The New York State Senate

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2881
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 26, 2021
                                ___________
 
 Introduced  by Sens. RAMOS, SEPULVEDA -- read twice and ordered printed,
   and when printed to be committed to the Committee  on  Alcoholism  and
   Substance Abuse
 
 AN  ACT  to  amend  the  criminal procedure law, in relation to judicial
   diversion programs; and to  repeal  certain  provisions  of  such  law
   relating thereto

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The article heading of article 216 of the  criminal  proce-
 dure law, as added by section 4 of part AAA of chapter 56 of the laws of
 2009, is amended to read as follows:
          JUDICIAL DIVERSION [PROGRAM FOR CERTAIN FELONY OFFENDERS]
                                 PROGRAMS
   §  2.  The opening paragraph of subdivision 1 of section 216.00 of the
 criminal procedure law, as amended by chapter 90 of the laws of 2014, 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 felo-
 ny offense defined in article  one  hundred  seventy-nine,  two  hundred
 twenty or two hundred twenty-one of the penal law or any other specified
 offense  as  defined in subdivision four of section 410.91 of this chap-
 ter, provided, however, a defendant is not an "eligible defendant" if he
 or she:], MISDEMEANOR COMPLAINT OR FELONY COMPLAINT WITH ANY OFFENSE AND
 HAS A FUNCTIONAL IMPAIRMENT.
   § 3. 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 felo-
 ny offense defined in article two hundred twenty or two hundred  twenty-
 one  of  the  penal  law  or  any  other specified offense as defined in

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

                                                            LBD06635-01-1

 S. 2881                             2

 subdivision four of section 410.91 of this chapter, provided, however, a
 defendant is not an "eligible defendant" if  he  or  she:],  MISDEMEANOR
 COMPLAINT  OR  FELONY  COMPLAINT  WITH  ANY OFFENSE AND HAS A FUNCTIONAL
 IMPAIRMENT.
   § 4. Paragraphs (a) and (b) and the closing paragraph of subdivision 1
 of section 216.00 of the criminal procedure law are REPEALED.
   § 5. Subdivision 2 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:
   2. ["Alcohol and substance  abuse]  "FUNCTIONAL  IMPAIRMENT"  MEANS  A
 CONDITION  DETERMINED  BY  A LICENSED HEALTH CARE PROFESSIONAL TO IMPAIR
 THE DEFENDANT'S FUNCTIONING. A FUNCTIONAL IMPAIRMENT MAY INCLUDE, BUT IS
 NOT LIMITED TO, SUBSTANCE ABUSE OR ALCOHOL DEPENDENCE,  MENTAL  ILLNESS,
 DEVELOPMENTAL DISABILITY, INTELLECTUAL DISABILITY, TRAUMATIC BRAIN INJU-
 RY  OR  OTHER  NEUROLOGICAL  DISEASE,  PERSONALITY  DISORDER,  COGNITIVE
 DYSFUNCTION, DEMENTIA OR EMOTIONAL DISTURBANCE. THE COURT SHALL DEFER TO
 LICENSED HEALTH CARE PROFESSIONALS AND  THE  BROADER  MEDICAL  COMMUNITY
 CONSENSUS  IN DETERMINING WHAT A FUNCTIONAL IMPAIRMENT IS IN RECOGNITION
 THAT SUCH STANDARDS MAY CHANGE QUICKLY WITHIN THE MEDICAL FIELD BASED ON
 NEW RESEARCH. A PERSON MAY HAVE MORE THAN ONE FUNCTIONAL IMPAIRMENT.
   3. "CLINICAL 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, or] FUNCTIONAL IMPAIR-
 MENTS AS DEFINED IN SUBDIVISION TWO OF THIS  SECTION  OR  AN  EVALUATION
 CONDUCTED  by an addiction and substance abuse counselor credentialed by
 the office  of  [alcoholism  and  substance  abuse  services]  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 CURRENTLY has a [history
 of alcohol or substance abuse or alcohol or substance dependence]  FUNC-
 TIONAL  IMPAIRMENT  INCLUDING  BUT  NOT LIMITED TO A MENTAL 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 and mental disorder or mental illness] FUNCTIONAL IMPAIRMENT,
 if any;
   (b)  a  recommendation  as  to  whether  the  defendant's  [alcohol or
 substance abuse or dependence] FUNCTIONAL IMPAIRMENTS, 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 and  any  co-occurring  mental
 disorder or illness] FUNCTIONAL IMPAIRMENTS; and
   (d)  any  other  information,  factor, circumstance, or recommendation
 deemed relevant by the assessing entity or specifically requested by the
 court.
   § 6. 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

 S. 2881                             3
 
 court  at  the  request of the eligible defendant, [may] SHALL order [an
 alcohol and substance abuse] A CLINICAL evaluation. An eligible  defend-
 ant  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  regu-
 lations  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  dependence,  alcohol  abuse or dependence and any
 co-occurring mental disorder or mental illness] FUNCTIONAL IMPAIRMENT OR
 MENTAL DISORDER.
   2. Upon receipt of the completed [alcohol and substance  abuse]  CLIN-
 ICAL  evaluation report, the court shall provide a copy of the report to
 the eligible defendant and the [prosecutor] DEFENDANT'S  COUNSEL.    ANY
 FINDING  IN  THE  REPORT  OR  ASSESSMENT THAT THE DEFENDANT HAS A MENTAL
 DISORDER AS DEFINED IN THE DIAGNOSTIC AND STATISTICAL MANUAL  OF  MENTAL
 DISORDERS,  FIFTH  EDITION,  OR  A CLINICAL DIAGNOSIS OF ANOTHER SERIOUS
 FUNCTIONAL IMPAIRMENT SHALL BE VIEWED AS PRESUMPTIVE EVIDENCE  THAT  THE
 CASE SHOULD BE DIVERTED AND THE DEFENDANT SHOULD RECEIVE TREATMENT.
   3.  (a)  Upon  receipt  of  the  evaluation  report [either party] THE
 DEFENDANT may request a hearing on the issue  of  whether  the  eligible
 defendant  should  be  offered  [alcohol  or  substance abuse] treatment
 pursuant to this article. AT SUCH TIME, THE DEFENDANT SHALL TURN OVER  A
 COMPLETE  COPY OF THE EVALUATION REPORT TO THE PROSECUTOR AND THE COURT.
 At such a proceeding, which shall be held as soon as practicable  so  as
 to  facilitate  early  intervention  in  the event that the defendant is
 found to need [alcohol or substance  abuse]  treatment,  the  court  may
 consider  oral  and written arguments, may take testimony from witnesses
 offered by either party, and may consider any relevant evidence  includ-
 ing, 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 of
 section 410.91 of this chapter, any statement of  or  submitted  by  the
 victim, as defined in paragraph (a) of subdivision two of section 380.50
 of this chapter; AND
   (III) THE DEFENDANT HAS A FUNCTIONAL IMPAIRMENT; AND
   (IV) THE DEFENDANT'S FUNCTIONAL IMPAIRMENT CONTRIBUTED TO THEIR CRIMI-
 NAL LEGAL SYSTEM INVOLVEMENT.
   (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]  FUNCTIONAL  IMPAIRMENT  AS  DEFINED  IN  SUBDIVISION TWO OF
 SECTION 216.00 OF THIS ARTICLE;

 S. 2881                             4
 
   (iii) such [alcohol  or  substance  abuse  or  dependence]  FUNCTIONAL
 IMPAIRMENT is OR MAY BE a contributing factor to the defendant's [crimi-
 nal behavior] INVOLVEMENT IN THE CRIMINAL LEGAL SYSTEM;
   (iv)  the defendant's participation in judicial diversion could effec-
 tively address such [abuse or dependence] FUNCTIONAL IMPAIRMENT; and
   (v) institutional confinement [of] OR  OUTPATIENT  TREATMENT  FOR  the
 defendant  [is or may not be necessary for the protection of the public]
 WOULD BENEFIT THE PUBLIC OR THE DEFENDANT.
   4. (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,  an  eligible defendant [may] SHALL 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:
   (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.]
   (B) THERE SHALL BE A PRESUMPTION IN FAVOR OF ALLOWING ELIGIBLE DEFEND-
 ANTS  TO  PARTICIPATE  IN THE JUDICIAL DIVERSION PROGRAM WITHOUT A PRIOR
 PLEA OF GUILT. THIS PRESUMPTION RECOGNIZES THE PRESUMPTION OF  INNOCENCE
 IN  ALL  CASES BEFORE THE PROSECUTOR OBTAINS A CONVICTION. THIS PRESUMP-
 TION ALSO PROTECTS DEFENDANTS FROM THE  SEVERE  COLLATERAL  CONSEQUENCES
 ASSOCIATED  WITH A CRIMINAL CONVICTION, PARTICULARLY CONSEQUENCES RELAT-
 ING TO IMMIGRATION STATUS, LICENSING FOR EMPLOYMENT, AND HOUSING.  UNDER
 NO  CIRCUMSTANCES  SHALL  THE PROSECUTOR SERVE AS A GATEKEEPER TO DIVER-
 SION.
   (C) IN THE RARE CIRCUMSTANCE THAT A COURT DETERMINES THAT  A  PLEA  OF
 GUILTY  PRIOR  TO TREATMENT IS NECESSARY, SUCH AS WHEN THE DEFENDANT HAS
 PREVIOUSLY FAILED TO COMPLETE JUDICIAL DIVERSION UNDER THIS  ARTICLE  ON
 MORE  THAN  TWO  OCCASIONS, THE DEFENDANT SHALL NOT BE REQUIRED TO WAIVE
 THEIR TRIAL RIGHTS OR SUBMIT AN AFFIDAVIT CONCEDING THEIR  GUILT.  UNDER
 NO  CIRCUMSTANCE SHALL A COURT REQUIRE A PLEA OF GUILTY PRIOR TO DISCLO-
 SURE OF THE DISCOVERY MATERIAL IN THE CASE PURSUANT TO SECTION 245.25 OF
 THIS CHAPTER.
   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]. THE COURT SHALL TAKE INTO ACCOUNT THE VIEWS OF THE HEALTH CARE
 PROFESSIONAL  WHO  CONDUCTED THE CLINICAL EVALUATION AND ANY HEALTH CARE
 PROFESSIONALS RESPONSIBLE FOR PROVIDING SUCH TREATMENT OR MONITORING THE
 DEFENDANT'S PROGRESS IN SUCH TREATMENT.  ADDITIONAL  RELEASE  CONDITIONS
 MAY INCLUDE:
   (A) ADHERING TO A DOCTOR'S PRESCRIBED MEDICATION,
   (B) periods of detoxification,
   (C)  residential or outpatient treatment, or both, as determined after
 taking into account the  views  of  the  health  care  professional  who
 conducted  the  MENTAL  HEALTH ASSESSMENT OR alcohol and substance abuse

 S. 2881                             5
 
 evaluation and any health care professionals responsible  for  providing
 such treatment or monitoring the defendant's progress in such treatment;
 and may include:
   [(i)]  (D)  periodic  court  appearances,  which  may include periodic
 urinalysis;
   [(ii)] (E) a requirement that the defendant refrain from  engaging  in
 criminal behaviors;
   [(iii)]  (F)  if  the  defendant  needs  treatment for opioid abuse or
 dependence OR HAS ANOTHER CONDITION REQUIRING  PRESCRIPTION  MEDICATION,
 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]. 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 PURSUANT TO ARTICLE FIVE HUNDRED
 TEN  OF THIS CHAPTER. The period of alcohol or substance abuse treatment
 shall begin as specified by the court and as soon as  practicable  after
 the  defendant's release, taking into account the availability of treat-
 ment, so as to facilitate early intervention with respect to the defend-
 ant's abuse or condition 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 MENTAL ILLNESS, chemical abuse and chemical dependence,
 OR ANY OTHER FUNCTIONAL IMPAIRMENT however defined in such policy; shall
 first  seek  reimbursement  for  such  treatment  in accordance with the
 provisions of such policy or contract. THE COURT IN ITS  DISCRETION  MAY
 ORDER THE DEFENDANT TO OBTAIN PUBLIC INSURANCE SUCH AS MEDICAID OR MEDI-
 CARE IF THEY SO QUALIFY. HOWEVER, THE DEFENDANT SHALL NOT BE REQUIRED TO
 PAY  FOR ANY PART OF THE COST OF TREATMENT REQUIRED BY THE COURT THAT IS
 NOT COVERED BY PRIVATE OR PUBLIC HEALTH INSURANCE.
   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 MENTAL HEALTH AND/OR
 alcohol and substance abuse treatment and other programs in  the  juris-
 diction  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  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

 S. 2881                             6
 
 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.
   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]
 ORDER A HEARING TO DETERMINE WHETHER IT IS APPROPRIATE TO ISSUE A  BENCH
 WARRANT;  provided, however, that under no circumstances shall a defend-
 ant who requires treatment for MENTAL HEALTH ISSUES AND/OR opioid  abuse
 or  dependence  be  deemed  to  have violated a release condition on the
 basis of his or her participation in medically  prescribed  drug  treat-
 ments 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  issuance  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] SHALL
 conduct a summary hearing consistent with due process and sufficient  to
 satisfy  the  court that the defendant has, in fact, violated the condi-
 tion.
   (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].  THE COURT SHALL TAKE 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 MENTAL HEALTH
 AND/OR alcohol or substance abuse treatment provider, and the extent  to
 which  persons  who  ultimately  successfully  complete a drug treatment
 regimen sometimes relapse by not abstaining from  alcohol  or  substance
 abuse  or  by failing to comply fully with all requirements imposed by a
 treatment program. The court shall also consider using a system of grad-
 uated and appropriate responses or sanctions designed  to  address  such
 inappropriate  behaviors,  protect  public  safety and facilitate, where
 possible, successful completion of the MENTAL HEALTH AND/OR  alcohol  or
 substance abuse 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-

 S. 2881                             7
 
 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.  PRIOR  TO SUCH TERMINATION, THE DEFENDANT
 SHALL BE ENTITLED TO A HEARING AT WHICH CLEAR  AND  CONVINCING  EVIDENCE
 SHALL  BE  OFFERED TO SUPPORT THAT THERE EXISTS A SUBSTANTIAL RISK TO AN
 IDENTIFIABLE PERSON. IN THE ABSENCE OF SUCH A HEARING AND SUCH  A  FIND-
 ING, THERE CAN BE NO TERMINATION.
   (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  treatment
 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
 supervision  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 INFORMATION; 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 OR VIOLATION offense IF THE ORIGINAL CHARGE
 WAS  A  FELONY,  OR  ENTER  A GUILTY PLEA TO A VIOLATION IF THE ORIGINAL
 CHARGE WAS A MISDEMEANOR, 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 OR INFORMATION; OR
   (D)  SENTENCING  THE  DEFENDANT  TO  LESS  THAN  THE STATUTORY MINIMUM
 REQUIRED BY ARTICLE SEVENTY OF THE PENAL LAW WHERE THE JUDGE FINDS  THAT
 THE  DEFENDANT TOOK STEPS TO SUBSTANTIALLY COMPLY WITH THE TREATMENT AND
 SUCH A REDUCED SENTENCE IS IN THE INTERESTS OF JUSTICE.
   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] treatment.
   12. NO AGREEMENT ENTERED INTO PURSUANT TO THIS ARTICLE SHALL CONTAIN A
 PROVISION  WAIVING  DEFENDANT'S  RIGHT  TO  SEALING  PURSUANT TO SECTION
 160.50 OF THIS CHAPTER.
   § 7. The criminal procedure law is amended by  adding  a  new  section
 216.10 to read as follows:
 § 216.10 DIVERSION PART ESTABLISHED.

 S. 2881                             8
 
   1.  THE CHIEF ADMINISTRATOR OF THE COURTS IS HEREBY DIRECTED TO ESTAB-
 LISH, IN EACH COUNTY OF THE STATE, A PART OF THE COURT TO  BE  KNOWN  AS
 THE  DIVERSION  PART FOR THE COUNTY IN WHICH SUCH COURT PRESIDES. TO AID
 IN THEIR WORK, SUCH JUDGES SHALL RECEIVE ANNUAL TRAINING IN  SPECIALIZED
 AREAS,  INCLUDING,  BUT NOT LIMITED TO MENTAL HEALTH AND SUBSTANCE ABUSE
 NEEDS, INCLUDING CO-OCCURRING DISORDERS, EVIDENCE  BASED-PRACTICES,  AND
 TRAUMA-INFORMED  CARE,  AS  WELL  AS  TRAINING IN PROCEDURAL JUSTICE AND
 CULTURAL COMPETENCY. THE CHIEF ADMINISTRATOR OF THE COURTS SHALL  ENSURE
 THAT  ALL  EMPLOYEES  WHO  STAFF THE DIVERSION PARTS RECEIVE SPECIALIZED
 TRAINING IN PROCEDURAL JUSTICE AND  WORKING  WITH  PEOPLE  WITH  COMPLEX
 NEEDS.
   2.  EACH  CHIEF  ADMINISTRATOR  OF THE COURTS SHALL AT THE END OF EACH
 YEAR PREPARE AND FILE AN ANNUAL REPORT, WHICH THE OFFICE SHALL  COMPILE,
 PUBLISH ON ITS WEBSITE AND MAKE AVAILABLE UPON REQUEST TO MEMBERS OF THE
 PUBLIC. SUCH REPORTS SHALL NOT INCLUDE ANY PERSONAL IDENTIFYING INFORMA-
 TION  FOR  ANY  INDIVIDUAL  DEFENDANTS. EACH SUCH REPORT, IN ADDITION TO
 OTHER RELEVANT INFORMATION, SHALL SET FORTH, DISAGGREGATED BY EACH COUN-
 TY SERVED:
   (A) THE NUMBER OF DEFENDANTS WITH CASES IN THE DIVERSION PART;
   (B) THE LENGTH OF TIME, IN MONTHS, EACH CASE REMAINED IN THE DIVERSION
 PART PRIOR TO ACQUITTAL, DISMISSAL, RELEASE ON RECOGNIZANCE,  REVOCATION
 OF RELEASE ON CONDITIONS, AND SENTENCING;
   (C)  THE  RACE, ETHNICITY, AGE AND SEX OF EACH DEFENDANT IN THE DIVER-
 SION PART;
   (D) THE CRIMES WITH WHICH EACH DEFENDANT WAS CHARGED;
   (E) WHETHER THE TREATMENT  OBTAINED  WAS  FOR  SUBSTANCE  USE,  MENTAL
 HEALTH, CO-OCCURRING OR OTHER;
   (F)  THE COURT DISPOSITION IN EACH SUPERVISED CASE, INCLUDING SENTENC-
 ING INFORMATION;
   (G) THE COSTS SAVED TO THE COUNTY BY AVOIDING PRE-TRIAL  OR  POST-CON-
 VICTION DETENTION IN A COUNTY JAIL OR STATE PRISON; AND
   (H)  A  LIST OF SERVICE PROVIDERS, INCLUDING CONTACT INFORMATION, THAT
 THE DIVERSION PART IN THE SUPERIOR COURT OF THE COUNTY PARTNERS WITH  TO
 SERVE DEFENDANTS.
   §  8.  This  act shall take effect immediately; provided, however that
 the amendments to the opening paragraph  of  subdivision  1  of  section
 216.00  of  the  criminal  procedure law made by section two 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 three of  this  act  shall
 take effect.

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  2881--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 26, 2021
                                ___________
 
 Introduced by Sens. RAMOS, BIAGGI, MAY, SALAZAR, SEPULVEDA -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on  Alcoholism  and  Substance  Abuse  --  committee  discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee

 AN  ACT  to  amend  the criminal procedure law and the judiciary law, in
   relation  to  judicial  diversion  programs;  and  to  repeal  certain
   provisions of the criminal procedure law relating thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The article heading of article 216 of the  criminal  proce-
 dure law, as added by section 4 of part AAA of chapter 56 of the laws of
 2009, is amended to read as follows:
          JUDICIAL DIVERSION [PROGRAM FOR CERTAIN FELONY OFFENDERS]
                                 PROGRAMS
   §  2.  The opening paragraph of subdivision 1 of section 216.00 of the
 criminal procedure law, as amended by chapter 90 of the laws of 2014, 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 felo-
 ny offense defined in article  one  hundred  seventy-nine,  two  hundred
 twenty or two hundred twenty-one of the penal law or any other specified
 offense  as  defined in subdivision four of section 410.91 of this chap-
 ter, provided, however, a defendant is not an "eligible defendant" if he
 or she:], MISDEMEANOR COMPLAINT OR FELONY COMPLAINT WITH ANY OFFENSE AND
 HAS A FUNCTIONAL IMPAIRMENT.
   § 3. 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 felo-

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

                                                            LBD06635-02-1

 S. 2881--A                          2

 ny offense defined in article two hundred twenty or two hundred  twenty-
 one  of  the  penal  law  or  any  other specified offense as defined in
 subdivision four of section 410.91 of this chapter, provided, however, a
 defendant  is  not  an  "eligible defendant" if he or she:], MISDEMEANOR
 COMPLAINT OR FELONY COMPLAINT WITH ANY  OFFENSE  AND  HAS  A  FUNCTIONAL
 IMPAIRMENT.
   § 4. Paragraphs (a) and (b) and the closing paragraph of subdivision 1
 of section 216.00 of the criminal procedure law are REPEALED.
   § 5. Subdivision 2 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:
   2. ["Alcohol and substance abuse evaluation"] "PARTICIPANT"  MEANS  AN
 ELIGIBLE DEFENDANT WHO HAS BEEN ADMITTED INTO THE TREATMENT COURT.
   3. "FUNCTIONAL IMPAIRMENT" MEANS A CONDITION THAT IMPAIRS THE ELIGIBLE
 DEFENDANT'S FUNCTIONING. A FUNCTIONAL IMPAIRMENT MAY INCLUDE, BUT IS NOT
 LIMITED  TO,  SUBSTANCE  ABUSE  OR  ALCOHOL  DEPENDENCE, MENTAL ILLNESS,
 DEVELOPMENTAL DISABILITY, INTELLECTUAL DISABILITY, TRAUMATIC BRAIN INJU-
 RY  OR  OTHER  NEUROLOGICAL  DISEASE,  PERSONALITY  DISORDER,  COGNITIVE
 DYSFUNCTION,  DEMENTIA,  EMOTIONAL  DISTURBANCE OR ANY OTHER DISABILITY.
 THE COURT SHALL DEFER TO LICENSED  HEALTH  CARE  PROFESSIONALS  AND  THE
 BROADER  MEDICAL  COMMUNITY CONSENSUS IN DETERMINING WHETHER A PERSON IS
 DISABLED OR FUNCTIONALLY IMPAIRED. A PERSON MAY HAVE MORE THAN ONE FUNC-
 TIONAL IMPAIRMENT.
   4. "CLINICAL EVALUATION" means a written assessment and  report  by  a
 [court-approved  entity  or]  licensed [health care professional experi-
 enced in the treatment of alcohol and  substance  abuse,  or]  CLINICIAN
 QUALIFIED  TO  IDENTIFY FUNCTIONAL IMPAIRMENTS AS DEFINED IN SUBDIVISION
 THREE OF THIS SECTION OR AN EVALUATION CONDUCTED  by  an  addiction  and
 substance  [abuse]  USE DISORDER counselor credentialed by the office of
 [alcoholism  and  substance  abuse  services]  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 CURRENTLY has [a history
 of alcohol or substance abuse or alcohol or substance dependence] ONE OR
 MORE FUNCTIONAL IMPAIRMENTS THAT MAY INCLUDE BUT NOT  BE  LIMITED  TO  A
 MENTAL  DISORDER, as [such terms are] defined in the MOST RECENT EDITION
 OF THE diagnostic and statistical manual of  mental  disorders,  [fourth
 edition,  and  a  co-occurring mental disorder or mental illness and the
 relationship between such abuse or dependence  and  mental  disorder  or
 mental illness,] if any;
   (b)  a  recommendation  as  to  whether  the  defendant's  [alcohol or
 substance abuse or dependence] FUNCTIONAL IMPAIRMENTS, 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 and  any  co-occurring  mental
 disorder  or  illness] FUNCTIONAL IMPAIRMENTS IN ACCORDANCE WITH FEDERAL
 LAW REQUIRING THE MOST INTEGRATED SETTING APPROPRIATE TO  THE  NEEDS  OF
 INDIVIDUALS WITH DISABILITIES; and
   (d)  any  other  information,  factor, circumstance, or recommendation
 deemed relevant by the assessing entity or specifically requested by the
 court.
   5. "TREATMENT" MEANS ONE OR MORE EVIDENCE-BASED INTERVENTIONS  INCLUD-
 ING,  BUT  NOT  LIMITED  TO, COUNSELING, PSYCHOTHERAPY, PHARMACOTHERAPY,
 PSYCHIATRIC MEDICATION, HEALTH PROMOTION, AND OVERDOSE PREVENTION EDUCA-

 S. 2881--A                          3
 
 TION. FOR SUBSTANCE  USE  DISORDERS,  TREATMENT  INCLUDES  ANY  CLINICAL
 SERVICE  OR INTERVENTION THAT ASSISTS INDIVIDUALS TO ACHIEVE RECOVERY IN
 THE FORM OF: (A) ABSTINENCE FROM ALL OR CERTAIN PSYCHOACTIVE SUBSTANCES;
 (B)  A  CHANGE  OR  REDUCTION IN USE; OR (C) IMPROVED WELL-BEING, SOCIAL
 STABILITY AND THE ALLEVIATION OF ASSOCIATED HARMS.
   6. "TREATMENT PROVIDER" MEANS A PERSON OR  ORGANIZATION  QUALIFIED  TO
 PROVIDE  INTERVENTIONS RESPONSIVE TO THE NEEDS IDENTIFIED BY THE PARTIC-
 IPANT AND CLINICIAN DURING THE CLINICAL EVALUATION.
   § 6. 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 LOCAL CRIMINAL COURT arraignment of an eligi-
 ble defendant, but prior to the  entry  of  a  plea  of  guilty  or  the
 commencement  of trial, the court at the request of the eligible defend-
 ant, [may] SHALL order [an alcohol and substance abuse] A CLINICAL eval-
 uation FOR ALL KNOWN FUNCTIONAL IMPAIRMENTS. SUCH EVALUATIONS SHALL TAKE
 PLACE WITHOUT UNDUE DELAY.
   (A) THE POSSIBILITY OF BEING EVALUATED SHALL NOT BE  CONTINGENT  ON  A
 WAIVER  OF  ANY OTHER SECTIONS OF THIS CHAPTER EXCEPT SUBDIVISION ONE OF
 SECTION 30.30 OF THIS CHAPTER.
   (B) An eligible defendant may decline to [participate in] UNDERGO such
 an evaluation at any time.
   (C) 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  depart-
 ment, the court, authorized court personnel and other individuals speci-
 fied  in  such authorization for the sole purpose of determining whether
 the defendant should be offered judicial  diversion  for  treatment  for
 [substance  abuse  or  dependence,  alcohol  abuse or dependence and any
 co-occurring mental disorder or mental illness] A FUNCTIONAL IMPAIRMENT.
   (D) NO STATEMENT OR OTHER DISCLOSURE, WRITTEN OR OTHERWISE, MADE BY  A
 DEFENDANT  TO  A  PROFESSIONAL COMPLETING THE CLINICAL EVALUATION MAY BE
 USED BY THE PROSECUTION TO PROVE ANY CRIME OR  OFFENSE  ALLEGED  IN  THE
 PENDING CASE. ALL SUCH STATEMENTS SHALL BE USED ONLY FOR THE PURPOSES OF
 MAKING RECOMMENDATIONS AS DEFINED IN SUBDIVISION TWO OF THIS SECTION AND
 SHALL OTHERWISE REMAIN CONFIDENTIAL.
   2.  Upon  receipt of the completed [alcohol and substance abuse] CLIN-
 ICAL evaluation report, the court shall provide a copy of the report  to
 the eligible defendant and the [prosecutor] DEFENDANT'S COUNSEL.
   3.  (a)  Upon [receipt] REVIEW of the evaluation report [either party]
 THE DEFENDANT may request a hearing on the issue of whether the  [eligi-
 ble]  defendant  IS AN ELIGIBLE DEFENDANT AND should be offered [alcohol
 or substance abuse] treatment pursuant to this article. AT THE TIME THAT
 THE DEFENDANT REQUESTS A  HEARING,  THE  DEFENDANT  SHALL  TURN  OVER  A
 COMPLETE  COPY OF THE EVALUATION REPORT TO THE PROSECUTOR AND THE COURT.
 At such a proceeding, which shall be held as soon as practicable  so  as
 to  facilitate  early  intervention  in  the  event that the [defendant]
 PARTICIPANT is found to need [alcohol or substance abuse] 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:

 S. 2881--A                          4

   (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  of
 section  410.91  of  this  chapter, any statement of or submitted by the
 victim, as defined in paragraph (a) of subdivision two of section 380.50
 of this chapter;] EXCEPT SEALED CASES DEFINED IN SECTION 160.50 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;
   (iii)  such  alcohol or substance abuse or dependence] THE DEFENDANT'S
 FUNCTIONAL IMPAIRMENT is LIKELY a contributing factor  to  [the  defend-
 ant's  criminal  behavior]  THEIR  CURRENT  OR FUTURE INVOLVEMENT IN THE
 CRIMINAL LEGAL SYSTEM;
   [(iv)] (III) the defendant's participation in judicial diversion could
 effectively address such [abuse or  dependence]  FUNCTIONAL  IMPAIRMENT;
 and
   [(v)  institutional  confinement  of  the  defendant  is or may not be
 necessary for the protection of the public]
   (IV) THE DEFENDANT'S ACCESS TO TREATMENT THROUGH  THIS  ARTICLE  WOULD
 BENEFIT THE PUBLIC AND THE DEFENDANT.
   (C) WHERE THERE HAS BEEN A FINDING IN THE CLINICAL EVALUATION THAT THE
 DEFENDANT  HAS  A MENTAL DISORDER, AS DEFINED IN THE MOST RECENT EDITION
 OF THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, OR A CLIN-
 ICAL DIAGNOSIS OF ANOTHER SERIOUS FUNCTIONAL IMPAIRMENT THERE SHALL BE A
 PRESUMPTION THAT THE DEFENDANT IS AN ELIGIBLE DEFENDANT.
   4. (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,  an  eligible defendant [may] SHALL 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:
   (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.]
   (B)  ELIGIBLE  DEFENDANTS  SHALL  NOT  BE REQUIRED TO SUBMIT A PLEA OF
 GUILTY TO PARTICIPATE IN JUDICIAL DIVERSION.

 S. 2881--A                          5

   (C) PRIOR PARTICIPATION IN TREATMENT OR COURT-MANDATED TREATMENT SHALL
 NOT PRECLUDE FUTURE TREATMENT PARTICIPATION.
   (D)  ELIGIBLE DEFENDANTS SHALL NOT BE PRECLUDED FROM DIVERSION BECAUSE
 OF A LACK OF RESOURCES IN THE COMMUNITY.
   (E) AN ELIGIBLE  DEFENDANT  SHALL  NOT  BE  PRECLUDED  FROM  DIVERSION
 BECAUSE OF THEIR GENDER IDENTITY.
   (F)  THERE  SHALL BE A PRESUMPTION THAT PARTICIPANTS SHALL BE AFFORDED
 THE OPPORTUNITY TO REMAIN AT LIBERTY WHILE AWAITING CLINICAL  EVALUATION
 OR TREATMENT PLACEMENT.
   5. The [defendant] PARTICIPANT shall agree on the record or in writing
 to  abide  by the [release] JUDICIAL DIVERSION PROGRAM conditions set by
 the court, which[,] shall include[:] participation 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 detoxi-
 fication,]. IN SETTING THE PROGRAM CONDITIONS, THE COURT SHALL  CONSIDER
 THE  PARTICIPANT'S  ASSESSMENT AND TREATMENT PLAN, AS AGREED UPON BY THE
 PARTICIPANT AND TREATMENT PROVIDER, IN ADDITION TO THE  CLINICAL  EVALU-
 ATION. THE COURT SHALL NOT CONSIDER THE NATURE OF A PARTICIPANT'S CHARG-
 ES. JUDICIAL DIVERSION PROGRAM CONDITIONS MAY INCLUDE:
   (A)  LIMITED  OR  INTENSIVE  OUTPATIENT TREATMENT IN WHICH THE PARTIC-
 IPANT, REGARDLESS OF WHETHER THEY HAVE PERMANENT  HOUSING  OR  NOT,  MAY
 RESIDE IN THE COMMUNITY;
   (B)  LIMITED PERIODS OF DETOXIFICATION OR INPATIENT REHABILITATION FOR
 PARTICIPANTS WITH SUBSTANCE USE DISORDERS,  EXCEPT  THAT  DETOXIFICATION
 SHALL  NOT  BE  USED  AS  A  SANCTION  AND  DETOXIFICATION SHALL ONLY BE
 REQUIRED  AS  PREPARATION  FOR  A  TREATMENT  ADMISSION  OR   MEDICATION
 INDUCTION;
   (C)  residential  [or  outpatient]  treatment[, or both,]. IF ORDERING
 RESIDENTIAL TREATMENT, PLACEMENT SHALL BE IN THE MOST INTEGRATED SETTING
 APPROPRIATE FOR THE PARTICIPANT'S NEEDS TO AVOID DISCRIMINATION  ON  THE
 BASIS OF DISABILITY, IN ACCORDANCE WITH FEDERAL LAW, as determined after
 taking  into  account  the  views  of  the  health care professional who
 conducted the MENTAL HEALTH ASSESSMENT OR alcohol  and  substance  abuse
 evaluation  and  any health care professionals responsible for providing
 such treatment or monitoring the defendant's progress in such treatment;
 [and may include:
   (i)] (D) periodic  court  appearances,  which  may  [include  periodic
 urinalysis; (ii)] BE AN ELECTRONIC APPEARANCE PURSUANT TO SECTION 182.20
 OF THIS CHAPTER UPON CONSENT OF THE PARTICIPANT. THE COURT SHALL CONSID-
 ER  THE PARTICIPANT'S SERVICE ENGAGEMENT AND TREATMENT NEEDS WHEN SCHED-
 ULING PERIODIC COURT APPEARANCES AND SHALL ATTEMPT TO MINIMIZE TREATMENT
 DISRUPTION;
   (E) PERIODIC DRUG SCREENING AS NEEDED, WHEN RECOMMENDED BY THE  TREAT-
 MENT  PROVIDER AS PART OF A PARTICIPANT'S TREATMENT PLAN. DRUG SCREENING
 METHODS SHALL ONLY INCLUDE ORAL SWABS, SWEAT  PATCHES,  OR  NON-OBSERVED
 URINALYSIS;
   (F) OTHER TREATMENT AS RECOMMENDED BY THE TREATMENT PROVIDER; AND
   (G) a requirement that the [defendant] PARTICIPANT refrain from engag-
 ing in criminal behaviors[;
   (iii)   if   the   defendant  needs  treatment  for  opioid  abuse  or
 dependence].
   5-A. THE COURT SHALL NOT REQUIRE A PARTICIPANT TO CONSENT TO SHARE, OR
 AUTHORIZE THE TREATMENT PROVIDER TO SHARE, PROTECTED HEALTH  INFORMATION
 IN  ACCORDANCE  WITH THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY
 ACT PRIVACY RULE (45 CFR PARTS 160 AND 164), WITH THE COURT.  EXCEPTIONS
 INCLUDE:

 S. 2881--A                          6
 
   (A) RECORD OF ATTENDANCE AND RELEVANT BARRIERS TO ATTENDANCE;
   (B)  TREATMENT  PLAN  AND  ANY  RECOMMENDED CHANGES TO THE PLAN DURING
 PARTICIPATION IN JUDICIAL DIVERSION; AND
   (C) DRUG TOXICOLOGY RESULTS, WHEN PART OF THE TREATMENT PLAN.
   5-B. IF THE PARTICIPANT HAS A CONDITION REQUIRING PRESCRIPTION MEDICA-
 TION, OR HAS ANOTHER CONDITION REQUIRING PRESCRIPTION MEDICATION,  [that
 he or she] THEY 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].
   (A)  NO  court shall require the use of any specified type or brand of
 drug during the course of medically prescribed [drug] treatments.
   (B) NO COURT SHALL PENALIZE OR SANCTION A PARTICIPANT FOR  PERIODS  OF
 VOLUNTARY  HOSPITALIZATION,  RESPITE  CARE, OR OTHER FORMS OF SUPPORTIVE
 CARE.
   5-C. TREATMENT PROVIDERS SHALL COLLABORATE WITH  THE  PARTICIPANT  AND
 CLINICAL  COURT  STAFF TO CREATE A DISCHARGE PLAN PRIOR TO COMPLETION OF
 DIVERSION TO INCORPORATE PEER SUPPORT, HOUSING AND  EMPLOYMENT  SUPPORT,
 AND  HOW  TO  ACCESS OTHER COMMUNITY-BASED HEALTH SERVICES. IF A PARTIC-
 IPANT FINISHES THEIR INPATIENT  OR  OUTPATIENT  TREATMENT  COURSE,  THEY
 SHALL  BE  CONSIDERED TO HAVE SUCCESSFULLY COMPLETED THEIR OBLIGATION TO
 THE COURT, REGARDLESS OF THEIR  ABILITY  TO  SECURE  PERMANENT  HOUSING,
 EMPLOYMENT, OR OTHER PERSONAL GOALS IDENTIFIED BY THE PARTICIPANT.
   6.  Upon  [an eligible defendant's] A PARTICIPANT'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] PARTICIPANT'S
 own recognizance and conditioning  any  release  upon  the  agreed  upon
 conditions  PURSUANT  TO  ARTICLE  FIVE HUNDRED TEN OF THIS CHAPTER. The
 period of [alcohol or substance abuse] treatment shall begin  as  speci-
 fied  by  the  court  and as soon as practicable after the [defendant's]
 PARTICIPANT'S release, taking into account the  availability  of  treat-
 ment,  so  as  to  facilitate  early  intervention  with  respect to the
 [defendant's abuse or condition] PARTICIPANT'S FUNCTIONAL IMPAIRMENT and
 the effectiveness of the treatment program. In the event that  a  treat-
 ment  program is not immediately available or becomes unavailable during
 the course of the [defendant's participation] PARTICIPANT'S  INVOLVEMENT
 in the judicial diversion program, the court may release the [defendant]
 PARTICIPANT 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] FUNCTIONAL
 IMPAIRMENT however defined in such policy; shall first  seek  reimburse-
 ment for such treatment in accordance with the provisions of such policy
 or  contract.  THE  COURT IN ITS DISCRETION MAY ORDER THE PARTICIPANT TO
 OBTAIN PUBLIC INSURANCE SUCH AS MEDICAID OR MEDICARE IF THEY SO QUALIFY.
 HOWEVER, THE PARTICIPANT SHALL NOT BE REQUIRED TO PAY FOR  ANY  PART  OF
 THE  COST  OF  TREATMENT  REQUIRED  BY  THE COURT THAT IS NOT COVERED BY
 PRIVATE OR PUBLIC HEALTH INSURANCE.
   8. (A) During the period  of  a  [defendant's  participation]  PARTIC-
 IPANT'S  INVOLVEMENT  in  the  judicial diversion program, the TREATMENT
 court  shall  retain  jurisdiction  of  the   [defendant]   PARTICIPANT,
 provided,  however,  that  the  court [may] SHALL allow such [defendant]

 S. 2881--A                          7
 
 PARTICIPANT to (i) reside in  another  jurisdiction,  [or]  AND/OR  (ii)
 participate  in  [alcohol  and  substance  abuse]  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 TRANSFER THE
 PARTICIPANT'S CASE TO THE JUDICIAL DIVERSION  COURT  IN  THE  COUNTY  IN
 WHICH  THE  PARTICIPANT  RESIDES PURSUANT TO SUBDIVISION FIVE OF SECTION
 170.15 OF THIS CHAPTER, SUBDIVISION FOUR OF SECTION 180.20 OF THIS CHAP-
 TER, OR SECTION 230.21 OF THIS CHAPTER TO ENSURE  CONTINUITY  OF  TREAT-
 MENT.
   (B)  The  court  may  require the [defendant] PARTICIPANT to appear in
 court OR REMOTELY 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] PARTICIPANT and the
 [defendant's] PARTICIPANT'S counsel  whenever  it  orders  or  otherwise
 requires the appearance of the [defendant] PARTICIPANT 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 [defend-
 ant] PARTICIPANT.
   9.  (a)  If at any time during the [defendant's participation] PARTIC-
 IPANT'S ENGAGEMENT in the judicial  diversion  program,  the  court  has
 reasonable  grounds  to  believe  that  the  [defendant] PARTICIPANT has
 violated a [release] PROGRAM 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] PARTICIPANT
 to appear [or issue a bench warrant to a police officer or an  appropri-
 ate peace officer directing him or her to take the defendant into custo-
 dy  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 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] FOR A HEARING ON
 THE VIOLATION PURSUANT TO PARAGRAPH (B)  OF  THIS  SUBDIVISION  WITH  AT
 LEAST  FORTY-EIGHT  HOURS NOTICE TO THE PARTICIPANT OR THE PARTICIPANT'S
 COUNSEL, UNLESS NOTICE IS WAIVED BY THE PARTICIPANT.  THE COURT MAY  NOT
 MODIFY THE PARTICIPANT'S SECURING ORDER UNTIL SUCH TIME AS THE HEARING'S
 CONCLUSION.  The  relevant  provisions of section 530.60 of this chapter
 relating to issuance of securing orders shall apply to such  proceedings
 under  this  subdivision.  THERE  IS  A PRESUMPTION THAT A BENCH WARRANT
 SHALL NOT BE ISSUED FOR PARTICIPANTS IN JUDICIAL DIVERSION.
   (b) In determining whether a [defendant] PARTICIPANT violated a condi-
 tion of [his or her release under] the  judicial  diversion  program  OR
 WILLFULLY  FAILED  TO  APPEAR  IN COURT, the court [may] SHALL conduct a
 [summary] hearing consistent with due process [and sufficient] to satis-
 fy the court that the [defendant] PARTICIPANT has, in fact, violated the
 condition OR WILLFULLY FAILED TO APPEAR.
   (I) THE COURT SHALL PROVIDE REASONABLE NOTICE TO THE  PARTICIPANT  AND
 THE  PARTICIPANT'S COUNSEL, BUT IN NO CIRCUMSTANCE LESS THAN FORTY-EIGHT
 HOURS NOTICE, UNLESS NOTICE IS WAIVED BY THE PARTICIPANT.
   (II) THE PEOPLE SHALL BEAR THE BURDEN OF PROVING BY CLEAR AND CONVINC-
 ING EVIDENCE THAT THE PARTICIPANT HAS VIOLATED A CONDITION OF THE  JUDI-

 S. 2881--A                          8
 
 CIAL  DIVERSION  PROGRAM  IN  AN  IMPORTANT RESPECT. THE PARTICIPANT MAY
 CROSS-EXAMINE WITNESSES AND MAY PRESENT RELEVANT, ADMISSIBLE EVIDENCE ON
 THEIR OWN BEHALF. THE COURT SHALL CONSIDER ALL FACTORS RELATING  TO  THE
 PARTICIPANT'S  CURRENT  MENTAL HEALTH OR COGNITIVE STATUS, THEIR ENGAGE-
 MENT WITH JUDICIAL DIVERSION PRIOR TO THIS TIME, AS WELL  AS  ANY  OTHER
 FACTORS THAT MAY HAVE IMPACTED THEIR PARTICIPATION OR ALLEGED VIOLATION.
   (III)  A  BENCH  WARRANT  SHALL  NOT BE ISSUED ABSENT A FINDING BY THE
 COURT THAT THE ALLEGED VIOLATION OR FAILURE TO APPEAR  WAS  WILLFUL.  IN
 DETERMINING WILLFULNESS, THE COURT SHALL CONSIDER: THE NEXUS BETWEEN THE
 PARTICIPANT'S  VIOLATION  OR  FAILURE  TO  APPEAR  AND  THEIR FUNCTIONAL
 IMPAIRMENT; WHETHER AN APPROPRIATE TREATMENT PLAN IS CURRENTLY IN PLACE;
 THE PARTICIPANT'S HISTORY OF MAKING COURT  APPEARANCES  IN  THE  INSTANT
 MATTER; AND A HISTORY OF POSITIVE ENGAGEMENT WITH TREATMENT STAFF OR THE
 COURT.
   (IV) UNDER NO CIRCUMSTANCES SHALL A PARTICIPANT WHO REQUIRES TREATMENT
 FOR  A  FUNCTIONAL IMPAIRMENT BE   DEEMED   TO   HAVE VIOLATED A PROGRAM
 CONDITION ON THE PARTICIPATION IN MEDICALLY   PRESCRIBED   DRUG   TREAT-
 MENTS 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.
   (V)  IF THE COURT FINDS A REASONABLE EXPLANATION OR MITIGATION FOR ANY
 ALLEGED VIOLATION OR ALLEGED WILLFUL FAILURE  TO  APPEAR,  THE  SECURING
 ORDER SHALL NOT BE MODIFIED.
   (VI)  THE COURT MAY SEAL PORTIONS OF THE PROCEEDING RELATED TO COLLAT-
 ERAL CONSEQUENCES AT THE REQUEST OF THE  PARTICIPANT  AND  PARTICIPANT'S
 COUNSEL.
   (c)  If the court determines BY CLEAR AND CONVINCING EVIDENCE that the
 [defendant] PARTICIPANT has violated a condition of his or  her  release
 under  the  judicial diversion program, the court may PERMIT THE PARTIC-
 IPANT TO CONTINUE THEIR TREATMENT MANDATE AS PREVIOUSLY ORDERED;  modify
 the  [conditions  thereof,  reconsider the order of recognizance or bail
 pursuant to subdivision two of section 510.30 of this  chapter,]  TREAT-
 MENT  PLAN PER THE RECOMMENDATION OF THE TREATMENT PROVIDER; HOLD TREAT-
 MENT IN ABEYANCE UNTIL THE UNDERLYING MATTER THAT CAUSED  THE  VIOLATION
 IS  RESOLVED; or terminate the [defendant's] PARTICIPANT'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] IF NO  OTHER  TREAT-
 MENT OPTION IS AVAILABLE. THE COURT SHALL CONSIDER:
   (I)  the  length of time the [defendant] PARTICIPANT spent in residen-
 tial 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];
   (II) all relevant circumstances, including the views of  the  prosecu-
 tor,  the  defense  and  the  [alcohol or substance abuse] PARTICIPANT'S
 INTEREST IN CONTINUING treatment [provider,  and  the  extent  to  which
 persons  who  ultimately  successfully complete a drug treatment regimen
 sometimes] OR THE PROGRAM; AND
   (III) THE ROLE OF relapse [by not abstaining from alcohol or substance
 abuse or by failing to comply fully with all requirements imposed  by  a
 treatment program] IN RECOVERY AND TREATMENT.

 S. 2881--A                          9
 
   (D)  The  court  shall [also consider using] USE a system of graduated
 and appropriate responses [or sanctions] designed to address such  inap-
 propriate  behaviors[,  protect  public  safety]  and  facilitate, where
 possible, successful completion of  the  [alcohol  or  substance  abuse]
 treatment program.
   [(d)]  (E) Nothing in this subdivision shall be construed [as prevent-
 ing 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
 [defendant]  PARTICIPANT for the commission of a different offense while
 participating in the judicial diversion program.  [(e)]  PRIOR  TO  SUCH
 TERMINATION,  THE  PARTICIPANT  SHALL  BE ENTITLED TO A HEARING AT WHICH
 CLEAR AND CONVINCING EVIDENCE SHALL BE OFFERED  TO  SUPPORT  THAT  THERE
 EXISTS  A  SUBSTANTIAL RISK TO AN IDENTIFIABLE PERSON. IN THE ABSENCE OF
 SUCH A HEARING AND SUCH A FINDING, THERE CAN BE NO TERMINATION.
   (F) A [defendant] PARTICIPANT may at any time advise  the  court  that
 [he  or she wishes] THEY WISH 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]
 TRANSFER THE CASE BACK TO THE APPROPRIATE TRIAL PART.
   10.  Upon  the  court's determination that the [defendant] PARTICIPANT
 has successfully completed the required period of [alcohol or  substance
 abuse] treatment 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
 diversion program. Such disposition may include, but is not limited to:
   (a)  requiring  the defendant to undergo a period of interim probation
 supervision 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] DISMISS the indictment OR SUPERIOR COURT INFORMATION, FELONY
 COMPLAINT,  MISDEMEANOR  COMPLAINT, INFORMATION, SIMPLIFIED INFORMATION,
 OR PROSECUTOR'S INFORMATION AND SEAL THE CASE PURSUANT TO SECTION 160.50
 OF THIS CHAPTER.
   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] treatment.

 S. 2881--A                         10
 
   §  7.  The  criminal  procedure law is amended by adding a new section
 216.10 to read as follows:
 § 216.10 DIVERSION PART ESTABLISHED.
   1.  THE CHIEF ADMINISTRATOR OF THE COURTS IS HEREBY DIRECTED TO ESTAB-
 LISH, IN EACH COUNTY OF THE STATE, A PART OF THE COURT TO  BE  KNOWN  AS
 THE  DIVERSION  PART FOR THE COUNTY IN WHICH SUCH COURT PRESIDES. TO AID
 IN THEIR WORK, SUCH JUDGES AND DIVERSION COURT PERSONNEL  SHALL  RECEIVE
 ANNUAL  TRAINING  IN  SPECIALIZED  AREAS,  INCLUDING, BUT NOT LIMITED TO
 DISABILITY, MENTAL ILLNESS, AND SUBSTANCE USE DISORDER NEEDS,  INCLUDING
 CO-OCCURRING  DISORDERS,  EVIDENCE  BASED PRACTICES, AND TRAUMA-INFORMED
 CARE, AS WELL AS TRAINING IN PROCEDURAL JUSTICE AND CULTURAL  COMPETENCY
 AND  MEDICAID  OR  MEDICARE  ELIGIBILITY. THE CHIEF ADMINISTRATOR OF THE
 COURTS SHALL ENSURE THAT ALL EMPLOYEES WHO  STAFF  THE  DIVERSION  PARTS
 RECEIVE  SPECIALIZED  TRAINING  IN  PROCEDURAL  JUSTICE AND WORKING WITH
 PEOPLE WITH COMPLEX NEEDS.
   2. EACH CHIEF ADMINISTRATOR OF THE COURTS SHALL AT  THE  END  OF  EACH
 YEAR  PREPARE AND FILE AN ANNUAL REPORT, WHICH THE OFFICE SHALL COMPILE,
 PUBLISH ON ITS WEBSITE AND MAKE AVAILABLE UPON REQUEST TO MEMBERS OF THE
 PUBLIC. SUCH REPORTS SHALL NOT INCLUDE ANY PERSONAL IDENTIFYING INFORMA-
 TION FOR ANY INDIVIDUAL PARTICIPANTS. EACH SUCH REPORT, IN  ADDITION  TO
 OTHER RELEVANT INFORMATION, SHALL SET FORTH, DISAGGREGATED BY EACH COUN-
 TY SERVED:
   (A)  THE  NUMBER  OF PARTICIPANTS WITH CASES IN THE DIVERSION PART FOR
 EACH OF THE FOLLOWING  CATEGORIES,  BROKEN  DOWN  BY  GENDER,  RACE  AND
 ETHNICITY:
   (I) THE NUMBER OF PEOPLE WHO MAKE AN APPLICATION FOR EVALUATION;
   (II)  THE  NUMBER  OF PEOPLE WHO ARE ACCEPTED INTO JUDICIAL DIVERSION;
 AND
   (III) THE NUMBER OF PEOPLE WHO SUCCESSFULLY COMPLETE THE PROGRAM;
   (B) THE LENGTH OF TIME, IN MONTHS, EACH CASE REMAINED IN THE DIVERSION
 PART PRIOR TO ACQUITTAL, DISMISSAL, RELEASE ON RECOGNIZANCE,  REVOCATION
 OF RELEASE ON CONDITIONS, AND SENTENCING;
   (C)  THE  DEMOGRAPHIC  MAKEUP  OF  PARTICIPANTS IN THE DIVERSION PART,
 BROKEN DOWN BY RACE, ETHNICITY, AGE AND SEX OF PARTICIPANTS;
   (D) THE CRIMES WITH WHICH EACH PARTICIPANT WAS CHARGED;
   (E) WHETHER THE TREATMENT  OBTAINED  WAS  FOR  SUBSTANCE  USE,  MENTAL
 HEALTH, CO-OCCURRING OR OTHER;
   (F)  THE COURT DISPOSITION IN EACH SUPERVISED CASE, INCLUDING SENTENC-
 ING INFORMATION;
   (G) THE COSTS SAVED TO THE COUNTY BY AVOIDING PRE-TRIAL  OR  POST-CON-
 VICTION DETENTION IN A COUNTY JAIL OR STATE PRISON; AND
   (H)  A  LIST OF SERVICE PROVIDERS, INCLUDING CONTACT INFORMATION, THAT
 THE DIVERSION PART IN THE SUPERIOR COURT OF THE COUNTY PARTNERS WITH  TO
 SERVE PARTICIPANTS.
   § 8. Subdivision 5 of section 170.15 of the criminal procedure law, as
 amended  by  chapter  91  of  the  laws  of  2021, is amended to read as
 follows:
   5. [(a)] Notwithstanding any provision of this section to the  contra-
 ry,  in any county [outside a city having a population of one million or
 more], upon or after arraignment of a defendant  on  an  information,  a
 simplified  information,  a  prosecutor's  information  or a misdemeanor
 complaint pending in a local criminal court,  such  court  [may]  SHALL,
 upon  motion of the defendant [and after giving the district attorney an
 opportunity to be heard], order that the  action  be  removed  from  the
 court  in which the matter is pending to another local criminal court in
 the same county, or [with consent  of  the  district  attorney  and  the

 S. 2881--A                         11

 district attorney of the adjoining county] to another court in [such] AN
 adjoining  county,  OR  TO  A COURT IN THE COUNTY IN WHICH THE DEFENDANT
 RESIDES that has been designated as a JUDICIAL  DIVERSION,  human  traf-
 ficking  [court], or veterans treatment court by the chief administrator
 of the courts, and such JUDICIAL DIVERSION, human  trafficking  [court],
 or  veterans  treatment  court  [may]  SHALL then conduct such action to
 judgment or other final deposition; provided, however, that no court may
 order removal pursuant to this subdivision to a veterans treatment court
 of a family offense charge  described  in  subdivision  one  of  section
 530.11  of  this  chapter where the accused and the person alleged to be
 the victim of such offense charged are members of  the  same  family  or
 household  as  defined  in  such  subdivision one of section 530.11; and
 provided further that an order of removal issued under this  subdivision
 shall not take effect until five days after the date the order is issued
 [unless,  prior  to  such effective date, the human trafficking court or
 veterans treatment court notifies the court that issued the order that:
   i. it will not accept the action, in which event the order  shall  not
 take effect; or
   ii.  it will accept the action on a date prior to such effective date,
 in which event the order shall take effect upon such prior date.
   (b) Upon providing notification pursuant to subparagraph i  or  ii  of
 paragraph (a) of this subdivision, the human trafficking court or veter-
 ans  treatment court shall promptly give notice to the defendant, his or
 her counsel, and the district attorney].
   § 9. Subdivision 4 of section 180.20 of the criminal procedure law, as
 amended by chapter 91 of the  laws  of  2021,  is  amended  to  read  as
 follows:
   4.  [(a)] Notwithstanding any provision of this section to the contra-
 ry, [in any county outside a city having a population of one million  or
 more,]  upon  or  after arraignment of a defendant on a felony complaint
 pending in a local criminal court having preliminary jurisdiction there-
 of, such court [may] SHALL, upon motion  of  the  defendant  [and  after
 giving the district attorney an opportunity to be heard], order that the
 action  be  removed  from  the  court  in which the matter is pending to
 another local criminal court in the same county, or [with consent of the
 district attorney and the district attorney of the adjoining county]  to
 another  court  in such adjoining county, OR TO A COURT IN THE COUNTY IN
 WHICH THE DEFENDANT RESIDES, that has  been  designated  as  a  JUDICIAL
 DIVERSION, human trafficking [court], or veterans treatment court by the
 chief  administrator  of  the courts, and such JUDICIAL DIVERSION, human
 trafficking [court], or veterans treatment court may then  conduct  such
 action  to  judgment or other final disposition; provided, however, that
 no court may order removal pursuant to this subdivision  to  a  veterans
 treatment  court of a family offense charge described in subdivision one
 of section 530.11 of this chapter  where  the  accused  and  the  person
 alleged to be the victim of such offense charged are members of the same
 family  or  household  as  defined  in  such  subdivision one of section
 530.11; and provided further an  order  of  removal  issued  under  this
 subdivision  shall  not  take  effect until five days after the date the
 order is issued [unless, prior to such effective date, the  human  traf-
 ficking court or veterans treatment court notifies the court that issued
 the order that:
   i.  it  will not accept the action, in which event the order shall not
 take effect; or
   ii. it will accept the action on a date prior to such effective  date,
 in which event the order shall take effect upon such prior date.

 S. 2881--A                         12

   (b)  Upon  providing  notification pursuant to subparagraph i or ii of
 paragraph (a) of this subdivision, the human trafficking court or veter-
 ans treatment court shall promptly give notice to the defendant, his  or
 her counsel and the district attorney].
   §  10. Section 230.21 of the criminal procedure law, as added by chap-
 ter 91 of the laws of 2021, is amended to read as follows:
 § 230.21 Removal of action to certain courts in an adjoining  county  OR
            COUNTY IN WHICH THE DEFENDANT RESIDES.
   1. In any county [outside a city having a population of one million or
 more],  [the]  UPON OR AFTER ARRAIGNMENT OF A DEFENDANT ON AN INDICTMENT
 PENDING IN A SUPERIOR COURT  HAVING  JURISDICTION  THEREOF,  SUCH  court
 [may]  SHALL,  upon  motion  of  the  defendant [and with consent of the
 district attorney and the district attorney of the adjoining county that
 has a superior court designated a human trafficking  court  or  veterans
 treatment  court  by  the chief administrator of the courts], order that
 the indictment and action be removed from the court in which the  matter
 is  pending  to [such] A SUPERIOR COURT IN AN ADJOINING COUNTY OR IN THE
 COUNTY IN WHICH THE DEFENDANT RESIDES THAT HAS BEEN DESIGNATED  A  JUDI-
 CIAL  DIVERSION, human trafficking [court], or veterans treatment court,
 whereupon such court may then conduct such action to judgment  or  other
 final disposition; provided, however, that no court may order removal to
 a  veterans  treatment  court  of  a  family offense charge described in
 subdivision one of section 530.11  of  this  chapter  pursuant  to  this
 section  where  the  accused  and the person alleged to be the victim of
 such offense charged are members of the  same  family  or  household  as
 defined  in such subdivision one of section 530.11; and provided further
 that an order of removal issued under this subdivision  shall  not  take
 effect until five days after the date the order is issued [unless, prior
 to  such  effective date, the human trafficking court or veterans treat-
 ment court notifies the court that issued the order that:
   (a) it will not accept the action, in which event the order shall  not
 take effect, or
   (b)  it will accept the action on a date prior to such effective date,
 in which event the order shall take effect upon such prior date.
   2. Upon providing notification pursuant to paragraph  (a)  or  (b)  of
 subdivision one of this section, the human trafficking court or veterans
 treatment  court shall promptly give notice to the defendant, his or her
 counsel and the district attorney of both counties].
   § 11. Paragraph (r) of subdivision 2 of section 212 of  the  judiciary
 law,  as  added  by  section 15 of part AAA of chapter 56 of the laws of
 2009, is amended to read as follows:
   (r) Ensure that cases eligible  for  judicial  diversion  pursuant  to
 article  two  hundred  sixteen  of  the  criminal procedure law shall be
 assigned to court parts in the manner provided by the chief  administra-
 tor and that, to the extent practicable, such cases are presided over by
 judges  who,  by  virtue of the structure, caseload and resources of the
 parts and the judges' training, are in  the  best  position  to  provide
 effective  supervision  over  such  cases,  such as the [drug] treatment
 courts. In compliance with these  provisions,  the  chief  administrator
 shall  [give  due  weight  to] INDIVIDUALLY ASSESS the need for diverted
 defendants to make regular court appearances, and be closely  supervised
 by  the  court, for the duration of [drug] treatment and the pendency of
 the criminal charge.
   § 12.  This  act shall take effect on the one  hundred  eightieth  day
 after  it shall have become a law; provided, however that the amendments
 to the opening paragraph  of  subdivision  1  of section 216.00  of  the

 S. 2881--A                         13
 
 criminal  procedure law made by section two 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 three of   this   act shall take
 effect.