S T A T E   O F   N E W   Y O R K
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                                  8292

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 13, 2009
                               ___________

Introduced by M. of A. CAMARA -- read once and referred to the Committee
  on Correction

AN  ACT  to  amend  the  correction law, the criminal procedure law, the
  executive law and the penal law,  in  relation  to  establishing  drug
  treatment  alternatives  to  incarceration  for certain offenders; and
  making an appropriation therefor

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. The correction law is amended by adding a new section 72-c
to read as follows:
  S 72-C. SUBSTANCE ABUSE TREATMENT  ALTERNATIVE  PROGRAMS  FOR  CERTAIN
OFFENDERS.  1.  THE  COMMISSIONER,  THE  COMMISSIONER  OF ALCOHOLISM AND
SUBSTANCE ABUSE SERVICES, THE CHAIRPERSON OF THE DIVISION OF PAROLE  AND
THE  DIRECTOR OF THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES
SHALL IDENTIFY AND ENTER  INTO  AGREEMENTS  WITH  RESIDENTIAL  SUBSTANCE
ABUSE,  ALCOHOL  ABUSE,  SUBSTANCE  DEPENDENCY AND/OR ALCOHOL DEPENDENCY
TREATMENT PROGRAMS TO PROVIDE FOR THE CARE  AND  TREATMENT  OF  ELIGIBLE
OFFENDERS PURSUANT TO SECTION 70.06 OF THE PENAL LAW.
  2.  THE  PROGRAMS SHALL EITHER BE LICENSED BY THE OFFICE OF ALCOHOLISM
AND SUBSTANCE ABUSE SERVICES OR SHALL BE APPROVED  BY  THE  DIVISION  OF
PAROLE  OR  THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES. ANY
PROGRAM THAT IS NOT LICENSED BY THE OFFICE OF ALCOHOLISM  AND  SUBSTANCE
ABUSE  SERVICES  SHALL PROVIDE TREATMENT SERVICES IN ACCORDANCE WITH ALL
BUT NOT LIMITED TO THE FOLLOWING CRITERIA:
  (A) RELIANCE UPON TRADITIONAL SELF-HELP TECHNIQUES AND  PROGRAMS  SUCH
AS ALCOHOLICS ANONYMOUS OR NARCOTICS ANONYMOUS;
  (B)  NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PROVIDE COUNSELING BY
SUCCESSFULLY RECOVERING SUBSTANCE ABUSERS ABSTAINING FROM THEIR  DEPEND-
ENCY FOR AT LEAST TWO YEARS;
  (C)  PROVIDE FOR GROUP LIVING SO LONG AS REQUIRED FOR THE TREATMENT OF
THE OFFENDERS;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02146-02-9
              

A. 8292                             2

  (D) PROVIDE DAILY COUNSELING FOR AT LEAST THE FIRST NINETY DAYS;
  (E) PROVIDE LIFE-SKILLS TEACHING; AND
  (F) PROVIDE FOR DETOXIFICATION SERVICES AND HEALTH-CARE.
  3.  UPON  THE  SATISFACTORY COMPLETION OF THE COURSE OF TREATMENT, THE
ELIGIBLE OFFENDER SHALL HAVE THE COURT IMPOSED SENTENCE  OF  CONDITIONAL
DISCHARGE TERMINATED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90
OF THE CRIMINAL PROCEDURE LAW.
  4.  OFFENDERS  ASSIGNED  TO  A  PROGRAM SHALL BE SENTENCED AS A SECOND
FELONY OFFENDER IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO  OF
SECTION  70.06 OF THE PENAL LAW AND SHALL BE COMMITTED TO THE CUSTODY OF
THE DEPARTMENT IF THE COURT DETERMINES:
  (A) THAT THE OFFENDER ABSCONDED FROM  THE  SUBSTANCE  ABUSE  TREATMENT
ALTERNATIVE PROGRAM;
  (B)  THAT THE CONFINEMENT OF AN OFFENDER IN THE SUBSTANCE ABUSE TREAT-
MENT ALTERNATIVE PROGRAM IS NO LONGER SUITABLE BECAUSE IT ENDANGERS  THE
SAFETY, SECURITY OR ORDER OF SUCH TREATMENT FACILITY; OR
  (C)  THAT  THE  OFFENDER  VIOLATED  THE  TERMS  AND  CONDITIONS OF THE
SENTENCE.
  S 2. Paragraph (a) of subdivision 3 of section 390.30 of the  criminal
procedure law, as added by chapter 14 of the laws of 1985, is amended to
read as follows:
  (a) The report of the pre-sentence investigation must contain an anal-
ysis  of as much of the information gathered in the investigation as the
agency that conducted the investigation deems relevant to  the  question
of  sentence.    WHERE  APPROPRIATE, THE REPORT MUST INCLUDE A TREATMENT
PLAN INCLUDING BUT NOT  LIMITED  TO  A  LISTING  OF  AVAILABLE  LICENSED
SUBSTANCE ABUSE PROGRAMS BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES OR A PROGRAM APPROVED BY THE DIVISION OF PAROLE OR THE DIVISION
OF  PROBATION  AND CORRECTIONAL ALTERNATIVES TO PROVIDE FOR THE CARE AND
TREATMENT OF OFFENDERS SENTENCED IN ACCORDANCE WITH  THE  PROVISIONS  OF
SUBDIVISION TWO OF SECTION 70.06 OF THE PENAL LAW.  The report must also
include any other [imformation] INFORMATION that the court directs to be
included  and the material required by paragraph (b) of this subdivision
which shall be considered part of the report.
  S 3. The executive law is amended by adding a  new  section  837-s  to
read as follows:
  S  837-S.  SUBSTANCE  ABUSE  TREATMENT  ALTERNATIVE  PROGRAM;  SPECIAL
PROVISIONS. 1. IN COUNTIES WITH FIVE HUNDRED OR LESS ELIGIBLE  OFFENDERS
PARTICIPATING  IN  SUBSTANCE  ABUSE  TREATMENT  ALTERNATIVE  PROGRAMS AS
ESTABLISHED PURSUANT TO SECTION SEVENTY-TWO-C  OF  THE  CORRECTION  LAW,
SUCH COUNTY SHALL UTILIZE THE ENFORCEMENT MECHANISM PROVIDED HEREIN. THE
COMMISSIONER  OF  THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ESTAB-
LISH A UNIT WITHIN THE DIVISION OF PAROLE  TO  WORK  WITH  THE  DISTRICT
ATTORNEY  OF  SUCH  COUNTY AND THE TREATMENT PROGRAMS FOR THE PURPOSE OF
LOCATING, APPREHENDING AND  REARRESTING  OFFENDERS  WHO  HAVE  ABSCONDED
FROM,  OR  VIOLATED  THE  TERMS  AND CONDITIONS OF CONDITIONAL DISCHARGE
DURING PARTICIPATION IN A SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM.
  2. IN COUNTIES WITH FIVE HUNDRED OR MORE  ELIGIBLE  OFFENDERS  PARTIC-
IPATING IN SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAMS AS ESTABLISHED
PURSUANT  TO  SECTION  SEVENTY-TWO-C OF THE CORRECTION LAW, THE DISTRICT
ATTORNEY OF SUCH COUNTY SHALL APPLY TO THE COMMISSIONER OF THE  DIVISION
OF  CRIMINAL JUSTICE SERVICES FOR FUNDS TO ESTABLISH A UNIT TO WORK WITH
THE TREATMENT PROGRAMS FOR THE PURPOSE  OF  LOCATING,  APPREHENDING  AND
REARRESTING OFFENDERS WHO HAVE ABSCONDED FROM, OR VIOLATED THE TERMS AND
CONDITIONS  OF CONDITIONAL DISCHARGE DURING PARTICIPATION IN A SUBSTANCE
ABUSE TREATMENT ALTERNATIVE PROGRAM.

A. 8292                             3

  S 4. Subdivision 2 of section 70.06 of the penal law,  as  amended  by
section  38  of  chapter  7  of  the laws of 2007, is amended to read as
follows:
  2.  Authorized  sentence.  (A) Except as provided in subdivision [five
or] six of this section, or as provided in subdivision five  of  section
70.80  of  this  article,  when  the  court  has  found, pursuant to the
provisions of the criminal procedure law, that  a  person  is  a  second
felony  offender  the  court  must  impose  an indeterminate sentence of
imprisonment. The maximum term of such sentence must  be  in  accordance
with the provisions of subdivision three of this section and the minimum
period  of  imprisonment  under such sentence must be in accordance with
subdivision four of  this  section.    HOWEVER,  IN  CASES  INVOLVING  A
CONVICTION  OF  A CLASS D OR E FELONY AS DEFINED IN ARTICLES TWO HUNDRED
TWENTY AND TWO HUNDRED TWENTY-ONE OF THIS CHAPTER, OTHERWISE SUBJECT  TO
SENTENCE UNDER THIS SECTION, WHERE THE PREDICATE OFFENSE DID NOT SUBJECT
THE  OFFENDER  TO  A SENTENCE PURSUANT TO THE PROVISIONS OF: (A) SECTION
70.02 OF THIS ARTICLE, (B) AN A-I FELONY OFFENSE,  (C)  MANSLAUGHTER  IN
THE  SECOND DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE, VEHICU-
LAR MANSLAUGHTER IN THE FIRST DEGREE, AND CRIMINALLY NEGLIGENT  HOMICIDE
AS  DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THIS CHAPTER, (D) RAPE
IN THE SECOND DEGREE, RAPE IN THE THIRD DEGREE, CRIMINAL SEXUAL  ACT  IN
THE  SECOND  DEGREE, CRIMINAL SEXUAL ACT IN THE THIRD DEGREE,  ATTEMPTED
SEXUAL ABUSE IN THE FIRST DEGREE, ATTEMPTED RAPE IN  THE  SECOND  DEGREE
AND  ATTEMPTED  CRIMINAL  SEXUAL  ACT IN THE SECOND DEGREE AS DEFINED IN
ARTICLES ONE HUNDRED TEN AND ONE HUNDRED THIRTY  OF  THIS  CHAPTER,  AND
WHERE  IT  IS DETERMINED THAT: (I) EXTENDED INSTITUTIONAL CONFINEMENT IS
NOT NECESSARY FOR THE PROTECTION OF THE PUBLIC; (II) THE OFFENDER IS  IN
NEED  OF TREATMENT TO RECOGNIZE, MODIFY AND ELIMINATE A SUBSTANCE ABUSE,
ALCOHOL ABUSE, SUBSTANCE DEPENDENCY AND/OR ALCOHOL DEPENDENCY; (III) THE
OFFENDER DID NOT HAVE SUBSTANTIAL  PROPRIETARY  OR  OTHER  AUTHORITATIVE
CONTROL  OF  AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANUFACTURE OR SALE
OR DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA;  AND  (IV)  SUCH
DISPOSITION  IS NOT INCONSISTENT WITH THE ENDS OF JUSTICE, THE COURT MAY
IMPOSE A SENTENCE OF CONDITIONAL DISCHARGE PURSUANT TO SECTION 65.05  OF
THIS TITLE.
  (B)  IN  ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR HUNDRED TEN OF
THE CRIMINAL PROCEDURE LAW, THE COURT MAY IMPOSE SUCH A SENTENCE ON  THE
CONDITION  THAT  THE OFFENDER PARTICIPATE IN A SUBSTANCE ABUSE TREATMENT
ALTERNATIVE  PROGRAM  FOR  A  SPECIFIED   TIME   PURSUANT   TO   SECTION
SEVENTY-TWO-C OF THE CORRECTION LAW.
  (C)  UPON  COMPLETION OF A COURSE OF TREATMENT, THE COURT SHALL TERMI-
NATE THE SENTENCE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90 OF
THE CRIMINAL PROCEDURE LAW. IF THE COURT DETERMINES  THAT  THE  OFFENDER
ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM OR THAT
THE  SENTENCE IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE SAFETY, THE
SECURITY OR ORDER OF SUCH TREATMENT FACILITY OR THAT THE OFFENDER OTHER-
WISE VIOLATES THE TERMS AND CONDITIONS OF THE SENTENCE, THE SENTENCE MAY
BE REVOKED. UPON REVOCATION, THE OFFENDER SHALL BE SENTENCED AS A SECOND
FELONY OFFENDER PURSUANT TO THIS SUBDIVISION.
  (D) THE COURT SHALL CONDUCT AN ONGOING EVALUATION OF THE PROGRAM.  THE
COURT  SHALL  UNDERTAKE  STUDIES  IN  CONJUNCTION  WITH  THE DIVISION OF
PROBATION AND CORRECTIONAL ALTERNATIVES, THE  DIVISION  OF  PAROLE,  THE
OFFICE  OF  ALCOHOLISM  AND  SUBSTANCE ABUSE SERVICES TO ENSURE THAT THE
PROGRAMMATIC OBJECTIVES ARE MET.

A. 8292                             4

  S 5. Subdivision 2 of section 70.06 of the penal law,  as  amended  by
section  39  of  chapter  7  of  the laws of 2007, is amended to read as
follows:
  2. Authorized sentence. (A) Except [as provided in subdivision five of
this  section,  or]  as provided in subdivision five of section 70.80 of
this article, when the court has found, pursuant to  the  provisions  of
the  criminal  procedure  law, that a person is a second felony offender
the court must impose an indeterminate  sentence  of  imprisonment.  The
maximum  term of such sentence must be in accordance with the provisions
of subdivision three of this section and the minimum period of imprison-
ment under such sentence must be in accordance with subdivision four  of
this  section.  HOWEVER, IN CASES INVOLVING A CONVICTION OF A CLASS D OR
E FELONY AS DEFINED IN ARTICLES TWO HUNDRED TWENTY AND TWO HUNDRED TWEN-
TY-ONE OF  THIS  CHAPTER,  OTHERWISE  SUBJECT  TO  SENTENCE  UNDER  THIS
SECTION,  WHERE  THE PREDICATE OFFENSE DID NOT SUBJECT THE OFFENDER TO A
SENTENCE PURSUANT TO THE PROVISIONS OF: (A) SECTION 70.02 OF THIS  ARTI-
CLE,  (B)  AN A-I FELONY OFFENSE, (C) MANSLAUGHTER IN THE SECOND DEGREE,
VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE, VEHICULAR  MANSLAUGHTER  IN
THE  FIRST DEGREE, AND CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN ARTI-
CLE ONE HUNDRED TWENTY-FIVE OF THIS CHAPTER,  (D)  RAPE  IN  THE  SECOND
DEGREE,  RAPE  IN  THE  THIRD  DEGREE, CRIMINAL SEXUAL ACT IN THE SECOND
DEGREE, CRIMINAL SEXUAL ACT IN THE THIRD DEGREE,  ATTEMPTED SEXUAL ABUSE
IN THE FIRST DEGREE, ATTEMPTED RAPE IN THE SECOND DEGREE  AND  ATTEMPTED
CRIMINAL  SEXUAL  ACT  IN  THE  SECOND DEGREE AS DEFINED IN ARTICLES ONE
HUNDRED TEN AND ONE HUNDRED THIRTY OF THIS  CHAPTER,  AND  WHERE  IT  IS
DETERMINED THAT: (I) EXTENDED INSTITUTIONAL CONFINEMENT IS NOT NECESSARY
FOR THE PROTECTION OF THE PUBLIC; (II) THE OFFENDER IS IN NEED OF TREAT-
MENT  TO  RECOGNIZE,  MODIFY  AND  ELIMINATE  A SUBSTANCE ABUSE, ALCOHOL
ABUSE, SUBSTANCE DEPENDENCY AND/OR ALCOHOL DEPENDENCY; (III) THE  OFFEN-
DER  DID NOT HAVE SUBSTANTIAL PROPRIETARY OR OTHER AUTHORITATIVE CONTROL
OF AN ENTERPRISE DEDICATED  TO  THE  UNLAWFUL  MANUFACTURE  OR  SALE  OR
DISTRIBUTION  OF  A  CONTROLLED  SUBSTANCE  OR  MARIHUANA; AND (IV) SUCH
DISPOSITION IS NOT INCONSISTENT WITH THE ENDS OF JUSTICE, THE COURT  MAY
IMPOSE  A SENTENCE OF CONDITIONAL DISCHARGE PURSUANT TO SECTION 65.05 OF
THIS TITLE.
  (B) IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR HUNDRED  TEN  OF
THE  CRIMINAL PROCEDURE LAW, THE COURT MAY IMPOSE SUCH A SENTENCE ON THE
CONDITION THAT THE OFFENDER PARTICIPATE IN A SUBSTANCE  ABUSE  TREATMENT
ALTERNATIVE   PROGRAM   FOR   A   SPECIFIED  TIME  PURSUANT  TO  SECTION
SEVENTY-TWO-C OF THE CORRECTION LAW.
  (C) UPON COMPLETION OF A COURSE OF TREATMENT, THE COURT  SHALL  TERMI-
NATE THE SENTENCE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90 OF
THE  CRIMINAL  PROCEDURE  LAW. IF THE COURT DETERMINES THAT THE OFFENDER
ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM OR THAT
THE SENTENCE IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE SAFETY,  THE
SECURITY OR ORDER OF SUCH TREATMENT FACILITY OR THAT THE OFFENDER OTHER-
WISE VIOLATES THE TERMS AND CONDITIONS OF THE SENTENCE, THE SENTENCE MAY
BE REVOKED. UPON REVOCATION, THE OFFENDER SHALL BE SENTENCED AS A SECOND
FELONY OFFENDER PURSUANT TO THIS SUBDIVISION.
  (D)  THE COURT SHALL CONDUCT AN ONGOING EVALUATION OF THE PROGRAM. THE
COURT SHALL UNDERTAKE  STUDIES  IN  CONJUNCTION  WITH  THE  DIVISION  OF
PROBATION  AND  CORRECTIONAL  ALTERNATIVES,  THE DIVISION OF PAROLE, THE
OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES  TO  ENSURE  THAT  THE
PROGRAMMATIC OBJECTIVES ARE MET.
  S  6.  The penal law is amended by adding a new section 220.78 to read
as follows:

A. 8292                             5

S 220.78 OPERATING AN ILLEGAL DRUG ENTERPRISE.
  A  PERSON IS GUILTY OF OPERATING AN ILLEGAL DRUG ENTERPRISE WHEN HE OR
SHE KNOWINGLY  AND  UNLAWFULLY  HAS  SUBSTANTIAL  PROPRIETARY  OR  OTHER
AUTHORITATIVE  CONTROL  OF AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANU-
FACTURE, SALE OR DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA.
  OPERATING AN ILLEGAL DRUG ENTERPRISE IS A CLASS C FELONY.
  S 7. The sum of twenty-one million dollars ($21,000,000), or  so  much
thereof  as  may be necessary, is hereby appropriated to the division of
criminal justice services in  consultation  and  coordination  with  the
commissioner of alcoholism and substance abuse services, the chairperson
of the division of parole, and the director of the division of probation
and correctional alternatives out of any moneys in the state treasury in
the  general fund to the credit of the state purposes account not other-
wise appropriated, for carrying out the provisions of this  act.    Such
sum  shall  be payable on the audit and warrant of the state comptroller
on vouchers certified or approved by the commissioner of the division of
criminal justice services, or his or her duly designated  representative
in  the  manner  provided by law. No expenditure shall be made from this
appropriation until a certificate of approval of availability shall have
been issued by the director of the budget and filed with the state comp-
troller and a copy filed with the  chairperson  of  the  senate  finance
committee  and the chairperson of the assembly ways and means committee.
Such certificate may be amended from time to time by the director of the
budget and a copy of each such amendment shall be filed with  the  state
comptroller,  the  chairperson  of  the senate finance committee and the
chairperson of the assembly ways and means committee.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become  a  law;  provided  that  the
amendments  to  subdivision  2 of section 70.06 of the penal law made by
section four of this act shall be subject to the expiration  and  rever-
sion of such subdivision pursuant to section 74 of chapter 3 of the laws
of  1995, as amended, when upon such date the provisions of section five
of this act shall take effect.