRINCIPAL'S IMMEDIATE RELEASE FROM THE CUSTODY OF THE  SHER-
 IFF  OR  CONFINEMENT  IN A TREATMENT OR MENTAL HEALTH FACILITY, PRIOR TO
 HIS OR HER ARRAIGNMENT. IF  WITHIN  SEVENTY-TWO  HOURS  OF  THE  COURT'S
 RECEIPT  OF  THE  PRINCIPAL'S REQUEST FOR SUCH HEARING, THE PRINCIPAL IS
 NOT BROUGHT BEFORE A LOCAL CRIMINAL COURT, THE PRINCIPAL SHALL BE  IMME-
 DIATELY  RELEASED  FROM THE SHERIFF'S CUSTODY OR CONFINEMENT IN A TREAT-
 MENT FACILITY OR MENTAL HEALTH FACILITY AND SERVED AN APPEARANCE TICKET.
 THE PRINCIPAL SHALL BE ENTITLED  TO  INTRODUCE  HIS  OR  HER  CONTROLLED
 SUBSTANCE  EVALUATION  INCLUDING  ANY RECOMMENDATIONS MADE BY A LICENSED
 PHYSICIAN THAT PRINCIPAL SHOULD NOT BE HELD IN CUSTODY OF THE SHERIFF OR
 CONFINED AT A TREATMENT OR MENTAL HEALTH FACILITY AND THAT THE PRINCIPAL
 IS NOT IN SUBSTANTIAL RISK FOR SUBSTANCE ABUSE, OR THERE IS NOT A  LIKE-
 LIHOOD  OF  SERIOUS  HARM  TO THE PRINCIPAL UPON HIS OR HER RELEASE FROM
 CUSTODY. THE COURT SHALL CONSIDER THE  PRINCIPAL'S  COMPLETE  EVALUATION
 INCLUDING  TREATMENT RECOMMENDATIONS, RECORD OF ARRESTS, CONVICTIONS AND
 ANY RECORD OF PARTICIPATION IN ANY DRUG COURT AND SHALL  DECIDE  WHETHER
 TO IMMEDIATELY RELEASE SUCH PRINCIPAL FROM THE CUSTODY OF THE SHERIFF OR
 CONFINEMENT  IN  A  TREATMENT  FACILITY OR MENTAL HEALTH FACILITY, OR TO
 REMAND THE PRINCIPAL TO THE CUSTODY OF THE SHERIFF OR CONFINEMENT  IN  A
 TREATMENT  FACILITY  OR  MENTAL HEALTH FACILITY FOR THE REMAINDER OF THE
 PRINCIPAL'S FIFTEEN DAY PERIOD OF CUSTODY OR CONFINEMENT.
   § 7. Subparagraph (ii) of paragraph (g) and paragraph (h) of  subdivi-
 sion  1  of  section 510.30 of the criminal procedure law, as amended by
 section 5 of part JJJ of chapter 59 of the laws of 2019, are amended and
 a new paragraph (i) is added to read as follows:
   (ii) the principal's history of use or possession of a firearm; [and]

 S. 6355                             7
 
   (h) If the principal is a defendant, in the case of an application for
 a securing order pending appeal, the merit  or  lack  of  merit  of  the
 appeal[.]; AND
   (I)  WHETHER  THE  PRINCIPAL  HAS  A  SUBSTANTIAL  RISK  OF  CONTINUED
 SUBSTANCE ABUSE AND THERE IS A LIKELIHOOD OF SERIOUS HARM TO SUCH  PRIN-
 CIPAL  AND  THERE EXISTS NO ALTERNATIVE LESS RESTRICTIVE MEANS AVAILABLE
 TO CONFINE OR SUPERVISE SUCH PRINCIPAL IN ORDER TO PREVENT  THE  PRINCI-
 PAL'S  SUBSTANTIAL  RISK  OF CONTINUED SUBSTANCE ABUSE UPON RELEASE FROM
 CUSTODY. ALTERNATIVE AND  LESS  RESTRICTIVE  MEANS  OF  CONFINEMENT  AND
 SUPERVISION  SHALL MEAN AVAILABLE IMMEDIATE COMMITMENT OF SUCH PRINCIPAL
 IN A STATE LICENSED SUBSTANCE ABUSE  TREATMENT  CENTER,  DRUG  REHABILI-
 TATION  CENTER  OR  MENTAL HEALTH FACILITY. IN MAKING ITS DETERMINATION,
 THE COURT MAY CONSIDER THE FOLLOWING FACTORS, INCLUDING BUT NOT  LIMITED
 TO:
   (I)  KNOWLEDGE  OF  THE  PRINCIPAL'S  FAILED ATTEMPTS TO COMPLETE DRUG
 COURT;
   (II) ADMISSION BY THE PRINCIPAL THAT  HE  OR  SHE  IS  ADDICTED  TO  A
 CONTROLLED SUBSTANCE;
   (III) REQUESTS BY THE PRINCIPAL'S IMMEDIATE FAMILY MEMBERS TO HOLD THE
 PRINCIPAL IN CUSTODY TO PREVENT THE LIKELIHOOD OF SERIOUS HARM;
   (IV)  A RECORD OF THE PRINCIPAL'S ARRESTS FOR SIMILAR OFFENSES RELATED
 TO SUBSTANCE ABUSE;
   (V) THE ARRESTING OFFICER'S TESTIMONY OF  WITNESSING  THE  PRINCIPAL'S
 USE OF A CONTROLLED SUBSTANCE; AND
   (VI)   THE   PRINCIPAL'S  POSSESSION  OF  A  CONTROLLED  SUBSTANCE  OR
 POSSESSION OF PARAPHERNALIA RELATED THERETO.
   § 8. Section 140.20 of the criminal procedure law is amended by adding
 a new subdivision 9 to read as follows:
   9. IF AFTER ARRESTING A PERSON, FOR  ANY  OFFENSE,  A  POLICE  OFFICER
 REASONABLY  BELIEVES  THE  ARRESTED  PERSON  IS  LIKELY  ADDICTED  TO  A
 CONTROLLED SUBSTANCE, SUCH ARRESTED PERSON MAY BE  TEMPORARILY  HELD  IN
 CUSTODY BUT MUST BE BROUGHT BEFORE A LOCAL CRIMINAL COURT WITHOUT UNNEC-
 ESSARY  DELAY  FOR A DETERMINATION OF WHETHER THE ARRESTED PERSON SHOULD
 BE COMMITTED TO THE CUSTODY OF THE SHERIFF UNDER SUBDIVISION  FIVE-A  OF
 SECTION  510.10,  PARAGRAPH  (C) OF SUBDIVISION ONE OF SECTION 530.20 OR
 SUBDIVISION FIVE-A OF SECTION 530.40 OF THIS CHAPTER. IN MAKING A DETER-
 MINATION THAT THE ARRESTED PERSON IS LIKELY  ADDICTED  TO  A  CONTROLLED
 SUBSTANCE  AND IS AT SUBSTANTIAL RISK FOR CONTINUED SUBSTANCE ABUSE UPON
 RELEASE FROM CUSTODY,  A  POLICE  OFFICER  MAY  CONSIDER  THE  FOLLOWING
 FACTORS, INCLUDING BUT NOT LIMITED TO:
   (A) THE ARRESTED PERSON APPEARS INTOXICATED, IMPAIRED OR INCAPACITATED
 AT  THE  TIME  OF  THE  ARREST, OR IN THE HOURS FOLLOWING THE ARREST AND
 WHILE THE ARRESTED PERSON IS IN THE CUSTODY OF THE ARRESTING OFFICERS OR
 WHILE PHYSICALLY PRESENT AT THE POLICE STATION;
   (B) ADMISSION BY THE ARRESTED PERSON THAT HE OR SHE IS ADDICTED  TO  A
 CONTROLLED SUBSTANCE;
   (C)  REQUESTS BY THE ARRESTED PERSON'S KNOWN IMMEDIATE FAMILY MEMBERS,
 OR FELLOW RESIDENTIAL COHABITANTS, TO HOLD THE ARRESTED PERSON IN CUSTO-
 DY IN ORDER TO PREVENT THE LIKELIHOOD OF SERIOUS HARM;
   (D) KNOWLEDGE OF THE ARRESTED PERSON'S RECORD OF ARRESTS  FOR  SIMILAR
 OFFENSES DIRECTLY RELATED TO SUBSTANCE ABUSE;
   (E)  THE  ARRESTING  OFFICER  WITNESSED  THE  ARRESTED  PERSON  USE  A
 CONTROLLED SUBSTANCE; AND
   (F) THE ARRESTING OFFICER FOUND THE ARRESTED PERSON IN POSSESSION OF A
 CONTROLLED SUBSTANCE OR PARAPHERNALIA RELATED THERETO AT THE TIME OF THE
 ARREST, OR UPON A SEARCH OF SUCH ARRESTED PERSON.

 S. 6355                             8
 
   § 9. This act shall take effect immediately.

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Senate Bill S6355

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