S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7228
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                               June 7, 2021
                                ___________
 
 Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 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:
   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]
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD04697-04-1

 S. 7228                             2
 
 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,
 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. 7228                             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 165.10, 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. 7228                             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] 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,
 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. 7228                             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 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
 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.

 S. 7228                             6

   (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.