A. 4869 2
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:], INFORMATION, MISDEMEANOR
COMPLAINT OR FELONY COMPLAINT WITH ANY OFFENSE AND HAS A QUALIFYING
DIAGNOSIS. PROVIDED, HOWEVER, THAT A DEFENDANT IS NOT AN "ELIGIBLE
DEFENDANT" IF THEY ARE CHARGED WITH: (A) A CLASS A FELONY OFFENSE
DEFINED IN THE PENAL LAW, OTHER THAN A CLASS A FELONY OFFENSE PURSUANT
TO ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW; OR (B) A CLASS B FELONY
OFFENSE PURSUANT TO ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW;
PROVIDED FURTHER, HOWEVER, THAT UPON INDIVIDUALIZED CONSIDERATION, AND
WITH CONSENT OF THE PROSECUTOR, THE COURT MAY DEEM AN INDIVIDUAL AN
ELIGIBLE DEFENDANT WHO OTHERWISE DOES NOT MEET THE ABOVE-LISTED CRITE-
RIA.
§ 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:],
INFORMATION, MISDEMEANOR COMPLAINT OR FELONY COMPLAINT WITH ANY OFFENSE
AND HAS A QUALIFYING DIAGNOSIS. PROVIDED, HOWEVER, THAT A DEFENDANT IS
NOT AN "ELIGIBLE DEFENDANT" IF THEY ARE CHARGED WITH: (A) A CLASS A
FELONY OFFENSE DEFINED IN THE PENAL LAW, OTHER THAN A CLASS A FELONY
OFFENSE PURSUANT TO ARTICLE TWO HUNDRED TWENTY OF THE PENAL LAW; OR (B)
A CLASS B FELONY OFFENSE PURSUANT TO ARTICLE ONE HUNDRED THIRTY OF THE
PENAL LAW; PROVIDED FURTHER, HOWEVER, THAT UPON INDIVIDUALIZED CONSIDER-
ATION, AND WITH CONSENT OF THE PROSECUTOR, THE COURT MAY DEEM AN INDI-
VIDUAL AN ELIGIBLE DEFENDANT WHO OTHERWISE DOES NOT MEET THE ABOVE-LIST-
ED CRITERIA.
§ 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 eight new
subdivisions 3, 4, 6, 7, 8, 9, 10 and 11 are added to read as follows:
2. ["Alcohol and substance use evaluation"] "PARTICIPANT" MEANS AN
ELIGIBLE DEFENDANT WHO HAS BEEN ADMITTED INTO JUDICIAL DIVERSION PURSU-
ANT TO THIS ARTICLE.
3. "LICENSED MENTAL HEALTH CARE PROFESSIONAL" MEANS A CLINICIAN WITH
PROFESSIONAL EXPERIENCE, TRAINING AND LICENSURE PURSUANT TO TITLE EIGHT
OF THE EDUCATION LAW WHO IS QUALIFIED TO DIAGNOSE OR TREAT PEOPLE WITH
MENTAL HEALTH DISORDERS, INCLUDING SUBSTANCE-RELATED AND ADDICTIVE
DISORDERS.
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4. "QUALIFYING DIAGNOSIS" MEANS A MENTAL HEALTH DIAGNOSIS OR MORE THAN
ONE MENTAL HEALTH DIAGNOSES THAT QUALIFIES AN INDIVIDUAL FOR ADMISSION
TO JUDICIAL DIVERSION. THIS IS A DIAGNOSIS-BASED CATEGORIZATION CONSIST-
ING OF THE FOLLOWING MENTAL HEALTH DISORDERS DESCRIBED IN THE MOST
RECENT VERSION OF THE DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISOR-
DERS:
(A) SERIOUS MENTAL DISORDERS SUCH AS: SCHIZOPHRENIA SPECTRUM AND OTHER
PSYCHOTIC DISORDERS, BIPOLAR AND RELATED DISORDERS, DEPRESSIVE DISOR-
DERS, AND POST-TRAUMATIC STRESS DISORDER; OR
(B) OTHER MENTAL HEALTH DISORDERS, INCLUDING BUT NOT LIMITED TO NEURO-
DEVELOPMENTAL OR NEUROCOGNITIVE DISORDERS, WHERE ASSOCIATED SYMPTOMS
LEAD TO SEVERE FUNCTIONAL IMPAIRMENT; OR
(C) SUBSTANCE USE DISORDERS AND SUBSTANCE-INDUCED DISORDERS.
5. "CLINICAL EVALUATION" means a written assessment and report by a
court-approved entity or licensed MENTAL health care professional [expe-
rienced in the treatment of alcohol and substance use disorder, or] AS
DEFINED IN SUBDIVISION THREE OF THIS SECTION OR AN EVALUATION CONDUCTED
by an addiction and substance [abuse] USE DISORDER counselor creden-
tialed by the office of addiction services and supports pursuant to
section 19.07 of the mental hygiene law[, which]. SUCH EVALUATION MAY BE
CONDUCTED THROUGH TELEHEALTH WHEN PRACTICABLE AND WHEN DELAY WOULD
OTHERWISE OCCUR. THE EVALUATION shall include:
(a) an evaluation as to whether the defendant CURRENTLY has [a history
of alcohol or substance use disorder, as such terms are defined in the
diagnostic and statistical manual of mental disorders, fifth edition,
and a co-occurring mental disorder or mental illness and the relation-
ship between such use and mental disorder or mental illness,] ONE OR
MORE QUALIFYING DIAGNOSES, if any;
(b) a recommendation as to whether the defendant's [alcohol or
substance use] QUALIFYING DIAGNOSIS, 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] QUALIFYING DIAGNOSIS; and
(d) any other information, factor, circumstance, or recommendation
deemed relevant by the assessing entity or specifically requested by the
court.
6. "TREATMENT" MEANS ONE OR MORE EVIDENCE-BASED INTERVENTIONS INCLUD-
ING, BUT NOT LIMITED TO, COUNSELING, PSYCHOTHERAPY, PSYCHOTROPIC MEDICA-
TION OR MEDICATIONS FOR ADDICTION OR SUBSTANCE USE DISORDER TREATMENT,
HEALTH PROMOTION, AND OVERDOSE PREVENTION EDUCATION. TREATMENT FOR THE
PURPOSES OF THIS ARTICLE DOES NOT INCLUDE TREATMENT IN A CARCERAL
SETTING OR IN A FORENSIC HOSPITAL PURSUANT TO ARTICLE SEVEN HUNDRED
THIRTY OF THIS CHAPTER. FOR SUBSTANCE USE DISORDERS, TREATMENT INCLUDES
ANY CLINICAL SERVICE OR INTERVENTION THAT ASSISTS INDIVIDUALS IN THEIR
RECOVERY IN ACCORDANCE WITH HARM REDUCTION PRINCIPLES.
7. "TREATMENT PROVIDER" MEANS A PERSON OR ORGANIZATION QUALIFIED TO
PROVIDE INTERVENTIONS RESPONSIVE TO THE NEEDS IDENTIFIED IN THE CLINICAL
EVALUATION OR AFTER A PERSON HAS BEEN ADMITTED TO TREATMENT.
8. "HARM REDUCTION" MEANS A SET OF PROVEN-EFFECTIVE SUBSTANCE USE
INTERVENTION STRATEGIES THAT OFFER LOW-THRESHOLD ACCESS TO TREATMENT
WITH THE GOAL OF REDUCING THE NEGATIVE CONSEQUENCES OF SUBSTANCE USE,
PREVENTING OVERDOSE AND THE TRANSMISSION OF INFECTIOUS DISEASES, AND/OR
IMPROVING THE PHYSICAL, MENTAL, AND SOCIAL WELL-BEING OF THOSE SERVED.
IN SOME CASES, AS IDENTIFIED BY A LICENSED MENTAL HEALTH CARE PROFES-
A. 4869 4
SIONAL OR A TREATMENT PROVIDER, HARM REDUCTION INTERVENTIONS MAY RECOG-
NIZE THAT COMPLETE ABSTINENCE IS NOT REALISTICALLY ATTAINABLE AND MAY
INSTEAD AIM TO ACHIEVE A SIGNIFICANT REDUCTION OR CHANGE IN USE.
9. "CERTIFIED PEERS" MEANS PROFESSIONALS WHO HAVE THE LIVED EXPERIENCE
OF SUCCESSFULLY NAVIGATING RECOVERY-ORIENTED SYSTEMS OF CARE WHO ARE
CERTIFIED BY THE OFFICE OF MENTAL HEALTH OR BY THE OFFICE OF ADDICTION
SERVICES AND SUPPORTS TO PROVIDE PEER SUPPORT SERVICES. THE PEER MODEL
SHOULD BE INTEGRATED INTO EVERY STAGE OF THE JUDICIAL DIVERSION PROCESS.
10. "TREATMENT PLAN" MEANS AN INDIVIDUALIZED PLAN DEVELOPED BY A
LICENSED MENTAL HEALTH CARE PROFESSIONAL OR A TREATMENT PROVIDER IN
CONJUNCTION WITH AN ELIGIBLE DEFENDANT, WHICH MAY INCLUDE ANY COMBINA-
TION OF TREATMENT INTERVENTIONS IDENTIFIED IN SUBDIVISION SIX OF THIS
SECTION. PROVIDED THAT:
(A) TREATMENT SHOULD OCCUR IN THE SETTING OR SETTINGS THAT ARE MOST
APPROPRIATE TO THE INDIVIDUAL'S MEDICAL NEEDS AND TAKING INTO CONSIDER-
ATION POSSIBLE EMPLOYMENT, FAMILY, SOCIAL, AND HOUSING DISRUPTIONS.
(B) SUCH TREATMENT PLAN SHALL TAKE INTO CONSIDERATION THE BEST PRAC-
TICES FOR ADDRESSING ANY QUALIFYING DIAGNOSIS IDENTIFIED DURING THE
CLINICAL EVALUATION AND ANY EVIDENCE-BASED AND PEER-REVIEWED CLINICAL
REVIEW CRITERIA THAT IS RELEVANT TO THE IDENTIFIED QUALIFYING DIAGNOSIS,
APPROPRIATE TO THE AGE OF THE PATIENT AND HAS BEEN DESIGNATED OR
APPROVED BY THE APPROPRIATE STATE AGENCY OR AGENCIES, INCLUDING BUT NOT
LIMITED TO, THE OFFICE OF MENTAL HEALTH, THE OFFICE OF ADDICTION
SERVICES AND SUPPORTS, AND THE OFFICE FOR PEOPLE WITH DEVELOPMENTAL
DISABILITIES.
(C) A TREATMENT PLAN MAY INCLUDE TREATMENT THROUGH TELEHEALTH WHEN
DEEMED APPROPRIATE BY A LICENSED MENTAL HEALTH CARE PROFESSIONAL OR A
TREATMENT PROVIDER.
(D) A LICENSED MENTAL HEALTH CARE PROFESSIONAL OR A TREATMENT PROVIDER
MAY MODIFY A TREATMENT PLAN AFTER THE PARTICIPANT HAS BEEN ADMITTED TO
THE JUDICIAL DIVERSION PROGRAM WITH THE INPUT OF THE PARTICIPANT WHERE
THE LICENSED MENTAL HEALTH CARE PROFESSIONAL OR TREATMENT PROVIDER DEEMS
SUCH MODIFICATION TO BE CLINICALLY APPROPRIATE.
11. "PROTECTED HEALTH INFORMATION" MEANS INFORMATION PROTECTED BY
FEDERAL AND STATE LAWS AND REGULATIONS GOVERNING THE PRIVACY OF PERSON-
ALLY-IDENTIFIABLE MEDICAL INFORMATION, IN ACCORDANCE WITH FEDERAL HEALTH
INSURANCE PORTABILITY AND ACCOUNTABILITY ACT PRIVACY RULE (45 CODE OF
FEDERAL REGULATIONS PARTS 160 AND 164), 42 UNITED STATES CODE § 290DD-2
(42 CODE OF FEDERAL REGULATIONS PART 2), SECTION 33.13 OF THE MENTAL
HYGIENE LAW, ARTICLE TWENTY-SEVEN-F OF THE PUBLIC HEALTH LAW ("HIV AND
AIDS RELATED INFORMATION"), AND ANY OTHER RELEVANT HEALTH PRIVACY LAWS
AND REGULATIONS.
§ 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
eligible defendant], but prior to the entry of a plea of guilty or the
commencement of trial, the court, at the request of [the eligible] A
defendant WHO THE COURT HAS REASON TO BELIEVE HAS A QUALIFYING
DIAGNOSIS, [may] SHALL order [an alcohol and substance use] A CLINICAL
evaluation FOR ALL KNOWN QUALIFYING DIAGNOSES, PROVIDED THAT A COURT
MAY, IN ITS DISCRETION, ADOPT AN EVALUATION THAT HAS ALREADY BEEN
COMPLETED IN LIEU OF ORDERING A CLINICAL EVALUATION. THE COURT MAY
REQUIRE THE DEFENDANT TO MAKE A PRIMA FACIE SHOWING THAT THE DEFENDANT
HAS ONE OR MORE QUALIFYING DIAGNOSES PRIOR TO ORDERING A CLINICAL EVALU-
A. 4869 5
ATION. A REQUEST BY A DEFENDANT TO BE EVALUATED SHALL BE MADE AS SOON AS
PRACTICABLE. 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 SUBDIVISIONS ONE AND
TWO OF SECTION 30.30 OF THIS CHAPTER.
[An eligible] (B) A defendant may decline to [participate in] UNDERGO
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
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]
(C) NO STATEMENT, DISCLOSURE, OR REPRESENTATION MADE BY THE DEFENSE
FOR THE PURPOSE OF PROVIDING RELEVANT INFORMATION TO THE COURT IN THE
APPLICATION PROCESS SHALL BE USED BY THE PROSECUTION TO PROVE ANY CRIME
OR OFFENSE ALLEGED IN THE PENDING CASE.
(D) NO STATEMENT OR OTHER DISCLOSURE, WRITTEN OR OTHERWISE, MADE BY A
DEFENDANT TO A LICENSED MENTAL HEALTH CARE PROFESSIONAL OR TREATMENT
PROVIDER MAY BE USED BY THE PROSECUTION TO PROVE ANY CRIME OR OFFENSE
ALLEGED IN THE PENDING CASE.
2. Upon [receipt of the completed alcohol and substance use]
COMPLETION OF THE CLINICAL evaluation [report], the [court] CLINICIAN
shall provide a copy of the report to the [eligible] defendant and the
[prosecutor] DEFENDANT'S COUNSEL. THE COURT AND THE PROSECUTOR SHALL
RECEIVE A COPY OF THE CLINICAL EVALUATION ONLY IF THE DEFENDANT DECIDES
TO PROCEED IN REQUESTING JUDICIAL DIVERSION. WHERE THE DEFENDANT
DECIDES TO PROCEED IN REQUESTING JUDICIAL DIVERSION, THEY SHALL CONSENT
TO DISCLOSURE OF THEIR PROTECTED HEALTH INFORMATION WITH THE COURT AND
PROSECUTOR.
3. (a) [Upon receipt of the evaluation report either] EITHER party may
request a hearing on the issue of whether the [eligible] defendant IS AN
ELIGIBLE DEFENDANT AND should be offered [alcohol or substance use
treatment] JUDICIAL DIVERSION pursuant to this article. At such a
proceeding, which shall be held as soon as practicable so as to facili-
tate early intervention in the event that the defendant 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
A. 4869 6
chapter] EXCEPT SEALED CASES DEFINED IN SECTION 160.50, 160.55, OR
106.57 OF THIS CHAPTER. RELIABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH
HEARINGS. THE COURT SHALL EXPLAIN ITS DECISION ON THE RECORD OR IN WRIT-
ING.
(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 QUALIFYING DIAG-
NOSIS 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] QUALIFYING DIAGNOSIS; [and]
(IV) THE DEFENDANT'S QUALIFYING DIAGNOSIS CAN BE EFFECTIVELY TREATED
BY EXISTING TREATMENT PROVIDERS;
(v) institutional confinement of the defendant is or may not be neces-
sary for the protection of the public; AND
(VI) THE DEFENDANT'S ACCESS TO TREATMENT THROUGH THIS ARTICLE WOULD
BENEFIT THE PUBLIC AND 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 use] treatment, or when the parties and
the court agree to [an eligible defendant's participation in alcohol or
substance use] treatment, [an] SUCH 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 UNLESS THEY ARE CHARGED WITH
A FELONY ENUMERATED IN SECTION 70.02 OF THE PENAL LAW, OTHER THAN
ROBBERY IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION ONE OF SECTION
160.10 OF THE PENAL LAW; PROVIDED, HOWEVER, THAT INDIVIDUALS CHARGED
WITH BURGLARY IN THE SECOND DEGREE AS DEFINED IN SUBDIVISION TWO OF
SECTION 140.25 OF THE PENAL LAW MAY ONLY BE REQUIRED TO ENTER A PLEA OF
GUILTY TO PARTICIPATE IN JUDICIAL DIVERSION WHERE THE DEFENDANT IS
CHARGED WITH ENTERING THE LIVING AREA OF THE DWELLING. INDIVIDUALS WHO
HAVE BEEN DEEMED ELIGIBLE BY THE COURT PURSUANT TO PARAGRAPH (C) OF
SUBDIVISION ONE OF SECTION 216.00 OF THIS ARTICLE MAY BE REQUIRED TO
SUBMIT A PLEA OF GUILTY TO PARTICIPATE IN JUDICIAL DIVERSION.
(C) UPON INDIVIDUALIZED CONSIDERATION, A COURT MAY AUTHORIZE ADMISSION
INTO JUDICIAL DIVERSION FOR INDIVIDUALS CHARGED WITH OFFENSES ENUMERATED
IN PARAGRAPH (B) OF THIS SUBDIVISION WITHOUT A PLEA OF GUILTY WHERE THE
COURT FINDS THAT A GUILTY PLEA IS NOT NECESSARY TO ENSURE SUCCESSFUL
PARTICIPATION IN JUDICIAL DIVERSION OR THAT A GUILTY PLEA IS LIKELY TO
RESULT IN SIGNIFICANT COLLATERAL CONSEQUENCES.
A. 4869 7
(D) NOTWITHSTANDING THE PLEA RESTRICTIONS STATED IN ARTICLE TWO
HUNDRED TWENTY OF THIS PART, A PLEA OF GUILTY UNDER PARAGRAPH (B) OF
THIS SUBDIVISION SHALL BE ACCOMPANIED BY AN AGREEMENT BETWEEN ALL
PARTIES THAT CLEARLY OUTLINES THE FOLLOWING:
(I) THE CHARGE AND FINAL DISPOSITION AND SENTENCE THAT THE PARTICIPANT
COULD FACE IF THEY FAIL TO COMPLETE JUDICIAL DIVERSION; AND
(II) THE CHARGE AND FINAL DISPOSITION AND SENTENCE THE PARTICIPANT IS
ENTITLED TO RECEIVE UPON SUCCESSFUL COMPLETION OF JUDICIAL DIVERSION IN
ACCORDANCE WITH PARAGRAPH (E) OF THIS SUBDIVISION.
(E) NOTWITHSTANDING THE PLEA RESTRICTIONS STATED IN ARTICLE TWO
HUNDRED TWENTY OF THIS PART, WHERE A PLEA OF GUILTY IS REQUIRED UNDER
PARAGRAPH (B) OF THIS SUBDIVISION, THE COURT MAY REQUIRE A PLEA TO ONE
OR MORE COUNTS IN THE ACCUSATORY INSTRUMENT AND ANY ADDED FELONY, MISDE-
MEANOR OR VIOLATION OFFENSE NOT INCLUDED IN THE ACCUSATORY INSTRUMENT IF
THOSE CHARGES HAVE BEEN AGREED UPON PURSUANT TO SUBPARAGRAPHS (I) AND
(II) OF PARAGRAPH (D) OF THIS SUBDIVISION. UPON SUCCESSFUL COMPLETION
OF THE TREATMENT PLAN, IF THE PARTICIPANT PLED GUILTY TO A FELONY
CHARGE, THE COURT SHALL ALLOW THE PARTICIPANT TO WITHDRAW THE GUILTY
PLEA AND DISMISS THAT CHARGE, AND OTHERWISE EXECUTE THE AGREEMENT PURSU-
ANT TO SUBPARAGRAPH (II) OF PARAGRAPH (D) OF THIS SUBDIVISION; PROVIDED,
HOWEVER, THAT IN THE INTEREST OF JUSTICE, THE COURT MAY ALSO DISMISS ANY
REMAINING CHARGES. UNDER NO CIRCUMSTANCES SHALL A PARTICIPANT WHO
SUCCESSFULLY COMPLETES JUDICIAL DIVERSION RECEIVE A SENTENCE OF INCAR-
CERATION.
(F) WHERE A GUILTY PLEA IS REQUIRED PURSUANT TO THIS ARTICLE, THE
COURT MAY ORDER TREATMENT TO BEGIN AND DEFER THE ENTRY OF THE PLEA UNTIL
SUCH TIME AS THE PARTICIPANT IS ABLE TO ENTER A PLEA KNOWINGLY, INTELLI-
GENTLY, AND VOLUNTARILY.
(G) PRIOR PARTICIPATION IN TREATMENT OR COURT-MANDATED TREATMENT SHALL
NOT PRECLUDE FUTURE TREATMENT PARTICIPATION.
(H) AN ELIGIBLE DEFENDANT SHALL NOT BE PRECLUDED FROM DIVERSION
BECAUSE OF THEIR GENDER IDENTITY.
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] MAY 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 detoxifi-
cation, residential or outpatient treatment, or both, as determined
after taking into account the views of the health care professional who
conducted the alcohol and substance 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)]
(A) PARTICIPATION IN THE TREATMENT PLAN;
(B) periodic court appearances, which, UPON CONSENT OF THE PARTIC-
IPANT, may [include periodic urinalysis; (ii)] BE AN ACCESSIBLE AUDIO OR
VIDEO APPEARANCE, NOTWITHSTANDING THE PROVISIONS OF ARTICLE ONE HUNDRED
EIGHTY-TWO OF THIS PART. WHEN SCHEDULING COURT APPEARANCES AND DETERMIN-
ING THE TYPE OF APPEARANCE REQUIRED, THE COURT SHALL CONSIDER THE
PARTICIPANT'S TREATMENT PROGRESS AND SHALL ATTEMPT TO AVOID UNDUE HARD-
SHIP, INCLUDING BUT NOT LIMITED TO, TREATMENT INTERRUPTIONS, THE COST OF
TRANSPORTATION, MOBILITY ISSUES, CHILDCARE AND EMPLOYMENT DISRUPTIONS.
UPON APPLICATION BY DEFENSE COUNSEL AND WITH THE CONSENT OF THE PARTIC-
IPANT, THE COURT SHALL CONSIDER WAIVING THE APPEARANCE OF THE PARTIC-
IPANT;
(C) PERIODIC DRUG SCREENING AS NEEDED, WHEN RECOMMENDED BY THE TREAT-
MENT PROVIDER AS PART OF A PARTICIPANT'S TREATMENT PLAN. DRUG SCREENING
A. 4869 8
SHALL COMPORT WITH THE OFFICE OF ADDICTION SERVICES AND SUPPORTS' GUID-
ANCE ON TOXICOLOGY USE;
(D) 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];
(E) A REQUIREMENT THAT PARTICIPATION IN THE TREATMENT PLAN MAY BE
FACILITATED BY MEMBERS OF THE TREATMENT COURT TEAM; PROVIDED, HOWEVER,
THAT THERE SHALL BE NO COMMUNITY SUPERVISION OR MONITORING OF THE
PARTICIPANT CONDUCTED BY ANY LAW ENFORCEMENT PERSONNEL, INCLUDING THOSE
DEFINED BY SECTIONS 1.20 AND 2.10 OF THE CRIMINAL PROCEDURE LAW, UNLESS
THE COURT DETERMINES THAT THERE ARE NO ALTERNATIVE ENTITIES IN THE LOCAL
JURISDICTION AVAILABLE TO PROVIDE THESE SERVICES; OR
(F) A REQUIREMENT THAT UNDER NO CONDITION SHALL MEMBERS OF THE TREAT-
MENT COURT TEAM: CONDUCT UNANNOUNCED SEARCHES OF THE PARTICIPANT'S HOME;
SET CURFEWS, OTHER THAN THOSE ESTABLISHED BY A RESIDENTIAL FACILITY; SET
LOCATION RESTRICTIONS; OR LIMIT FAMILY AND PEER RELATIONSHIPS.
5-A. THE COURT SHALL NOT DISCLOSE A PARTICIPANT'S PROTECTED HEALTH
INFORMATION WITHOUT THE PARTICIPANT'S CONSENT OR AUTHORIZATION;
PROVIDED, HOWEVER, THAT A COURT MAY REQUIRE A PARTICIPANT TO CONSENT TO
SHARE THE FOLLOWING PROTECTED HEALTH INFORMATION AS A CONDITION OF
PARTICIPATING IN JUDICIAL DIVERSION:
(A) RECORD OF ATTENDANCE AND RELEVANT BARRIERS TO ATTENDANCE;
(B) TREATMENT PLAN AND ANY RECOMMENDED CHANGES TO THE PLAN DURING
PARTICIPATION IN JUDICIAL DIVERSION;
(C) DRUG TOXICOLOGY RESULTS, WHEN PART OF THE TREATMENT PLAN; AND
(D) RELEVANT UPDATES REGARDING ENGAGEMENT IN THE TREATMENT PLAN.
5-B. IF A PARTICIPANT HAS ONE OR MORE CONDITIONS REQUIRING
PRESCRIPTION MEDICATION OR CERTIFIED DRUG TREATMENTS THEY may partic-
ipate in and receive [medically prescribed] SUCH MEDICATION OR 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] THEIR lawful scope of practice[, provided that no].
(A) NO COURT SHALL LIMIT THE MEDICATIONS THAT A LICENSED HEALTH CARE
PROFESSIONAL HAS PRESCRIBED OR CERTIFIED FOR A PARTICIPANT;
(B) NO court shall require the use of any specified type or brand of
drug during the course of medically prescribed [drug] treatments[.]; AND
(C) NO COURT SHALL PENALIZE OR SANCTION A PARTICIPANT FOR PERIODS OF
VOLUNTARY HOSPITALIZATION, RESPITE CARE, OR OTHER FORMS OF SUPPORTIVE
CARE.
5-C. EVERY EFFORT SHOULD BE MADE TO MAXIMIZE THE USE OF CERTIFIED
PEERS IN EVERY STAGE OF THE JUDICIAL DIVERSION PROCESS.
5-D. UPON REQUEST BY THE DEFENSE, THE COURT SHALL ALLOW PARTICIPANTS
TO CONSULT A DIFFERENT MENTAL HEALTH CARE PROFESSIONAL FOR A SECOND
OPINION AND PROPOSE AN ALTERNATIVE TREATMENT PLAN. ANY ALTERNATIVE OPIN-
ION OR ALTERNATIVE TREATMENT PLAN SHALL BE CONSIDERED BY THE COURT WHEN
DETERMINING THE TREATMENT PLAN.
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 QUALIFYING DIAGNOSIS and the
A. 4869 9
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] MENTAL HEALTH
DISORDERS INCLUDING SUBSTANCE USE DISORDERS, 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 PARTICIPANT TO APPLY FOR PUBLIC INSURANCE IF
THEY SO QUALIFY. THE COURT SHALL NOT DENY ACCESS TO TREATMENT FOR
INABILITY TO PAY.
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] PARTICIPANT 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]
PARTICIPANT pursuant to subdivisions five and six of this section. IN
CASES WHERE THE PARTICIPANT HAS ENTERED A PLEA OF GUILTY, THE COURT MAY
TRANSFER THE PARTICIPANT'S CASE TO THE JUDICIAL DIVERSION COURT IN THE
COUNTY IN WHICH THE PARTICIPANT RESIDES OR AN ADJOURNING COUNTY 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. NOTWITHSTANDING THE RESTRICTIONS OUTLINED IN
PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION, THE COURT MAY REQUIRE
THE PARTICIPANT TO PLEAD GUILTY PRIOR TO THE TRANSFER OF THE CASE TO
ANOTHER COUNTY.
(B) The court may require the [defendant] PARTICIPANT to appear in
court [at any time] OR, UPON THE REQUEST OF THE PARTICIPANT, MAKE AUDIO
OR VIDEO APPEARANCES PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FIVE OF
THIS SECTION to enable the court to [monitor] PROMOTE the [defendant's]
PARTICIPANT'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 in] PARTICIPATION FOR court
APPEARANCES. Failure to appear as required without reasonable cause
therefor shall constitute a violation of the conditions of the court's
agreement with the [defendant] 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
A. 4869 10
to appear or issue a bench warrant to a police officer or an appropriate
peace officer directing [him or her] THEM to take the [defendant]
PARTICIPANT into custody and bring the [defendant] PARTICIPANT before
the court without unnecessary delay; provided, however, that under no
circumstances shall a [defendant] PARTICIPANT who requires treatment for
opioid use be deemed to have violated a release condition on the basis
of [his or her] THEIR 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] THEIR
lawful scope of practice. WHERE A COURT INTENDS TO IMPOSE A RESPONSE
THAT WOULD RESULT IN INCARCERATION OR TERMINATION FROM JUDICIAL DIVER-
SION, THE COURT SHALL CONDUCT A HEARING ON THE ALLEGED VIOLATION PURSU-
ANT 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. IN VIOLATIONS THAT MAY RESULT IN OTHER
POSSIBLE RESPONSES, A COURT MAY GRANT SUCH HEARING AS A MATTER OF
DISCRETION. 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 conduct
a summary hearing consistent with due process and sufficient to satisfy
the court that the defendant has, in fact, violated the condition.]
WHERE A HEARING IS CONDUCTED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVI-
SION:
(I) 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 OR HAS WILLFULLY FAILED
TO APPEAR. THE PARTICIPANT MAY CROSS-EXAMINE WITNESSES AND MAY PRESENT
RELEVANT, ADMISSIBLE EVIDENCE ON THEIR OWN BEHALF.
(II) THE COURT SHALL CONSIDER ORAL AND WRITTEN ARGUMENTS, TESTIMONY
FROM WITNESSES OFFERED BY EITHER PARTY, AND RELEVANT EVIDENCE TO ASSIST
IN MAKING ITS DETERMINATION. RELIABLE HEARSAY SHALL BE ADMISSIBLE AT
SUCH HEARINGS.
(III) THE COURT SHALL EXPLAIN ITS FINDINGS AND SENTENCE, IF SO
IMPOSED, ON THE RECORD OR IN WRITING.
(IV) AT THE REQUEST OF THE PARTICIPANT OR THE PARTICIPANT'S COUNSEL,
THE COURT MAY CONDUCT PROCEEDINGS OFF THE RECORD FOR PORTIONS OF THE
PROCEEDINGS THAT WILL LIKELY RESULT IN ADVERSE COLLATERAL CONSEQUENCES,
INCLUDING IMMIGRATION CONSEQUENCES. IN THE ALTERNATIVE, THE COURT SHALL
SEAL PORTIONS OF THE PROCEEDING THAT MAY RESULT IN SUCH CONSEQUENCES.
(c) If the court determines BY CLEAR AND CONVINCING EVIDENCE that the
[defendant] PARTICIPANT has violated a PROGRAM condition [of his or her
release under the judicial diversion program, the] IN AN IMPORTANT
RESPECT OR WILLFULLY FAILED TO APPEAR, THE COURT SHALL RESPOND BY USING
A SYSTEM OF GRADUATED AND APPROPRIATE RESPONSES DESIGNED TO ADDRESS SUCH
INAPPROPRIATE BEHAVIORS AND FACILITATE, WHERE POSSIBLE, SUCCESSFUL
COMPLETION OF THE TREATMENT 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 ACCORDING TO THE RECOMMENDATION OF THE TREATMENT PROVIDER; 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
A. 4869 11
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. 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. THE COURT SHALL
CONSIDER:
(I) the length of time the [defendant] PARTICIPANT HAS spent in [resi-
dential] treatment and how best to continue treatment [while the defend-
ant 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-
EST IN CONTINUING treatment [provider, and the extent to which persons
who ultimately successfully complete a drug treatment regimen sometimes]
OR THE PROGRAM;
(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. The court shall also consider using a system of
graduated and appropriate responses or sanctions designed to address
such inappropriate behaviors, protect public safety and facilitate,
where possible, successful completion of the alcohol or substance use
treatment program] IN RECOVERY AND TREATMENT; AND
(IV) ANY OTHER MITIGATING FACTORS THAT MAY HAVE IMPACTED THE ALLEGED
VIOLATION OR WILLFUL FAILURE TO APPEAR.
(D) IN THE EVENT OF TERMINATION FROM THE JUDICIAL DIVERSION PROGRAM,
ALL PARTICIPANTS, EXCEPT THOSE WHO ENTERED A GUILTY PLEA PURSUANT TO
PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION, SHALL RESUME
PROCEEDINGS IN CRIMINAL OR SUPREME COURT. THOSE WHO PREVIOUSLY ENTERED A
GUILTY PLEA SHALL BE SENTENCED ACCORDING TO THE FOLLOWING PROVISIONS:
(I) UPON INDIVIDUALIZED CONSIDERATION, THE COURT IN ITS DISCRETION MAY
DOWNWARDLY DEPART FROM THE DISPOSITION AND SENTENCE OUTLINED IN THE
AGREEMENT UNDER PARAGRAPH (D) OF SUBDIVISION FOUR OF THIS SECTION.
(II) NOTWITHSTANDING THE SENTENCING RESTRICTIONS OUTLINED IN SECTION
70.00, 70.02, 70.04, 70.06, 70.08, OR 70.10 OF THE PENAL LAW, WHERE THE
COURT DETERMINES THAT THE INDIVIDUAL MADE A GOOD FAITH EFFORT TO PARTIC-
IPATE IN THE JUDICIAL DIVERSION PROGRAM, THE COURT SHALL IMPOSE A DEFI-
NITE SENTENCE OF IMPRISONMENT OF THREE HUNDRED SIXTY-FOUR DAYS OR LESS,
PROBATION, A CONDITIONAL DISCHARGE, OR A DETERMINATE TERM OF IMPRISON-
MENT AS FOLLOWS:
(1) FOR A CLASS B FELONY, THE TERM MUST NOT EXCEED FIVE YEARS;
(2) FOR A CLASS C FELONY, THE TERM MUST NOT EXCEED THREE AND ONE-HALF
YEARS;
(3) FOR A CLASS D FELONY, THE TERM MUST NOT EXCEED TWO YEARS; AND
(4) FOR A CLASS E FELONY, THE TERM MUST NOT EXCEED ONE AND ONE-HALF
YEARS.
(III) PRIOR TO IMPOSING ANY SENTENCE OF INCARCERATION, THE COURT SHALL
HOLD A HEARING TO CONSIDER WHETHER IT WOULD BE UNDULY HARSH TO IMPOSE A
SENTENCE OF INCARCERATION IN LIGHT OF THE NATURE AND CIRCUMSTANCES OF
THE UNDERLYING CHARGES AND THE HISTORY, CHARACTER AND CONDITION OF THE
DEFENDANT. IN ADDITION, THE COURT SHALL CONSIDER ANY OTHER MITIGATING
FACTORS.
(IV) AT THE HEARING TO DETERMINE WHETHER THE DEFENDANT SHOULD BE
SENTENCED PURSUANT TO THIS SUBDIVISION, THE COURT SHALL CONSIDER ORAL
AND WRITTEN ARGUMENTS, TAKE TESTIMONY FROM WITNESSES OFFERED BY EITHER
A. 4869 12
PARTY, AND CONSIDER RELEVANT EVIDENCE TO ASSIST IN MAKING ITS DETERMI-
NATION. RELIABLE HEARSAY SHALL BE ADMISSIBLE AT SUCH HEARINGS. THE
COURT SHALL EXPLAIN ITS SENTENCE ON THE RECORD OR IN WRITING.
[(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)] (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] WHERE THE PARTICIPANT WAS REQUIRED TO ENTER
A PLEA OF GUILTY PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS
SECTION, THE COURT SHALL APPLY THE DISPOSITION AND SENTENCE OUTLINED IN
THE AGREEMENT UNDER SUBPARAGRAPH (II) OF PARAGRAPH (D) OF SUBDIVISION
FOUR OF THIS SECTION. WHERE THE PARTICIPANT DID NOT ENTER A PLEA OF
GUILTY PURSUANT TO PARAGRAPH (B) OF SUBDIVISION FOUR OF THIS SECTION,
THE COURT SHALL DISMISS the indictment OR SUPERIOR COURT INFORMATION,
FELONY COMPLAINT, MISDEMEANOR COMPLAINT, INFORMATION, SIMPLIFIED INFOR-
MATION, OR PROSECUTOR'S INFORMATION AND SEAL THE CASE PURSUANT TO
SECTION 160.50 OF THIS CHAPTER.
(A) PARTICIPANTS WHO SUCCESSFULLY COMPLETE JUDICIAL DIVERSION SHALL BE
ELIGIBLE TO APPLY FOR SEALING PURSUANT TO SECTION 160.58 OF THIS CHAP-
TER.
A. 4869 13
(B) UPON SUCCESSFUL COMPLETION OF JUDICIAL DIVERSION, THE COURT SHALL
NOTIFY THE PARTICIPANT OF THEIR POTENTIAL ELIGIBILITY FOR SEALING PURSU-
ANT TO SUBDIVISION TWO OF SECTION 160.58 OF THIS CHAPTER. NO PARTICIPANT
SHALL BE REQUIRED OR PERMITTED TO WAIVE ELIGIBILITY FOR SEALING AS A
CONDITION OF PARTICIPATION IN JUDICIAL DIVERSION.
(C) WHERE NECESSARY, THE COURT MAY ISSUE A FINAL ORDER OF PROTECTION
AS OUTLINED IN SUBDIVISION FIVE OF SECTION 530.12 OR SUBDIVISION FOUR OF
530.13 OF THIS CHAPTER EVEN WHERE THE FINAL DISPOSITION IS A DISMISSAL.
NOTWITHSTANDING THE RESTRICTIONS OF SECTION 160.50 OF THIS CHAPTER, SUCH
ORDER OF PROTECTION AND ANY DOCUMENTS NECESSARY TO ESTABLISH PROOF OF
SERVICE MAY BE MADE AVAILABLE TO QUALIFIED AGENCIES, AS DEFINED IN
SUBDIVISION NINE OF SECTION EIGHT HUNDRED THIRTY-FIVE OF THE EXECUTIVE
LAW. THE DURATION OF SUCH FINAL ORDER OF PROTECTION SHALL NOT EXCEED
FIVE YEARS.
10-A. TREATMENT PROVIDERS SHALL COLLABORATE WITH THE PARTICIPANT AND
THE COURT TO CREATE A POST-GRADUATION PLAN PRIOR TO COMPLETION OF JUDI-
CIAL DIVERSION. SUCH PLAN SHALL MAKE EVERY EFFORT TO ASSIST THE PARTIC-
IPANT IN OBTAINING STABLE HOUSING AND MEETING THEIR SELF-IDENTIFIED
LONG-TERM GOALS AFTER GRADUATION. HOWEVER, WHEN A PARTICIPANT FINISHES
THEIR TREATMENT PLAN, THEY SHALL BE CONSIDERED TO HAVE SUCCESSFULLY
COMPLETED THEIR OBLIGATION TO THE COURT, REGARDLESS OF THEIR ABILITY TO
SECURE HOUSING, EMPLOYMENT, OR OTHER PERSONAL GOALS IDENTIFIED.
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, TRAUMA-INFORMED CARE,
THE IMMIGRATION CONSEQUENCES OF PARTICIPATION IN JUDICIAL DIVERSION FOR
INDIVIDUALS WHO ARE NOT UNITED STATES CITIZENS, CERTIFIED PEER PROGRAMS,
HARM REDUCTION PRINCIPLES, AND PROTECTED HEALTH INFORMATION, 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 THE FOLLOWING, DISAGGREGATED
BY EACH COUNTY SERVED:
(A) THE NUMBER OF PEOPLE WITH CASES IN THE DIVERSION PART FOR EACH OF
THE FOLLOWING CATEGORIES, BROKEN DOWN BY GENDER, SEX, RACE AND ETHNICI-
TY:
(I) THE NUMBER OF PEOPLE WHO MAKE AN APPLICATION FOR EVALUATION;
A. 4869 14
(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 CRIMES WITH WHICH EACH PARTICIPANT WAS CHARGED;
(D) THE SPECIFIC QUALIFYING DIAGNOSIS OR DIAGNOSES FOR WHICH THE
PARTICIPANT RECEIVED TREATMENT WHILE PARTICIPATING IN THE JUDICIAL
DIVERSION PROGRAM;
(E) THE FINAL DISPOSITION, INCLUDING THE SENTENCE, OF EACH CASE
CONSIDERED FOR JUDICIAL DIVERSION;
(F) A LIST OF SERVICE PROVIDERS, INCLUDING CONTACT INFORMATION, THAT
THE DIVERSION PART IN THE SUPERIOR COURT OF THE COUNTY PARTNERS WITH TO
SERVE PARTICIPANTS;
(G) THE AVERAGE AMOUNT OF TIME THAT AN ELIGIBLE DEFENDANT MUST WAIT
FOR A CLINICAL EVALUATION; AND
(H) THE NUMBER OF ELIGIBLE DEFENDANTS DENIED ADMISSION TO JUDICIAL
DIVERSION DUE TO THE UNAVAILABILITY OF TREATMENT SERVICES PURSUANT TO
SUBPARAGRAPH (IV) OF PARAGRAPH (B) OF SUBDIVISION FOUR OF SECTION 216.05
OF THIS ARTICLE, AND THE SPECIFIC QUALIFYING DIAGNOSIS THAT THE COURT
DETERMINED COULD NOT BE ADEQUATELY TREATED BY EXISTING TREATMENT COURT
PROVIDERS.
§ 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 contrary,
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 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 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] 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 treat-
ment 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.
A. 4869 15
(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] THE DEFENDANT'S 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 contrary,
[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.
(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] THE DEFENDANT'S 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
A. 4869 16
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] THE DEFENDANT'S 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. The section heading, subdivision 1, and the opening paragraph of
subdivision 2 of section 160.58 of the criminal procedure law, as added
by section 3 of part AAA of chapter 56 of the laws of 2009, are amended
to read as follows:
Conditional sealing of certain [controlled substance, marihuana or
specified offense] convictions FOR PEOPLE WHO COMPLETE JUDICIAL DIVER-
SION OR A JUDICIALLY SANCTIONED DRUG TREATMENT PROGRAM.
1. A [defendant convicted of any offense defined in article two
hundred twenty or two hundred twenty-one of the penal law or a specified
offense defined in subdivision five of section 410.91 of this chapter]
PERSON who has successfully completed a judicial diversion program under
article two hundred sixteen of this chapter, or one of the programs
heretofore known as drug treatment alternative to prison or another
judicially sanctioned drug treatment program of similar duration,
requirements and level of supervision, and [has completed the sentence
imposed for the offense or offenses,] WAS SENTENCED FOR AN OFFENSE OR
OFFENSES UPON COMPLETION OF SUCH PROGRAM is eligible to have such
offense or offenses CONDITIONALLY sealed pursuant to this section. FOR
SUCH OFFENSES, THE COURT THAT SENTENCED THE DEFENDANT TO A JUDICIALLY
SANCTIONED DRUG TREATMENT PROGRAM MAY, ON ITS OWN MOTION OR ON THE
DEFENDANT'S MOTION, ORDER THAT ALL OFFICIAL RECORDS AND PAPERS RELATING
TO THE ARREST, PROSECUTION AND CONVICTION WHICH RESULTED IN THE DEFEND-
A. 4869 17
ANT'S PARTICIPATION IN THE JUDICIALLY SANCTIONED DRUG TREATMENT PROGRAM
BE CONDITIONALLY SEALED.
[The court that sentenced the defendant to a judicially sanctioned
drug treatment program may on its own motion, or on the defendant's
motion, order that all official records and papers relating to the
arrest, prosecution and conviction which resulted in the defendant's
participation in the judicially sanctioned drug treatment program be
conditionally sealed. In such case, the court may also]
WHERE A PERSON HAS COMPLETED A JUDICIAL DIVERSION PROGRAM PURSUANT TO
ARTICLE TWO HUNDRED SIXTEEN OF THIS CHAPTER OR A DRUG TREATMENT ALTERNA-
TIVE TO PRISON PROGRAM OR ANOTHER JUDICIALLY SANCTIONED DRUG TREATMENT
PROGRAM, THE COURT THAT SUPERVISED THE PERSON'S PARTICIPATION IN THE
PROGRAM MAY, ON ITS OWN MOTION OR ON THE DEFENDANT'S MOTION, condi-
tionally seal the arrest, prosecution and conviction records for no more
than three of the [defendant's] PERSON'S prior eligible misdemeanors,
which for purposes of this subdivision shall be limited to misdemeanor
offenses defined in article two hundred twenty [or], two hundred twen-
ty-one, OR TWO HUNDRED TWENTY-TWO of the penal law. The court may only
seal the records of the defendant's arrests, prosecutions and
convictions when:
§ 13. Paragraph (j) of subdivision 1 of section 210.40 of the criminal
procedure law, as added by chapter 216 of the laws of 1979, is amended
to read as follows:
(j) any other relevant fact indicating that a judgment of conviction
would serve no useful purpose, INCLUDING BUT NOT LIMITED TO, WHETHER THE
DEFENDANT WAS DENIED ADMISSION TO JUDICIAL DIVERSION DUE TO THE UNAVAIL-
ABILITY OF ADEQUATE TREATMENT SERVICES PURSUANT TO SUBPARAGRAPH (IV) OF
PARAGRAPH (B) OF SUBDIVISION THREE OF SECTION 216.05 OF THIS CHAPTER.
§ 14. Paragraph (j) of subdivision 1 of section 170.40 of the criminal
procedure law, as added by chapter 216 of the laws of 1979, is amended
to read as follows:
(j) any other relevant fact indicating that a judgment of conviction
would serve no useful purpose, INCLUDING BUT NOT LIMITED TO, WHETHER THE
DEFENDANT WAS DENIED ADMISSION TO JUDICIAL DIVERSION DUE TO THE UNAVAIL-
ABILITY OF ADEQUATE TREATMENT SERVICES PURSUANT TO SUBPARAGRAPH (IV) OF
PARAGRAPH (B) OF SUBDIVISION THREE OF SECTION 216.05 OF THIS CHAPTER.
§ 15. This act shall take effect one year 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.