Assembly Actions - Lowercase Senate Actions - UPPERCASE |
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Jan 05, 2022 | referred to alcoholism and substance abuse |
Dec 15, 2021 | print number 2881b |
Dec 15, 2021 | amend and recommit to alcoholism and substance abuse |
Oct 01, 2021 | print number 2881a |
Oct 01, 2021 | amend (t) and recommit to alcoholism and substance abuse |
Jan 26, 2021 | referred to alcoholism and substance abuse |
senate Bill S2881B
Relates to judicial diversion programs; repealer
Sponsored By
Jessica Ramos
(D, WF) 13th Senate District
Archive: Last Bill Status - In Senate Committee Alcoholism And Substance Abuse Committee
- Introduced
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed/Vetoed by Governor
Your Voice
Actions
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view actions (6)
Co-Sponsors
Alessandra Biaggi
(D, WF) 0 Senate District
Rachel May
(D, WF) 48th Senate District
Julia Salazar
(D, WF) 18th Senate District
Luis R. Sepúlveda
(D) 32nd Senate District
S2881 - Details
- See Assembly Version of this Bill:
- A8524
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Amd Art 216 Art Head, §§216.00, 216.05, 170.15, 180.20 & 230.21, rpld §216.00 sub 1 ¶¶(a) & (b), cl ¶, add §216.10, CP L; amd §212, Judy L
- Versions Introduced in Other Legislative Sessions:
-
2019-2020: S8687
2023-2024: S1976, A1263
S2881 - Sponsor Memo
BILL NUMBER: S2881 SPONSOR: RAMOS TITLE OF BILL: An act to amend the criminal procedure law, in relation to judicial diversion programs; and to repeal certain provisions of such law relat- ing thereto SUMMARY OF PROVISIONS: Section 1: The article heading of article 216 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: JUDICIAL DIVERSION PROGRAM FOR CERTAIN FELONY OFFENDERS Section 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 include within the definition of "Eligible defend- ant:
MISDEMEANOR COMPLAINT OR FELONY COMPLAINT WITH ANY OFFENSE AND HAS A FUNCTIONAL IMPAIRMENT. Section 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 include within the definition of Eligible defendant: MISDEMEANOR COMPLAINT OR FELONY COMPLAINT WITH ANY OFFENSE AND HAS A FUNCTIONAL IMPAIRMENT. Section 4. Paragraphs (a) and (b) and the closing paragraph of subdivi- sion 1 of section 216.00 of the criminal procedure law are REPEALED. Section 5. § 5. Subdivision 2 of section 216.00 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: 2. ALCOHOL AND SUBSTANCE ABUSE "Functional Impairment" Section 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. Section 7. The criminal procedure law is amended by adding a new section 216.1"0 to read as follows: § 216.10 Diversion part established. Section 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. JUSTIFICATION: The Treatment Not Jails Act will ensure that people with mental illness have an off-ramp from the criminal legal system to obtain treatment and support in their communities. One critical vehicle for diversion is mental health treatment courts. Yet mental health courts are not avail- able in every community, and many have significant barrier to access that ensure that, often, the people most in need of mental health inter- ventions are not able to get them. This bill will expand existing law authorizing drug treatment courts to include people with mental health issues and will expand eligibility for the programs to more accused people. New York State's jails and prisons have replaced hospitals as the prima- ry facility for mentally ill individuals. There are more people with serious mental illness on Rikers Island than in any psychiatric hospital in the United States. In 2019, New York City's Correctional Health Services reported that approximately 1,100 people incarcerated in New York City jails - 16 percent of the entire jail population had been diagnosed with serious mental illness. While New York does not collect equivalent data statewide, surveys show that approximately 20 percent of people incarcerated in local jails have a serious mental illness. The experience in our state over the past 40 years shows that we cannot successfully incarcerate our way out of a mental health crisis. We must seek another path. According to a 2015 study from the Center for Court Innovation, only 26 criminal courts statewide have mental health treatment courts. Over three-quarters of mental health courts accept misdemeanors, and nearly two-thirds accept nonviolent felonies. Only seven courts statewide (4 of 6 in NYC and 3 of 20 in the rest of the state) accept violent felonies. Regarding prior criminal history, all courts accept defendants with prior misdemeanor and nonviolent felony convictions. Over half of mental health courts statewide, including all NYC courts, accept defend- ants with prior violent felony convictions.(1) Because there is no stat- ute mandating that courts accept defendants, the sickest people with the longest history of documented serious mental illness are often precluded from the courts altogether. New York is already serving people with substance abuse and alcohol problems better than people with mental illness. In 2009, the New York legislature passed major reforms to the Rockefeller Drug Laws. One component of those reforms was the creation of Article 216 of the Crimi- nal Procedure Law (CPL). Article 216 expanded judicial discretion to provide drug court alterna- tives to certain addicted non-violent offenders without the approval of the district attorney. The Article also established a mechanism to request a judicial hearing on diversion to drug court and allowed for conditional sealing of cases upon graduation from a court-ordered drug diversion program. Prior to the 2009 reforms, the decision to allow defendants to participate in drug court required the consent of the district attorney prosecuting the case. Article 216 eliminated the need for DA consent and established a mechanism for defendants to request a judicial hearing on diversion to drug court.(2) The effects of Article 216 were most profound in upstate counties. As crime and arrests continued to fall in New York City, the number of drug court screens and admissions fell as well. But upstate, the number of admissions of drug court doubled, from 1,036 in 2008 to 2,086 in 2013. A 2013 study of the reforms by the state's Division of Criminal Justice Services following drug court participants for 24 months in the communi- ty after incarceration found that drug court participants had signif- icantly lower recidivism rates than similarly situated offenders who were sentenced to prison. While this data is encouraging, Article 216 does not extend eligibility to drug court to people accused of misdemea- nors or other non-drug related felonies. As our communities work together to dismantle mass incarceration, we must amend Article 216 to create mental health court alternatives for people suffering from functional impairments. This means not only people with substance use disorders or mental illness, but also people with intellectual disabilities, traumatic brain injury, dementia or other conditions that may have contributed to the defendant's involvement in the criminal legal system. This bill also removes significant barriers to entry that ensure that the people most in need of help can get it. It also increases due process protections for people with cases in these courts to ensure that they are not jailed or remanded summarily. Final- ly, the bill extends treatment courts to people charged with misdemeanor offenses. There are thousands of people who are frequently targeted by police and/or arrested for low-level misdemeanors or violations that stem from their functional impairments. These people should also have access to treatment courts. (1)https://www.courtinnovation.org/sites/defaut/files/documents/MHC% 20Policy¤/020Study%20Report Final.pdf (2)https://wwvv.crimonaljustice.ny.gov/drug-law-reform/documents/ dIr-update-report-may-2014.pdf LEGISLATIVE HISTORY: 2020: S8687 Referred to rules FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: To be determined. EFFECTIVE DATE: 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.
S2881 - Bill Text download pdf
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.
Co-Sponsors
Alessandra Biaggi
(D, WF) 0 Senate District
Jabari Brisport
(D, WF) 25th Senate District
Michael Gianaris
(D, WF) 12th Senate District
Pete Harckham
(D, WF) 40th Senate District
- view additional co-sponsors
Brad Hoylman-Sigal
(D, WF) 47th Senate District
Robert Jackson
(D, WF) 31st Senate District
Rachel May
(D, WF) 48th Senate District
Zellnor Myrie
(D) 20th Senate District
Gustavo Rivera
(D, WF) 33rd Senate District
Julia Salazar
(D, WF) 18th Senate District
Luis R. Sepúlveda
(D) 32nd Senate District
S2881A - Details
- See Assembly Version of this Bill:
- A8524
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Amd Art 216 Art Head, §§216.00, 216.05, 170.15, 180.20 & 230.21, rpld §216.00 sub 1 ¶¶(a) & (b), cl ¶, add §216.10, CP L; amd §212, Judy L
- Versions Introduced in Other Legislative Sessions:
-
2019-2020: S8687
2023-2024: S1976, A1263
S2881A - Sponsor Memo
BILL NUMBER: S2881A SPONSOR: RAMOS TITLE OF BILL: 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 SUMMARY OF PROVISIONS: Section 1 amends the title of Article 216 of the criminal procedure law. Section 2 amends the opening paragraph of subdivision 1 of section 216.00 of the criminal procedure law to include within the definition of "Eligible defendant": Misdemeanor complaint or felony complaint with any offense and has a functional impairment. Section 3 amends the opening paragraph of subdivision 1 of section 216.00 of the criminal procedure law to include within the definition of Eligible defendant: Misdemeanor complaint or felony complaint with any offense and has a functional impairment.
Section 4 repeals paragraphs (a) and (b) and the closing paragraph of subdivision 1 of section 216.00 of the criminal procedure law. Section 5 amends existing definitions for judicial diversion courts. Section 6 amends the court procedures for judicial diversion programs in article 216 of the criminal procedure law. Section 7 creates a new subsection that clarifies that each county shall have a diversion part and judges in that part must have additional training, that treatment must come at no cost to the defendant and requires annual reporting by the office of court administration on diversion part outcomes. Section 8 amends section 170.15 of the criminal procedure law to explic- itly authorize judicial diversion court judges to transfer misdemeanor cases in treatment court to the treatment court in the county in which the participant resides so that treatment court participants can receive treatment in the county in which they reside. Section 9 amends section 180.20 of the criminal procedure law to explic- itly authorize judicial diversion court judges to transfer unindicted felonies in treatment court to the treatment court in the county in which the participant resides so that treatment court participants can receive treatment in the county in which they reside. Section 10 amends the title of section 230.21 of the criminal procedure law and amends section 230.21 of the criminal procedure law to explicit- ly authorize judicial diversion court judges to transfer indicted felo- nies in treatment court to the treatment court in the county in which the participant resides so that treatment court participants can receive treatment in the county in which they reside. Section 11 amends section 212 of the judiciary law to reflect the change in the nature of judicial diversion pursuant to the proposed amendments to article 216. Section 12 states that the bill becomes effective within 180 days of signature. LEGISLATIVE INTENT: The legislative intent of the provisions of this article are: 1. To create a judicial diversion program that provides an appropriate therapeutic and trauma-informed response for people with functional impairments; 2. To ensure that treatment provided through the court's judicial diver- sion program is grounded in scientifically validated best practices for recovery and rehabilitation that incorporate harm reduction principles and make harm reduction opportunities in the community available to the participant; 3. To acknowledge that treatment and long-term recovery are most successful when the person seeking treatment is an active and willing participant in their own recovery and that treatment plans are flexible and can be modified throughout the treatment process to meet the partic- ipant's needs; 4. To minimize the harm of incarceration for people with functional impairments by limiting the ability of courts to incarcerate or sanction people who qualify for judicial diversion; and 5. To make judicial diversion programs and treatment accessible to all people with functional impairments who qualify, regardless of where someone lives, their ability to pay for treatment, whether they have attempted treatment in the past or any other barrier to access. JUSTIFICATION: The Treatment Not Jail Act will ensure that New Yorkers with substance use disorders, mental health concerns, and other disabilities have an off-ramp from the criminal legal system to obtain treatment and support in their communities. Currently, mental health or other treatment courts are not available in most counties in the state, and many treatment courts have significant barriers to access that ensure that, often, the people most in need of treatment and support are not able to get them. This bill will expand existing law authorizing drug treatment courts to accept people with mental health concerns, intellectual disabilities and other disabilities that impair their functioning in society. Important- ly, the bill also requires state courts to ensure that people with disa- bilities (as defined by the federal Americans with Disabilities Act) who participate in judicial diversion programs are afforded the protections they are entitled to, pursuant to OLMSTEAD V. L.C., 527 U.S. 581 (1999), while undergoing treatment. This legislation amends Criminal Procedure Law Article 216 to create treatment court alternatives for people with disabilities. This means not only people with substance use disorders or mental illness, but also people with intellectual disabilities, traumatic brain injury, dementia, chronic diseases, significant physical impairments or other conditions that may have contributed to the defendant's involvement in the criminal legal system or that would make jail or prison a crueler outcome than for people without disabilities. The bill also removes significant barriers to entry that ensure that the people most in need of help can get it. The bill increases due process protections for people with cases in these courts to ensure that they are not jailed or remanded summar- ily. Finally, the bill extends treatment courts to people charged with misdemeanor offenses. There are thousands of people who are frequently targeted by police and/or arrested for low-level misdemeanors or violations. To the extent that people are likely to serve jail time related to these charges, these people should also have access to treat- ment courts if they so desire. All participants in judicial diversion programs will be entitled to robust privacy protections afforded by federal law with only limited exceptions. The Treatment Not Jail Act clarifies that admission to a judicial diver- sion program will no longer require a plea of guilty in New York State. A pre-plea, pre-adjudication program preserves due process rights, allows accused people an opportunity to seek treatment, and provides a strong incentive for successful completion. If the participant success- fully completes the program, the charge is dismissed. If the participant does not succeed, the traditional court process can be pursued. This change recognizes the strong body of scientific evidence that shows that long-term success for treatment of addiction or mental illness requires buy-in from the participant. Courts that rely on coercive methods will not achieve the legislature's long-term goal of fostering lasting treat- ment success. Finally, the Treatment Not Jail Act does not exclude participants based on alleged offenses. Data indicates that a person with mental illness is more likely to be a victim of violent crime than the perpetrator. See Noman Ghiasi, Yusra Azhar & Jasbir Singh, "Psychiatric Illness and Criminality," StatPearls (2020). Additionally, studies show that diver- sion programs promote public safety and that people charged with "violent" offenses do just as well in treatment as those charged with "non-violent" ones. Michelle Naples & Henry J. Steadman "Can Persons with Co-occurring Disorders and Violent Charges Be Successfully Diverted?" 2 International Journal of Forensic Mental Health 137-143 (2003). Indeed, most acts of violence committed by people with serious mental illness are carried out when they are not being treated. Treat- ment Advocacy Center, Office of Research and Public Affairs, "Risk Factors For Violence" (June 2016). This bill adopts a smart-on-crime approach to ensuring that people most in need of treatment have access to specialized services they need while also making our communities safer and more resilient. LEGISLATIVE HISTORY: 2020: S.8687 was referred to rules. EFFECTIVE DATE: This act shall take effect within 180 days of being signed into law.
S2881A - Bill Text download pdf
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.
Co-Sponsors
Alessandra Biaggi
(D, WF) 0 Senate District
Jabari Brisport
(D, WF) 25th Senate District
Samra G. Brouk
(D, WF) 55th Senate District
Cordell Cleare
(D) 30th Senate District
- view additional co-sponsors
Michael Gianaris
(D, WF) 12th Senate District
Andrew Gounardes
(D) 26th Senate District
Pete Harckham
(D, WF) 40th Senate District
Brad Hoylman-Sigal
(D, WF) 47th Senate District
Robert Jackson
(D, WF) 31st Senate District
Liz Krueger
(D, WF) 28th Senate District
Rachel May
(D, WF) 48th Senate District
Zellnor Myrie
(D) 20th Senate District
Gustavo Rivera
(D, WF) 33rd Senate District
Julia Salazar
(D, WF) 18th Senate District
Luis R. Sepúlveda
(D) 32nd Senate District
José M. Serrano
(D, WF) 29th Senate District
S2881B (ACTIVE) - Details
- See Assembly Version of this Bill:
- A8524
- Law Section:
- Criminal Procedure Law
- Laws Affected:
- Amd Art 216 Art Head, §§216.00, 216.05, 170.15, 180.20 & 230.21, rpld §216.00 sub 1 ¶¶(a) & (b), cl ¶, add §216.10, CP L; amd §212, Judy L
- Versions Introduced in Other Legislative Sessions:
-
2019-2020: S8687
2023-2024: S1976, A1263
S2881B (ACTIVE) - Sponsor Memo
BILL NUMBER: S2881B SPONSOR: RAMOS TITLE OF BILL: 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 SUMMARY OF PROVISIONS: Section 1 amends the title of Article 216 of the criminal procedure law. Section 2 amends the opening paragraph of subdivision 1 of section 216.00 of the criminal procedure law to include within the definition of "Eligible defendant": Misdemeanor complaint or felony complaint with any offense and has a functional impairment. Section 3 amends the opening paragraph of subdivision 1 of section 216.00 of the criminal procedure law to include within the definition of Eligible defendant: Misdemeanor complaint or felony complaint with any offense and has a functional impairment.
Section 4 repeals paragraphs (a) and (b) and the closing paragraph of subdivision 1 of section 216.00 of the criminal procedure law. Section 5 amends existing definitions for judicial diversion courts. Section 6 amends the court procedures for judicial diversion programs in article 216 of the criminal procedure law. Section 7 creates a new subsection that clarifies that each county shall have a diversion part and judges in that part must have additional training, that treatment must come at no cost to the defendant and requires annual reporting by the office of court administration on diversion part outcomes. Section 8 amends section 170.15 of the criminal procedure law to explic- itly authorize judicial diversion court judges to transfer misdemeanor cases in treatment court to the treatment court in the county in which the participant resides so that treatment court participants can receive treatment in the county in which they reside. Section 9 amends section 180.20 of the criminal procedure law to explic- itly authorize judicial diversion court judges to transfer unindicted felonies in treatment court to the treatment court in the county in which the participant resides so that treatment court participants can receive treatment in the county in which they reside. Section 10 amends the title of section 230.21 of the criminal procedure law and amends section 230.21 of the criminal procedure law to explicit- ly authorize judicial diversion court judges to transfer indicted felo- nies in treatment court to the treatment court in the county in which the participant resides so that treatment court participants can receive treatment in the county in which they reside. Section 11 amends section 212 of the judiciary law to reflect the change in the nature of judicial diversion pursuant to the proposed amendments to article 216. Section 12 states that the bill becomes effective within 180 days of signature. LEGISLATIVE INTENT: The legislative intent of the provisions of this article are: 1. To create a judicial diversion program that provides an appropriate therapeutic and trauma-informed response for people with functional impairments; 2. To ensure that treatment provided through the court's judicial diver- sion program is grounded in scientifically validated best practices for recovery and rehabilitation that incorporate harm reduction principles and make harm reduction opportunities in the community available to the participant; 3. To acknowledge that treatment and long-term recovery are most successful when the person seeking treatment is an active and willing participant in their own recovery and that treatment plans are flexible and can be modified throughout the treatment process to meet the partic- ipant's needs; 4. To minimize the harm of incarceration for people with functional impairments by limiting the ability of courts to incarcerate or sanction people who qualify for judicial diversion; and 5. To make judicial diversion programs and treatment accessible to all people with functional impairments who qualify, regardless of where someone lives, their ability to pay for treatment, whether they have attempted treatment in the past or any other barrier to access. JUSTIFICATION: The Treatment Not Jail Act will ensure that New Yorkers with substance use disorders, mental health concerns, and other disabilities have an off-ramp from the criminal legal system to obtain treatment and support in their communities. Currently, mental health or other treatment courts are not available in most counties in the state, and many treatment courts have significant barriers to access that ensure that, often, the people most in need of treatment and support are not able to get them. This bill will expand existing law authorizing drug treatment courts to accept people with mental health concerns, intellectual disabilities and other disabilities that impair their functioning in society. Important- ly, the bill also requires state courts to ensure that people with disa- bilities (as defined by the federal Americans with Disabilities Act) who participate in judicial diversion programs are afforded the protections they are entitled to, pursuant to OLMSTEAD V. L.C., 527 U.S. 581 (1999), while undergoing treatment. This legislation amends Criminal Procedure Law Article 216 to create treatment court alternatives for people with disabilities. This means not only people with substance use disorders or mental illness, but also people with intellectual disabilities, traumatic brain injury, dementia, chronic diseases, significant physical impairments or other conditions that may have contributed to the defendant's involvement in the criminal legal system or that would make jail or prison a crueler outcome than for people without disabilities. The bill also removes significant barriers to entry that ensure that the people most in need of help can get it. The bill increases due process protections for people with cases in these courts to ensure that they are not jailed or remanded summar- ily. Finally, the bill extends treatment courts to people charged with misdemeanor offenses. There are thousands of people who are frequently targeted by police and/or arrested for low-level misdemeanors or violations. To the extent that people are likely to serve jail time related to these charges, these people should also have access to treat- ment courts if they so desire. All participants in judicial diversion programs will be entitled to robust privacy protections afforded by federal law with only limited exceptions. The Treatment Not Jail Act clarifies that admission to a judicial diver- sion program will no longer require a plea of guilty in New York State. A pre-plea, pre-adjudication program preserves due process rights, allows accused people an opportunity to seek treatment, and provides a strong incentive for successful completion. If the participant success- fully completes the program, the charge is dismissed. If the participant does not succeed, the traditional court process can be pursued. This change recognizes the strong body of scientific evidence that shows that long-term success for treatment of addiction or mental illness requires buy-in from the participant. Courts that rely on coercive methods will not achieve the legislature's long-term goal of fostering lasting treat- ment success. Finally, the Treatment Not Jail Act does not exclude participants based on alleged offenses. Data indicates that a person with mental illness is more likely to be a victim of violent crime than the perpetrator. See Noman Ghiasi, Yusra Azhar & Jasbir Singh, "Psychiatric Illness and Criminality," StatPearls (2020). Additionally, studies show that diver- sion programs promote public safety and that people charged with "violent" offenses do just as well in treatment as those charged with "non-violent" ones. Michelle Naples & Henry J. Steadman "Can Persons with Co-occurring Disorders and Violent Charges Be Successfully Diverted?" 2 International Journal of Forensic Mental Health 137-143 (2003). Indeed, most acts of violence committed by people with serious mental illness are carried out when they are not being treated. Treat- ment Advocacy Center, Office of Research and Public Affairs, "Risk Factors For Violence" (June 2016). This bill adopts a smart-on-crime approach to ensuring that people most in need of treatment have access to specialized services they need while also making our communities safer and more resilient. LEGISLATIVE HISTORY: 2020: S.8687 was referred to rules. EFFECTIVE DATE: This act shall take effect within 180 days of being signed into law.
S2881B (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 2881--B 2021-2022 Regular Sessions I N S E N A T E January 26, 2021 ___________ Introduced by Sens. RAMOS, BIAGGI, BRISPORT, GIANARIS, HARCKHAM, HOYL- MAN, JACKSON, MAY, MYRIE, RIVERA, 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 committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee 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 section 1 of chapter 435 of the laws of 2021, 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-two of the penal law, an offense defined in sections 105.10 and 105.13 of the penal law provided that the underlying crime for the conspiracy charge is a class B, C, D or E felony offense defined in article one hundred seventy-nine, two hundred twenty or two hundred twenty-two of the penal law, auto stripping in the second degree as defined in section 165.10 of the penal law, auto stripping in the first degree as defined in section 165.11 of the penal law, identity theft in the second degree as defined in section 190.79 of the penal EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD06635-06-1
S. 2881--B 2 law, identity theft in the first degree as defined in section 190.80 of the penal law, or any other specified offense as defined in subdivision five 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. § 3. The opening paragraph of subdivision 1 of section 216.00 of the criminal procedure law, as amended by section 2 of chapter 435 of the laws of 2021, 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- two of the penal law, an offense defined in sections 105.10 and 105.13 of the penal law provided that the underlying crime for the conspiracy charge is a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twenty-two of the penal law, auto strip- ping in the second degree as defined in section 165.10 of the penal law, auto stripping in the first degree as defined in section 165.11 of the penal law, identity theft in the second degree as defined in section 190.79 of the penal law, identity theft in the first degree as defined in section 190.80 of the penal law, or any other specified offense as defined in subdivision five 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 amended by chapter 435 of the laws of 2021, is amended and three new subdivisions 3, 5 and 6 are added to read as follows: 2. ["Alcohol and substance use 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 use disorder, or] CLINI- CIAN QUALIFIED TO IDENTIFY FUNCTIONAL IMPAIRMENTS AS DEFINED IN SUBDI- VISION THREE OF THIS SECTION OR AN EVALUATION CONDUCTED by an addiction and substance [abuse] USE DISORDER counselor credentialed by the office of 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 use disorder] 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 statis- tical manual of mental disorders, [fifth edition, and a co-occurring mental disorder or mental illness and the relationship between such use and mental disorder or mental illness,] if any; S. 2881--B 3 (b) a recommendation as to whether the defendant's [alcohol or substance use] 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 use 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- 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 amended by chap- ter 435 of the laws of 2021, 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 use] A CLINICAL evalu- ation 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 use, alcohol use 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 use] CLINICAL evaluation report, the court shall provide a copy of the report to the eligible defendant and the [prosecutor] DEFENDANT'S COUNSEL. S. 2881--B 4 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 use] 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 use] 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: (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 five of section 410.91 of this chapter, or section 165.10, 165.11, 190.79 or 190.80 of the penal law, 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 use; (iii) such alcohol or substance use] THE DEFENDANT'S FUNCTIONAL IMPAIRMENT is LIKELY a contributing factor to [the defendant'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 [use] 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 use] treatment, or when the parties and the court agree to [an eligible defendant's participation in alcohol or substance use] treatment, an eligible defendant [may] SHALL be allowed to participate in the judicial diversion program offered by this arti- cle. [Prior to the court's issuing an order granting judicial diver- sion, 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: S. 2881--B 5 (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. (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 use] 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 use 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 urinaly- sis; (ii)] BE AN ELECTRONIC APPEARANCE PURSUANT TO SECTION 182.20 OF THIS PART UPON CONSENT OF THE PARTICIPANT. THE COURT SHALL CONSIDER THE PARTICIPANT'S SERVICE ENGAGEMENT AND TREATMENT NEEDS WHEN SCHEDULING 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 S. 2881--B 6 (G) a requirement that the [defendant] PARTICIPANT refrain from engag- ing in criminal behaviors[; (iii) if the defendant needs treatment for opioid use, that he or she]. 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: (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, 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 use] treatment shall begin as specified by the court and as soon as practicable after the [defendant's] PARTIC- IPANT'S release, taking into account the availability of treatment, so as to facilitate early intervention with respect to the [defendant's substance use or condition] PARTICIPANT'S FUNCTIONAL IMPAIRMENT 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] 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 S. 2881--B 7 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] PARTICIPANT to (i) reside in another jurisdiction, [or] AND/OR (ii) participate in [alcohol and substance use] treatment and other programs in the jurisdiction where the defendant resides or in any other juris- diction, 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 PART, SUBDIVISION FOUR OF SECTION 180.20 OF THIS PART, OR SECTION 230.21 OF THIS PART TO ENSURE CONTINUITY OF TREATMENT. (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 use] 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 use 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 COUN- SEL, 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- S. 2881--B 8 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- 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 CONDI- TION ON THE 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. (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 use] PARTICIPANT'S INTER- S. 2881--B 9 EST 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 use or by failing to comply fully with all requirements imposed by a treatment program] IN RECOVERY AND TREATMENT. (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 use] treat- ment 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. PRIOR TO SUCH TERMI- NATION, 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. [(e)] (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 contra- ry, 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 use] 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, S. 2881--B 10 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 use] treatment. § 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 S. 2881--B 11 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 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- S. 2881--B 12 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. (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 S. 2881--B 13 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 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.
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