Expand Court Diversion Programs

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]

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 indictment [or a], superior court information [with a class B, C, D or E felony 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 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 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 indictment [or a], superior court information [with a class B, C, D or E felony offense defined in article two hundred twenty or two hundred twentyone 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.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD16163-02-0

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§ 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 Paragraphs (a) and (b) and the closing paragraph of subdivision 1 of section 216.00 of the criminal procedure law are REPEALED.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 injury 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 impairments 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] functional 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 court at the request of the eligible defendant, [may] shall order [an alcohol and substance abuse] a clinical evaluation. An eligible defendant may decline to participate in such an evaluation at any time. The defendant shall provide a written authorization, in compliance with the

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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 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] clinical 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 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 youthful 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 allowance 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 criminal 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;

(iii) such [alcohol or substance abuse or dependence] functional impairment is or may be a contributing factor to the defendant's [criminal behavior] involvement in the criminal legal system;

(iv) the defendant's participation in judicial diversion could effectively address such [abuse or dependence] functional impairment; and

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(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 determines 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 likely to result in severe collateral consequences.]

(b) There shall be a presumption in favor of allowing eligible defendants 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 presumption also protects defendants from the severe collateral consequences associated with a criminal conviction, particularly consequences relating to immigration status, licensing for employment, and housing. Under no circumstances shall the prosecutor serve as a gatekeeper to diversion.

(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 disclosure 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[:] participation 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 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;

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[(ii)] (e) a requirement that the defendant refrain from engaging in criminal behaviors;