§ 216.05 — Judicial diversion program; court procedures

New York § 216.05

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title I: Preliminary Proceedings In Superior Court
• Part 2: The Principal Proceedings
• Art. 216: Judicial Diversion Program For Certain Felony Offenders

Text

§ 216.05 Judicial diversion program; court procedures.\n 1. At any time after the arraignment of an eligible defendant, but\nprior to the entry of a plea of guilty or the commencement of trial, the\ncourt at the request of the eligible defendant, may order an alcohol and\nsubstance use evaluation. An eligible defendant may decline to\nparticipate in such an evaluation at any time. The defendant shall\nprovide a written authorization, in compliance with the requirements of\nany applicable state or federal laws, rules or regulations authorizing\ndisclosure of the results of the assessment to the defendant's attorney,\nthe prosecutor, the local probation department, the court, authorized\ncourt personnel and other individuals specified in such authorization\nfor the sole purpose of determining whether the defendant should be\noffered judicial diversion for treatment for substance use, alcohol use\nand any co-occurring mental disorder or mental illness.\n 2. Upon receipt of the completed alcohol and substance use evaluation\nreport, the court shall provide a copy of the report to the eligible\ndefendant and the prosecutor.\n 3. (a) Upon receipt of the evaluation report either party may request\na hearing on the issue of whether the eligible defendant should be\noffered alcohol or substance use treatment pursuant to this article. At\nsuch a proceeding, which shall be held as soon as practicable so as to\nfacilitate early intervention in the event that the defendant is found\nto need alcohol or substance use treatment, the court may consider oral\nand written arguments, may take testimony from witnesses offered by\neither party, and may consider any relevant evidence including, but not\nlimited to, evidence that:\n (i) the defendant had within the preceding ten years (excluding any\ntime during which the offender was incarcerated for any reason between\nthe time of the acts that led to the youthful offender adjudication and\nthe time of commission of the present offense) been adjudicated a\nyouthful offender for: (A) a violent felony offense as defined in\nsection 70.02 of the penal law; or (B) any offense for which a merit\ntime allowance is not available pursuant to subparagraph (ii) of\nparagraph (d) of subdivision one of section eight hundred three of the\ncorrection law; and\n (ii) in the case of a felony offense defined in subdivision five of\nsection 410.91 of this chapter, or section 165.10, 165.11, 190.79 or\n190.80 of the penal law, any statement of or submitted by the victim, as\ndefined in paragraph (a) of subdivision two of section 380.50 of this\nchapter.\n (b) Upon completion of such a proceeding, the court shall consider and\nmake findings of fact with respect to whether:\n (i) the defendant is an eligible defendant as defined in subdivision\none of section 216.00 of this article;\n (ii) the defendant has a history of alcohol or substance use;\n (iii) such alcohol or substance use is a contributing factor to the\ndefendant's criminal behavior;\n (iv) the defendant's participation in judicial diversion could\neffectively address such use; and\n (v) institutional confinement of the defendant is or may not be\nnecessary for the protection of the public.\n 4. When an authorized court determines, pursuant to paragraph (b) of\nsubdivision three of this section, that an eligible defendant should be\noffered alcohol or substance use treatment, or when the parties and the\ncourt agree to an eligible defendant's participation in alcohol or\nsubstance use treatment, an eligible defendant may be allowed to\nparticipate in the judicial diversion program offered by this article.\nPrior to the court's issuing an order granting judicial diversion, the\neligible defendant shall be required to enter a plea of guilty to the\ncharge or charges; provided, however, that no such guilty plea shall be\nrequired when:\n (a) the people and the court consent to the entry of such an order\nwithout a plea of guilty; or\n (b) based on a finding of exceptional circumstances, the court\ndetermines that a plea of guilty shall not be required. For purposes of\nthis subdivision, exceptional circumstances exist when, regardless of\nthe ultimate disposition of the case, the entry of a plea of guilty is\nlikely to result in severe collateral consequences.\n 5. The defendant shall agree on the record or in writing to abide by\nthe release conditions set by the court, which, shall include:\nparticipation in a specified period of alcohol or substance use\ntreatment at a specified program or programs identified by the court,\nwhich may include periods of detoxification, residential or outpatient\ntreatment, or both, as determined after taking into account the views of\nthe health care professional who conducted the alcohol and substance use\nevaluation and any health care professionals responsible for providing\nsuch treatment or monitoring the defendant's progress in such treatment;\nand may include: (i) periodic court appearances, which may include\nperiodic urinalysis; (ii) a requirement that the defendant refrain from\nengaging in criminal behaviors; (iii) if the defendant needs treatment\nfor opioid use, that he or she may participate in and receive medically\nprescribed drug treatments under the care of a health care professional\nlicensed or certified under title eight of the education law, acting\nwithin his or her lawful scope of practice, provided that no court shall\nrequire the use of any specified type or brand of drug during the course\nof medically prescribed drug treatments.\n 6. Upon an eligible defendant's agreement to abide by the conditions\nset by the court, the court shall issue a securing order providing for\nbail or release on the defendant's own recognizance and conditioning any\nrelease upon the agreed upon conditions. The period of alcohol or\nsubstance use treatment shall begin as specified by the court and as\nsoon as practicable after the defendant's release, taking into account\nthe availability of treatment, so as to facilitate early intervention\nwith respect to the defendant's substance use or condition and the\neffectiveness of the treatment program. In the event that a treatment\nprogram is not immediately available or becomes unavailable during the\ncourse of the defendant's participation in the judicial diversion\nprogram, the court may release the defendant pursuant to the securing\norder.\n 7. When participating in judicial diversion treatment pursuant to this\narticle, any resident of this state who is covered under a private\nhealth insurance policy or contract issued for delivery in this state\npursuant to article thirty-two, forty-three or forty-seven of the\ninsurance law or article forty-four of the public health law, or who is\ncovered by a self-funded plan which provides coverage for the diagnosis\nand treatment of chemical abuse and chemical dependence however defined\nin such policy; shall first seek reimbursement for such treatment in\naccordance with the provisions of such policy or contract.\n 8. During the period of a defendant's participation in the judicial\ndiversion program, the court shall retain jurisdiction of the defendant,\nprovided, however, that the court may allow such defendant to (i) reside\nin another jurisdiction, or (ii) participate in alcohol and substance\nuse treatment and other programs in the jurisdiction where the defendant\nresides or in any other jurisdiction, while participating in a judicial\ndiversion program under conditions set by the court and agreed to by the\ndefendant pursuant to subdivisions five and six of this section. The\ncourt may require the defendant to appear in court at any time to enable\nthe court to monitor the defendant's progress in alcohol or substance\nuse treatment. The court shall provide notice, reasonable under the\ncircumstances, to the people, the treatment provider, the defendant and\nthe defendant's counsel whenever it orders or otherwise requires the\nappearance of the defendant in court. Failure to appear as required\nwithout reasonable cause therefor shall constitute a violation of the\nconditions of the court's agreement with the defendant.\n 9. (a) If at any time during the defendant's participation in the\njudicial diversion program, the court has reasonable grounds to believe\nthat the defendant has violated a release condition in an important\nrespect or has willfully failed to appear before the court as requested,\nthe court except as provided in subdivision two of section 510.50 of\nthis chapter regarding a failure to appear, shall direct the defendant\nto appear or issue a bench warrant to a police officer or an appropriate\npeace officer directing him or her to take the defendant into custody\nand bring the defendant before the court without unnecessary delay;\nprovided, however, that under no circumstances shall a defendant who\nrequires treatment for opioid use be deemed to have violated a release\ncondition on the basis of his or her participation in medically\nprescribed drug treatments under the care of a health care professional\nlicensed or certified under title eight of the education law, acting\nwithin his or her lawful scope of practice. The relevant provisions of\nsection 530.60 of this chapter relating to issuance of securing orders\nshall apply to such proceedings under this subdivision.\n (b) In determining whether a defendant violated a condition of his or\nher release under the judicial diversion program, the court may conduct\na summary hearing consistent with due process and sufficient to satisfy\nthe court that the defendant has, in fact, violated the condition.\n (c) If the court determines that the defendant has violated a\ncondition of his or her release under the judicial diversion program,\nthe court may modify the conditions thereof, reconsider the order of\nrecognizance or bail pursuant to subdivision two of section 510.30 of\nthis chapter, or terminate the defendant's participation in the judicial\ndiversion program; and when applicable proceed with the defendant's\nsentencing in accordance with the agreement. Notwithstanding any\nprovision of law to the contrary, the court may impose any sentence\nauthorized for the crime of conviction in accordance with the plea\nagreement, or any lesser sentence authorized to be imposed on a felony\ndrug offender pursuant to paragraph (b) or (c) of subdivision two of\nsection 70.70 of the penal law taking into account the length of time\nthe defendant spent in residential treatment and how best to continue\ntreatment while the defendant is serving that sentence. In determining\nwhat action to take for a violation of a release condition, the court\nshall consider all relevant circumstances, including the views of the\nprosecutor, the defense and the alcohol or substance use treatment\nprovider, and the extent to which persons who ultimately successfully\ncomplete a drug treatment regimen sometimes relapse by not abstaining\nfrom alcohol or substance use or by failing to comply fully with all\nrequirements imposed by a treatment program. The court shall also\nconsider using a system of graduated and appropriate responses or\nsanctions designed to address such inappropriate behaviors, protect\npublic safety and facilitate, where possible, successful completion of\nthe alcohol or substance use treatment program.\n (d) Nothing in this subdivision shall be construed as preventing a\ncourt from terminating a defendant's participation in the judicial\ndiversion program for violating a release condition when such a\ntermination is necessary to preserve public safety. Nor shall anything\nin this subdivision be construed as precluding the prosecution of a\ndefendant for the commission of a different offense while participating\nin the judicial diversion program.\n (e) A defendant may at any time advise the court that he or she wishes\nto terminate participation in the judicial diversion program, at which\ntime the court shall proceed with the case and, where applicable, shall\nimpose sentence in accordance with the plea agreement. Notwithstanding\nany provision of law to the contrary, the court may impose any sentence\nauthorized for the crime of conviction in accordance with the plea\nagreement, or any lesser sentence authorized to be imposed on a felony\ndrug offender pursuant to paragraph (b) or (c) of subdivision two of\nsection 70.70 of the penal law taking into account the length of time\nthe defendant spent in residential treatment and how best to continue\ntreatment while the defendant is serving that sentence.\n 10. Upon the court's determination that the defendant has successfully\ncompleted the required period of alcohol or substance use treatment and\nhas otherwise satisfied the conditions required for successful\ncompletion of the judicial diversion program, the court shall comply\nwith the terms and conditions it set for final disposition when it\naccepted the defendant's agreement to participate in the judicial\ndiversion program. Such disposition may include, but is not limited to:\n(a) requiring the defendant to undergo a period of interim probation\nsupervision and, upon the defendant's successful completion of the\ninterim probation supervision term, notwithstanding the provision of any\nother law, permitting the defendant to withdraw his or her guilty plea\nand dismissing the indictment; or (b) requiring the defendant to undergo\na period of interim probation supervision and, upon successful\ncompletion of the interim probation supervision term, notwithstanding\nthe provision of any other law, permitting the defendant to withdraw his\nor her guilty plea, enter a guilty plea to a misdemeanor offense and\nsentencing the defendant as promised in the plea agreement, which may\ninclude a period of probation supervision pursuant to section 65.00 of\nthe penal law; or (c) allowing the defendant to withdraw his or her\nguilty plea and dismissing the indictment.\n 11. Nothing in this article shall be construed as restricting or\nprohibiting courts or district attorneys from using other lawful\nprocedures or models for placing appropriate persons into alcohol or\nsubstance use treatment.\n