S T A T E   O F   N E W   Y O R K
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                                  4206

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            February 1, 2013
                               ___________

Introduced  by M. of A. CAMARA, CASTRO -- Multi-Sponsored by -- M. of A.
  BOYLAND, SALADINO -- 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 AND THE DIRECTOR OF THE OFFICE 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 TREAT-
MENT 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 DEPARTMENT OR
THE OFFICE 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.
                                                           LBD07435-01-3
              

A. 4206                             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 DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION OR THE OFFICE OF PROBATION AND CORRECTIONAL ALTER-
NATIVES 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  IN  THIS
SECTION.   THE COMMISSIONER SHALL ESTABLISH A UNIT WITHIN THE DEPARTMENT
OF CORRECTIONS AND COMMUNITY  SUPERVISION  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  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. 4206                             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 ARTICLE TWO HUNDRED
TWENTY OR 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  OFFICE  OF
PROBATION AND CORRECTIONAL ALTERNATIVES, THE DEPARTMENT  OF  CORRECTIONS
AND  COMMUNITY  SUPERVISION,  AND THE OFFICE OF ALCOHOLISM AND SUBSTANCE
ABUSE SERVICES TO ENSURE THAT THE PROGRAMMATIC OBJECTIVES ARE MET.

A. 4206                             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 ARTICLE TWO HUNDRED TWENTY OR 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  OFFICE  OF
PROBATION AND CORRECTIONAL ALTERNATIVES, THE DEPARTMENT  OF  CORRECTIONS
AND  COMMUNITY  SUPERVISION,  AND 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 220.80  to  read
as follows:

A. 4206                             5

S 220.80 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 commission-
er  of  corrections  and  community supervision, and the director of the
office 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  otherwise  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 comptroller 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.