S T A T E   O F   N E W   Y O R K
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                                 3349--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 17, 2011
                               ___________

Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on Alcoholism and Drug Abuse in accordance with Senate
  Rule  6,  sec.  8  --  committee  discharged,  bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT to amend the criminal procedure law, in relation to the judicial
  diversion program for alcohol and substance  abuse  offenders  and  to
  amend  the  penal law, in relation to the crime of unauthorized depar-
  ture from a rehabilitation facility

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

  Section 1.  Subdivisions 4, 5, 8 and paragraph (a) of subdivision 9 of
section  216.05  of the criminal procedure law, as added by section 4 of
part AAA of chapter 56 of the laws of  2009,  are  amended  to  read  as
follows:
  4.  When an authorized court, AFTER CONSIDERING THE UNDERLYING CHARGES
AND THE PROPENSITY OR LACK THEREOF FOR VIOLENT CONDUCT OF THE DEFENDANT,
AND AFTER REVIEWING OR HEARING ONE OR MORE WRITTEN OR ORAL OPINIONS FROM
A LICENSED PSYCHOLOGIST OR PSYCHIATRIST AS  TO  THE  PROPENSITY  OF  THE
DEFENDANT  FOR FUTURE VIOLENT CONDUCT, AND AFTER MAKING AN ON-THE-RECORD
DETERMINATION AS TO THE REASONS WHY, BASED ON ALL EVIDENCE,  determines,
pursuant  to paragraph (b) of subdivision three of this section, that an
eligible defendant should be offered alcohol or substance  abuse  treat-
ment, or when the parties and the court agree to an eligible defendant's
participation  in  alcohol  or  substance  abuse  treatment, an eligible
defendant may be  allowed  to  participate  in  the  judicial  diversion
program  offered by this article.  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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03024-02-2

              

S. 3349--A                          2

  (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
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 treatment at
a specified program or programs  identified  by  the  court,  which  may
include  periods of detoxification, residential or outpatient treatment,
or both, as determined after taking into account the views of the health
care professional who conducted the alcohol and substance  abuse  evalu-
ation  and  any health care professionals responsible for providing such
treatment or monitoring the defendant's progress in such treatment;  and
may  include: (i) periodic court appearances, which may include periodic
urinalysis, PROVIDED, HOWEVER,  THAT  DEFENDANTS  MAY  MAKE  SUCH  COURT
APPEARANCES  BY  VIDEO  CONFERENCE, AT THE SOLE DISCRETION OF THE COURT;
(ii) a requirement that the defendant refrain from engaging in  criminal
behaviors.
  8.  During  the  period of a defendant's participation in the judicial
diversion program, the court shall retain jurisdiction of the defendant.
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 treatment. The court shall  provide  notice,  reasonable
under  the  circumstances,  to  the  people, the treatment provider, 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.  AT THE
SOLE DISCRETION OF THE COURT, ANY COURT APPEARANCE REQUIRED PURSUANT  TO
THIS SUBDIVISION MAY BE MADE BY VIDEO CONFERENCE.
  (a)  If  at any time during the defendant's participation in the judi-
cial diversion program, the court has reasonable grounds to believe that
the defendant has violated a release condition or has failed  to  appear
before  the  court as requested, the court shall direct the 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.  AT
THE SOLE DISCRETION OF THE COURT, ANY COURT APPEARANCE REQUIRED PURSUANT
TO  THIS  SUBDIVISION MAY BE MADE BY VIDEO CONFERENCE. The provisions of
subdivision one of section 530.60 of this chapter relating to revocation
of recognizance or bail shall  apply  to  such  proceedings  under  this
subdivision.
  S 2. Section 216.05 of the criminal procedure law is amended by adding
two new subdivisions 5-a and 12 to read as follows:
  5-A. 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 TREATMENT, OR WHEN  THE  PARTIES  AND
THE  COURT  AGREE TO AN ELIGIBLE DEFENDANT'S PARTICIPATION IN ALCOHOL OR
SUBSTANCE ABUSE TREATMENT, THE COURT SHALL TRANSMIT THE ELIGIBLE DEFEND-
ANT'S ARREST RECORD AND CONVICTION STATEMENT TO THE FACILITY  WHERE  THE
DEFENDANT IS TO RECEIVE TREATMENT.
  12.  A  FACILITY WHICH IS TREATING A DEFENDANT UNDER THE PROVISIONS OF
THIS SECTION SHALL NOTIFY THE LOCAL POLICE DEPARTMENT WHICH  HAS  JURIS-

S. 3349--A                          3

DICTION  OVER  THE  MUNICIPALITY  WHERE  THE FACILITY IS LOCATED, OF THE
DEFENDANT'S PLACEMENT AND ARREST RECORD (OR IF  THERE  BE  NO  MUNICIPAL
POLICE  DEPARTMENT, THEN THE SHERIFF OF THE COUNTY IN WHICH THE FACILITY
IS  LOCATED),  WHICH SHALL BE PROVIDED TO FACILITY STAFF AT THE FACILITY
IN A MANNER ORDERED BY THE COURT. THE FACILITY SHALL ALSO SUBMIT TO  THE
DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  A  SECURITY  PLAN DESIGNED TO
PROVIDE FOR THE SAFETY  OF  STAFF,  RESIDENTS  AND  THE  COMMUNITY  FROM
VIOLENT  BEHAVIOR BY RESIDENT. SUCH PLAN SHALL BE UPDATED AT LEAST EVERY
FIVE YEARS OR AS OTHERWISE DIRECTED BY THE COMMISSIONER OF THE  DIVISION
OF CRIMINAL JUSTICE SERVICES.
  S  3.  The penal law is amended by adding a new section 205.70 to read
as follows:
S 205.70 UNAUTHORIZED DEPARTURE FROM A REHABILITATION FACILITY.
  A PERSON IS GUILTY OF UNAUTHORIZED  DEPARTURE  FROM  A  REHABILITATION
FACILITY  WHEN A COURT DETERMINES THAT AN ELIGIBLE DEFENDANT, AS DEFINED
BY SUBDIVISION ONE OF SECTION 216.00  OF  THE  CRIMINAL  PROCEDURE  LAW,
LEAVES,  DEPARTS  OR  ESCAPES  FROM THE TREATMENT FACILITY TO WHICH SUCH
PERSON WAS ASSIGNED FOR A PERIOD OF ALCOHOL OR SUBSTANCE ABUSE TREATMENT
AS PART OF THE JUDICIAL DIVERSION PROGRAM PURSUANT TO SECTION 216.05  OF
THE  CRIMINAL  PROCEDURE LAW WITHOUT THE CONSENT OF THE COURT OR WRITTEN
CONSENT OF THE FACILITY MANAGEMENT.
  UNAUTHORIZED DEPARTURE FROM A REHABILITATION FACILITY  IS  A  CLASS  D
FELONY.
  S 4. This act shall take effect immediately.