S T A T E O F N E W Y O R K
________________________________________________________________________
2050--A
2017-2018 Regular Sessions
I N S E N A T E
January 11, 2017
___________
Introduced by Sens. BONACIC, AVELLA, BOYLE, CARLUCCI, CROCI, DeFRANCIS-
CO, FELDER, GALLIVAN, GOLDEN, GRIFFO, HANNON, LANZA, LARKIN, LAVALLE,
LITTLE, MARCELLINO, MARCHIONE, O'MARA, ORTT, RANZENHOFER, RITCHIE,
ROBACH, SAVINO, SERINO, SEWARD, VALESKY, YOUNG -- read twice and
ordered printed, and when printed to be committed to the Committee on
Codes -- 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, subdivision 4 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 chapter 258 of the laws of 2015, 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04154-03-7
S. 2050--A 2
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:
(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; (iii) if the defendant needs treatment for opioid abuse or
dependence, 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.
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 treatment and other programs in the jurisdiction where the defend-
ant resides or in any other jurisdiction, while participating in a judi-
cial 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 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;
S. 2050--A 3
provided, however, that under no circumstances shall a defendant who
requires treatment for opioid abuse or dependence be deemed to have
violated a release condition on the basis of his or her participation 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. AT THE SOLE
DISCRETION OF THE COURT, ANY COURT APPEARANCE REQUIRED PURSUANT TO THIS
SUBDIVISION MAY BE MADE BY VIDEO CONFERENCE. The provisions of subdivi-
sion one of section 530.60 of this chapter relating to revocation of
recognizance or bail shall apply to such proceedings under this subdivi-
sion.
§ 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-
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 RESIDENTS. SUCH PLAN SHALL BE UPDATED AT LEAST EVERY
FIVE YEARS OR AS OTHERWISE DIRECTED BY THE COMMISSIONER OF THE DIVISION
OF CRIMINAL JUSTICE SERVICES.
§ 3. The penal law is amended by adding a new section 205.70 to read
as follows:
§ 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.
§ 4. This act shall take effect immediately.
