Bill Text: NY A01263 | 2023-2024 | General Assembly | Amended

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Bill Title: Relates to judicial diversion programs; establishes a diversion part in each county; repeals certain provisions of law relating thereto.

Spectrum: Partisan Bill (Democrat 60-1)

Status: (Introduced) 2024-01-03 - referred to codes [A01263 Detail]

Download: New_York-2023-A01263-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         1263--B

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                    January 13, 2023
                                       ___________

        Introduced  by  M.  of  A.  FORREST, WEPRIN, HEVESI, GALLAGHER, JACKSON,
          BURGOS, ANDERSON, GONZALEZ-ROJAS, BURDICK, EPSTEIN,  MAMDANI,  KELLES,
          MITAYNES,  BICHOTTE HERMELYN, DICKENS, PRETLOW, DARLING, SIMON, MEEKS,
          GLICK,  CUNNINGHAM,  L. ROSENTHAL,   CRUZ,   REYES,   WALKER,   VANEL,
          DE LOS SANTOS,  DAVILA, TAYLOR, AUBRY, CARROLL, COOK, SEAWRIGHT, RAGA,
          SHRESTHA, BORES, McDONALD, ARDILA, OTIS,  KIM,  CLARK,  TAPIA,  GIBBS,
          CHANDLER-WATERMAN,  SEPTIMO,  K. BROWN,  JOYNER, O'DONNELL, LEVENBERG,
          ALVAREZ, SHIMSKY, STECK, SOLAGES, JEAN-PIERRE, ZACCARO, SIMONE -- read
          once and referred to the Committee on Codes --  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:

     1    Section 1. The article heading of article 216 of the  criminal  proce-
     2  dure law, as added by section 4 of part AAA of chapter 56 of the laws of
     3  2009, is amended to read as follows:
     4           JUDICIAL DIVERSION [PROGRAM FOR CERTAIN FELONY OFFENDERS]
     5                                  PROGRAMS
     6    §  2.  The opening paragraph of subdivision 1 of section 216.00 of the
     7  criminal procedure law, as amended by section 1 of chapter  435  of  the
     8  laws of 2021, is amended to read as follows:
     9    "Eligible defendant" means any person who stands charged in an indict-
    10  ment [or a], superior court information [with a class B, C, D or E felo-
    11  ny  offense  defined  in  article  one hundred seventy-nine, two hundred
    12  twenty or two hundred twenty-two of the penal law, an offense defined in
    13  sections 105.10 and 105.13 of the penal law provided that the underlying
    14  crime for the conspiracy charge is a class B, C, D or E  felony  offense

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00666-05-3
        A. 1263--B                          2

     1  defined  in  article one hundred seventy-nine, two hundred twenty or two
     2  hundred twenty-two of the penal law, auto stripping in the second degree
     3  as defined in section 165.10 of the penal law,  auto  stripping  in  the
     4  first  degree  as  defined  in section 165.11 of the penal law, identity
     5  theft in the second degree as defined in section  190.79  of  the  penal
     6  law,  identity theft in the first degree as defined in section 190.80 of
     7  the penal law, or any other specified offense as defined in  subdivision
     8  five  of  section 410.91 of this chapter, provided, however, a defendant
     9  is not an "eligible defendant" if he or she:], misdemeanor complaint  or
    10  felony complaint with any offense and has a functional impairment.
    11    §  3.  The opening paragraph of subdivision 1 of section 216.00 of the
    12  criminal procedure law, as amended by section 2 of chapter  435  of  the
    13  laws of 2021, is amended to read as follows:
    14    "Eligible defendant" means any person who stands charged in an indict-
    15  ment [or a], superior court information [with a class B, C, D or E felo-
    16  ny  offense defined in article two hundred twenty or two hundred twenty-
    17  two of the penal law, an offense defined in sections 105.10  and  105.13
    18  of  the  penal law provided that the underlying crime for the conspiracy
    19  charge is a class B, C, D or E felony offense  defined  in  article  two
    20  hundred  twenty  or two hundred twenty-two of the penal law, auto strip-
    21  ping in the second degree as defined in section 165.10 of the penal law,
    22  auto stripping in the first degree as defined in section 165.11  of  the
    23  penal  law,  identity  theft  in the second degree as defined in section
    24  190.79 of the penal law, identity theft in the first degree  as  defined
    25  in  section  190.80  of the penal law, or any other specified offense as
    26  defined in subdivision five of section 410.91 of this chapter, provided,
    27  however, a defendant is not an "eligible  defendant"  if  he  or  she:],
    28  misdemeanor  complaint  or  felony  complaint with any offense and has a
    29  functional impairment.
    30    § 4. Paragraphs (a) and (b) and the closing paragraph of subdivision 1
    31  of section 216.00 of the criminal procedure law are REPEALED.
    32    § 5. Subdivision 2 of section 216.00 of the criminal procedure law, as
    33  amended by chapter 435 of the laws of 2021, is  amended  and  eight  new
    34  subdivisions 3, 4, 6, 7, 8, 9, 10 and 11 are added to read as follows:
    35    2.  ["Alcohol  and substance use evaluation"] "Participant"  means  an
    36  eligible defendant who has been admitted into judicial diversion  pursu-
    37  ant to this article.
    38    3.  "Licensed  mental health care professional" means a clinician with
    39  professional experience, training and licensure pursuant to title  eight
    40  of  the  education law who is qualified to diagnose or treat people with
    41  mental  health  disorders,  including  substance-related  and  addictive
    42  disorders.
    43    4.  "Functional impairment" means a condition that involves clinically
    44  significant  distress  or  disability  in  social, occupational or other
    45  areas of  functioning  due  to  a  mental  health  disorder,  including:
    46  substance-related and addictive disorders, neurodevelopmental disorders,
    47  neurocognitive  disorders,  or  other  disorders  as defined in the most
    48  recent version of the diagnostic and statistical manual of mental disor-
    49  ders.  The court shall defer to  licensed  mental  health  care  profes-
    50  sionals  in  determining whether a person has a functional impairment. A
    51  person may have more than one functional impairment.
    52    5. "Clinical evaluation" means a written assessment and  report  by  a
    53  [court-approved  entity  or]  licensed  mental  health care professional
    54  [experienced in the treatment of alcohol and substance use disorder, or]
    55  as defined in  subdivision  three  of  this  section  or  an  evaluation
    56  conducted  by  an addiction and substance [abuse] use disorder counselor
        A. 1263--B                          3

     1  credentialed by the office of addiction services and  supports  pursuant
     2  to section 19.07 of the mental hygiene law[, which]. Such evaluation may
     3  be  conducted  through  telehealth when practicable and when delay would
     4  otherwise occur. The evaluation shall include:
     5    (a) an evaluation as to whether the defendant currently has [a history
     6  of alcohol or substance use disorder] one or more functional impairments
     7  that  may  include  but  not  be limited to a mental health disorder, as
     8  [such terms are] defined in the most recent edition  of  the  diagnostic
     9  and statistical manual of mental disorders, [fifth edition, and a co-oc-
    10  curring  mental  disorder or mental illness and the relationship between
    11  such use and mental disorder or mental illness,] if any;
    12    (b) a  recommendation  as  to  whether  the  defendant's  [alcohol  or
    13  substance  use]  functional  impairments,  if  any, could be effectively
    14  addressed by judicial diversion in accordance with this article;
    15    (c) a recommendation as to the treatment modality, level of  care  and
    16  length  of any proposed treatment to effectively address the defendant's
    17  [alcohol or substance  use  and  any  co-occurring  mental  disorder  or
    18  illness] functional impairments; and
    19    (d)  any  other  information,  factor, circumstance, or recommendation
    20  deemed relevant by the assessing entity or specifically requested by the
    21  court.
    22    6. "Treatment" means one or more evidence-based interventions  includ-
    23  ing, but not limited to, counseling, psychotherapy, psychotropic medica-
    24  tion  or  medications for addiction or substance use disorder treatment,
    25  health promotion, and overdose prevention education.  Treatment for  the
    26  purposes  of  this  article  does  not  include  treatment in a carceral
    27  setting or in a forensic hospital  pursuant  to  article  seven  hundred
    28  thirty of this chapter.  For substance use disorders, treatment includes
    29  any  clinical  service or intervention that assists individuals in their
    30  recovery in accordance with harm reduction principles.
    31    7. "Treatment provider" means a person or  organization  qualified  to
    32  provide  interventions responsive to the needs identified by the defend-
    33  ant and clinician during the clinical evaluation.
    34    8. "Harm reduction" means a  set  of  proven-effective  substance  use
    35  intervention  strategies  that  offer  low-threshold access to treatment
    36  with the goal of reducing  the negative consequences of  substance  use,
    37  preventing  overdose and the transmission of infectious diseases, and/or
    38  improving the physical, mental, and social well-being of  those  served.
    39  In  some  cases,  as identified by a licensed mental health care profes-
    40  sional or a treatment provider, harm reduction interventions may  recog-
    41  nize  that  complete  abstinence is not realistically attainable and may
    42  instead aim to achieve a significant reduction or change in use.
    43    9. "Certified peers" means professionals who have the lived experience
    44  of successfully navigating recovery-oriented systems  of  care  who  are
    45  certified  by  the office of mental health or by the office of addiction
    46  services and supports to provide peer support services. The  peer  model
    47  should be integrated into every stage of the judicial diversion process.
    48    10.  "Treatment  plan"  means  an  individualized  plan developed by a
    49  licensed mental health care professional  or  a  treatment  provider  in
    50  conjunction  with  an eligible defendant, which may include any combina-
    51  tion of treatment interventions identified in subdivision  six  of  this
    52  section.  Provided that:
    53    (a)  treatment  should  occur in the setting or settings that are most
    54  appropriate to the individual's medical needs.
    55    (b) such treatment plan shall take into consideration the  best  prac-
    56  tices  for  addressing  any functional impairments identified during the
        A. 1263--B                          4

     1  clinical evaluation and any evidence-based  and  peer-reviewed  clinical
     2  review  criteria  that  is relevant to the identified functional impair-
     3  ment, appropriate to the age of the patient and has been  designated  or
     4  approved  by the appropriate state agency or agencies, including but not
     5  limited to, the  office  of  mental  health,  the  office  of  addiction
     6  services  and  supports,  and  the  office for people with developmental
     7  disabilities.
     8    (c) a treatment plan may include  treatment  through  telehealth  when
     9  deemed  appropriate  by  a licensed mental health care professional or a
    10  treatment provider.
    11    (d) a licensed mental health care professional or a treatment provider
    12  may modify a treatment plan after the participant has been  admitted  to
    13  the judicial diversion program with the consent of the participant where
    14  the licensed mental health care professional or treatment provider deems
    15  such modification to be clinically appropriate.
    16    11.  "Protected  health  information"  means  information protected by
    17  federal and state laws and regulations governing the privacy of  person-
    18  ally-identifiable  medical  information,  including  the  federal Health
    19  Insurance Portability and Accountability Act Privacy Rule  (45  Code  of
    20  Federal  Regulations Parts 160 and 164), 42 United States Code § 290dd-2
    21  (42 Code of Federal Regulations Part 2), section  33.13  of  the  mental
    22  hygiene  law,  article twenty-seven-f of the public health law ("HIV and
    23  AIDS Related Information"), and any other relevant health  privacy  laws
    24  and regulations.
    25    § 6. Section 216.05 of the criminal procedure law, as amended by chap-
    26  ter 435 of the laws of 2021, is amended to read as follows:
    27  § 216.05 Judicial diversion program; court procedures.
    28    1. At any time after the local criminal court arraignment of an eligi-
    29  ble  defendant,  but  prior  to  the  entry  of  a plea of guilty or the
    30  commencement of trial, the court,  at  the  request  of  the  [eligible]
    31  defendant,  [may]  shall order [an alcohol and substance use] a clinical
    32  evaluation for all known functional impairments. Such evaluations  shall
    33  take place without undue delay.
    34    (a)  The  possibility  of being evaluated shall not be contingent on a
    35  waiver of any other sections of this chapter except subdivision  one  of
    36  section 30.30 of this chapter.
    37    [An  eligible] (b) A defendant may decline to [participate in] undergo
    38  such an evaluation at any time.
    39    (c) The defendant shall provide a written authorization, in compliance
    40  with the requirements of any applicable state or federal laws, rules  or
    41  regulations  authorizing  disclosure of the results of the assessment to
    42  the defendant's attorney, the prosecutor, the  local  probation  depart-
    43  ment, the court, authorized court personnel and other individuals speci-
    44  fied  in  such authorization for the sole purpose of determining whether
    45  the defendant should be offered judicial  diversion  for  treatment  for
    46  [substance  use,  alcohol  use  and  any co-occurring mental disorder or
    47  mental illness] a functional impairment.
    48    (d) No statement or other disclosure, written or otherwise, made by  a
    49  defendant  to  a  licensed  mental health care professional or treatment
    50  provider may be used by the prosecution to prove any  crime  or  offense
    51  alleged  in the pending case. All such statements shall be used only for
    52  the purposes of making recommendations as defined in subdivision two  of
    53  this section and shall otherwise remain confidential.
    54    2.   Upon  [receipt  of  the  completed  alcohol  and  substance  use]
    55  completion of the clinical evaluation [report],  the  [court]  clinician
    56  shall  provide  a copy of the report to the [eligible] defendant and the
        A. 1263--B                          5

     1  [prosecutor] defendant's counsel.  The court and  the  prosecutor  shall
     2  receive  a copy of the clinical evaluation only if the defendant decides
     3  to proceed in  requesting  judicial  diversion.    Where  the  defendant
     4  decides  to proceed in requesting judicial diversion, they shall consent
     5  to disclosure of their protected health information with the  court  and
     6  prosecutor.
     7    3.  (a) Upon [receipt] review of the clinical evaluation [report], the
     8  prosecutor and defendant can agree to diversion based on the recommenda-
     9  tions in the evaluation report. If the parties  disagree,  either  party
    10  may  request  a hearing on the issue of whether the [eligible] defendant
    11  is an eligible defendant and should be offered [alcohol or substance use
    12  treatment] judicial diversion pursuant to  this  article.    At  such  a
    13  proceeding,  which shall be held as soon as practicable so as to facili-
    14  tate early intervention in the event that the defendant is found to need
    15  [alcohol or substance use] treatment, the court may  consider  oral  and
    16  written arguments, [may] take testimony from witnesses offered by either
    17  party,  and  [may]  consider  any  relevant evidence [including, but not
    18  limited to, evidence that:
    19    (i) the defendant had within the preceding ten  years  (excluding  any
    20  time  during  which the offender was incarcerated for any reason between
    21  the time of the acts that led to the youthful offender adjudication  and
    22  the time of commission of the present offense) been adjudicated a youth-
    23  ful  offender  for:  (A)  a violent felony offense as defined in section
    24  70.02 of the penal law; or (B) any offense for which a merit time allow-
    25  ance is not available pursuant to subparagraph (ii) of paragraph (d)  of
    26  subdivision  one  of  section eight hundred three of the correction law;
    27  and
    28    (ii) in the case of a felony offense defined in  subdivision  five  of
    29  section  410.91  of  this  chapter, or section 165.10, 165.11, 190.79 or
    30  190.80 of the penal law, any statement of or submitted by the victim, as
    31  defined in paragraph (a) of subdivision two of section  380.50  of  this
    32  chapter] except sealed cases defined in section 160.50 or 160.55 of this
    33  chapter.
    34    (b) Upon completion of such a proceeding, the court shall consider and
    35  make findings of fact with respect to whether:
    36    (i)  the  defendant is an eligible defendant as defined in subdivision
    37  one of section 216.00 of this article;
    38    (ii) [the defendant has a history of alcohol or substance use;
    39    (iii) such  alcohol  or  substance  use]  the  defendant's  functional
    40  impairment  is likely a contributing factor to [the defendant's criminal
    41  behavior] their current or future  involvement  in  the  criminal  legal
    42  system;
    43    [(iv)] (iii) the defendant's participation in judicial diversion could
    44  effectively address such [use] functional impairment; and
    45    [(v)  institutional  confinement  of  the  defendant  is or may not be
    46  necessary for the protection of the public] (iv) the defendant's  access
    47  to  treatment  through  this  article  would  benefit the public and the
    48  defendant.
    49    4. (a) When an authorized court determines, pursuant to paragraph  (b)
    50  of  subdivision three of this section, that an eligible defendant should
    51  be offered [alcohol or substance use] treatment, or when the parties and
    52  the court agree to [an eligible defendant's participation in alcohol  or
    53  substance  use]  treatment, an eligible defendant [may] shall be allowed
    54  to participate in the judicial diversion program offered by  this  arti-
    55  cle.    [Prior  to the court's issuing an order granting judicial diver-
    56  sion, the eligible defendant shall be required to enter a plea of guilty
        A. 1263--B                          6

     1  to the charge or charges; provided, however, that no  such  guilty  plea
     2  shall be required when:
     3    (a)  the  people  and  the court consent to the entry of such an order
     4  without a plea of guilty; or
     5    (b) based on a finding of exceptional circumstances, the court  deter-
     6  mines  that a plea of guilty shall not be required. For purposes of this
     7  subdivision, exceptional circumstances exist  when,  regardless  of  the
     8  ultimate disposition of the case, the entry of a plea of guilty is like-
     9  ly to result in severe collateral consequences.]
    10    (b)  Eligible  defendants  shall  not  be required to submit a plea of
    11  guilty to participate in judicial diversion.
    12    (c) Prior participation in treatment or court-mandated treatment shall
    13  not preclude future treatment participation.
    14    (d) Eligible defendants shall not be precluded from diversion  because
    15  of a lack of resources in the community.
    16    (e)  An  eligible  defendant  shall  not  be  precluded from diversion
    17  because of their gender identity.
    18    5. The [defendant] participant shall agree on the record or in writing
    19  to abide by the [release] judicial diversion program conditions  set  by
    20  the  court,  which[,  shall]  may include: [participation in a specified
    21  period of alcohol or substance use treatment at a specified  program  or
    22  programs identified by the court, which may include periods of detoxifi-
    23  cation residential or outpatient treatment, or both, as determined after
    24  taking  into  account  the  views  of  the  health care professional who
    25  conducted the alcohol and substance use evaluation and any  health  care
    26  professionals responsible for providing such treatment or monitoring the
    27  defendant's progress in such treatment; and may include: (i)]
    28    (a) participation in the treatment plan;
    29    (b)  periodic  court  appearances,  which, upon consent of the partic-
    30  ipant, may [include periodic urinalysis; (ii)] be an accessible audio or
    31  video appearance. When scheduling court appearances and determining  the
    32  type  of appearance required, the court shall consider the participant's
    33  treatment progress and shall attempt to avoid undue hardship,  including
    34  but not limited to, treatment interruptions, the cost of transportation,
    35  mobility  issues, childcare and employment disruptions. Upon application
    36  by defense counsel and with the consent of the  participant,  the  court
    37  shall consider waiving the appearance of the participant;
    38    (c)  periodic drug screening as needed, when recommended by the treat-
    39  ment provider as part of a participant's treatment plan. Drug  screening
    40  methods  shall  only  include oral swabs, sweat patches, or non-observed
    41  urinalysis and shall comport with the office of addiction  services  and
    42  supports' guidance on toxicology use;
    43    (d) a requirement that the [defendant] participant refrain from engag-
    44  ing  in  criminal behaviors[; (iii) if the defendant needs treatment for
    45  opioid use, that he or she].
    46    5-a. The court shall not disclose  a  participant's  protected  health
    47  information   without   the   participant's  consent  or  authorization;
    48  provided,  however, that a court may require a participant to consent to
    49  share the following protected  health  information  as  a  condition  of
    50  participating in judicial diversion:
    51    (a) record of attendance and relevant barriers to attendance;
    52    (b)  treatment  plan  and  any  recommended changes to the plan during
    53  participation in judicial diversion;
    54    (c) drug toxicology results, when part of the treatment plan; and
    55    (d) relevant updates regarding engagement in the treatment plan.
        A. 1263--B                          7

     1    5-b.  If  a  participant  has  one  or   more   conditions   requiring
     2  prescription  medication  or  certified drug treatments they may partic-
     3  ipate in and receive [medically  prescribed]  such  medication  or  drug
     4  treatments  under  the  care  of  a health care professional licensed or
     5  certified  under  title eight of the education law, acting within his or
     6  her lawful scope of practice[, provided that no].
     7    (a) No court shall limit the medications that a licensed mental health
     8  care professional has prescribed or certified for a participant;
     9    (b) No court shall require the use of any specified type or  brand  of
    10  drug during the course of medically prescribed [drug] treatments[.]; and
    11    (c)  No  court shall penalize or sanction a participant for periods of
    12  voluntary hospitalization, respite care, or other  forms  of  supportive
    13  care.
    14    5-c.    Every  effort  should be made to maximize the use of certified
    15  peers in every stage of the judicial diversion process.
    16    5-d. Upon request by the defense, the court shall  allow  participants
    17  to  consult  a  different  mental  health care professional for a second
    18  opinion and propose an alternative treatment plan. Any alternative opin-
    19  ion or alternative treatment plan shall be considered by the court  when
    20  determining the treatment plan.
    21    6.  Upon  [an eligible defendant's] a participant's agreement to abide
    22  by the conditions set by the court, the court  shall  issue  a  securing
    23  order  providing  for bail or release on the [defendant's] participant's
    24  own recognizance and conditioning  any  release  upon  the  agreed  upon
    25  conditions  pursuant  to  article  five hundred ten of this chapter. The
    26  period of [alcohol or substance use] treatment shall begin as  specified
    27  by  the court and as soon as practicable after the [defendant's] partic-
    28  ipant's release, taking into account the availability of  treatment,  so
    29  as  to  facilitate  early  intervention with respect to the [defendant's
    30  substance use or condition] participant's functional impairment and  the
    31  effectiveness  of  the  treatment program. In the event that a treatment
    32  program is not immediately available or becomes unavailable  during  the
    33  course  of  the [defendant's participation] participant's involvement in
    34  the judicial diversion program, the court may  release  the  [defendant]
    35  participant pursuant to the securing order.
    36    7. When participating in judicial diversion treatment pursuant to this
    37  article,  any  resident  of  this  state  who is covered under a private
    38  health insurance policy or contract issued for delivery  in  this  state
    39  pursuant to article thirty-two, forty-three or forty-seven of the insur-
    40  ance  law  or  article  forty-four  of  the public health law, or who is
    41  covered by a self-funded plan which provides coverage for the  diagnosis
    42  and  treatment  of  [chemical  abuse and chemical dependence] functional
    43  impairment however defined in such policy; shall first  seek  reimburse-
    44  ment for such treatment in accordance with the provisions of such policy
    45  or  contract.  The  court in its discretion may order the participant to
    46  apply for public insurance if they so qualify.  The court shall not deny
    47  access to treatment for inability to pay.
    48    8. (a) During the period  of  a  [defendant's  participation]  partic-
    49  ipant's  involvement  in  the  judicial diversion program, the treatment
    50  court  shall  retain  jurisdiction  of  the   [defendant]   participant,
    51  provided,  however,  that  the  court [may] shall allow such [defendant]
    52  participant to (i) reside in  another  jurisdiction,  [or]  and/or  (ii)
    53  participate  in [alcohol and substance use] treatment and other programs
    54  in the jurisdiction where the [defendant] participant resides or in  any
    55  other  jurisdiction, while participating in a judicial diversion program
    56  under conditions set by the court  and  agreed  to  by  the  [defendant]
        A. 1263--B                          8

     1  participant  pursuant to subdivisions five and six of this section.  The
     2  court may transfer the participant's  case  to  the  judicial  diversion
     3  court  in the county in which the participant resides pursuant to subdi-
     4  vision  five of section 170.15 of this part, subdivision four of section
     5  180.20 of this part, or section 230.21 of this part to ensure continuity
     6  of treatment.
     7    (b) The court may require the [defendant]  participant  to  appear  in
     8  court  [at any time] or, upon the request of the participant, make audio
     9  or video appearances pursuant to paragraph (b) of  subdivision  five  of
    10  this section  to enable the court to [monitor] promote the [defendant's]
    11  participant's  progress  in  [alcohol  or substance use] treatment.  The
    12  court shall provide notice, reasonable under the circumstances,  to  the
    13  people,  the  treatment  provider,  the  [defendant] participant and the
    14  [defendant's] participant's counsel  whenever  it  orders  or  otherwise
    15  requires  the  appearance  of the [defendant in] participation for court
    16  appearances. Failure to appear  as  required  without  reasonable  cause
    17  therefor  shall  constitute a violation of the conditions of the court's
    18  agreement with the [defendant] participant.
    19    9. (a) If at any time during the [defendant's  participation]  partic-
    20  ipant's  engagement  in  the  judicial  diversion program, the court has
    21  reasonable grounds to  believe  that  the  [defendant]  participant  has
    22  violated  a  [release]  program condition in an important respect or has
    23  willfully failed to appear before the  court  as  requested,  the  court
    24  except  as provided in subdivision two of section 510.50 of this chapter
    25  regarding a failure to appear, shall direct the [defendant]  participant
    26  to  appear [or issue a bench warrant to a police officer or an appropri-
    27  ate peace officer directing him or her to take the defendant into custo-
    28  dy and bring the defendant before the court without  unnecessary  delay;
    29  provided,  however,  that  under  no circumstances shall a defendant who
    30  requires treatment for opioid use be deemed to have violated  a  release
    31  condition  on  the  basis  of  his  or  her  participation  in medically
    32  prescribed drug treatments under the care of a health care  professional
    33  licensed  or  certified  under  title eight of the education law, acting
    34  within his or her lawful  scope  of  practice]  for  a  hearing  on  the
    35  violation  pursuant  to  paragraph (b) of this subdivision with at least
    36  forty-eight hours notice to the participant or the  participant's  coun-
    37  sel,  unless  notice  is  waived by the participant.   The court may not
    38  modify the participant's securing order until such time as the hearing's
    39  conclusion. The relevant provisions of section 530.60  of  this  chapter
    40  relating  to issuance of securing orders shall apply to such proceedings
    41  under this subdivision.
    42    (b) In determining whether a [defendant] participant violated a condi-
    43  tion of [his or her release under] the judicial diversion program in  an
    44  important  respect  or  willfully  failed  to appear in court, the court
    45  [may] shall conduct a [summary] hearing consistent with due process [and
    46  sufficient] to satisfy the court that the [defendant]  participant  has,
    47  in fact, violated the condition or willfully failed to appear.
    48    (i)  The people shall bear the burden of proving by clear and convinc-
    49  ing evidence that the participant has violated a condition of the  judi-
    50  cial  diversion  program in an important respect or has willfully failed
    51  to appear. The participant may cross-examine witnesses and  may  present
    52  relevant, admissible evidence on their own behalf.
    53    (ii)  At  the request of the participant or the participant's counsel,
    54  the court may conduct proceedings off the record  for  portions  of  the
    55  proceedings  that will likely result in adverse collateral consequences,
        A. 1263--B                          9

     1  including immigration consequences. In the alternative, the court  shall
     2  seal portions of the proceeding that may result in such consequences.
     3    (c)  If the court determines by clear and convincing evidence that the
     4  [defendant] participant has violated a program condition [of his or  her
     5  release  under  the  judicial  diversion  program,  the] in an important
     6  respect or willfully failed to appear, the court shall respond by  using
     7  a system of graduated and appropriate responses designed to address such
     8  inappropriate  behaviors  and  facilitate,  where   possible, successful
     9  completion of the treatment program. The court may  permit  the  partic-
    10  ipant  to continue their treatment mandate as previously ordered; modify
    11  the [conditions thereof, reconsider the order of  recognizance  or  bail
    12  pursuant  to  subdivision two of section 510.30 of this chapter,] treat-
    13  ment plan according to the recommendation of the treatment provider;  or
    14  terminate  the [defendant's] participant's participation in the judicial
    15  diversion program[; and when applicable  proceed  with  the  defendant's
    16  sentencing   in  accordance  with  the  agreement.  Notwithstanding  any
    17  provision of law to the contrary, the  court  may  impose  any  sentence
    18  authorized  for  the  crime  of  conviction  in accordance with the plea
    19  agreement, or any lesser sentence authorized to be imposed on  a  felony
    20  drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
    21  section 70.70 of the penal law taking into account] if no  other  treat-
    22  ment option is available. If the court finds a reasonable explanation or
    23  mitigation  for  any  alleged  violation  or  alleged willful failure to
    24  appear, the securing order  shall  not  be  modified.  The  court  shall
    25  consider:
    26    (i) the length of time the [defendant] participant has spent in [resi-
    27  dential] treatment and how best to continue treatment [while the defend-
    28  ant  is  serving that sentence. In determining what action to take for a
    29  violation of a release condition, the court shall consider];
    30    (ii) all relevant circumstances, including the views of  the  prosecu-
    31  tor, the defense and the [alcohol or substance use] participant's inter-
    32  est  in  continuing treatment [provider, and the extent to which persons
    33  who ultimately successfully complete a drug treatment regimen sometimes]
    34  or the program;
    35    (iii) the role of relapse [by not abstaining from alcohol or substance
    36  use or by failing to comply fully with all  requirements  imposed  by  a
    37  treatment  program.    The  court  shall also consider using a system of
    38  graduated and appropriate responses or  sanctions  designed  to  address
    39  such  inappropriate  behaviors,  protect  public  safety and facilitate,
    40  where possible, successful completion of the alcohol  or  substance  use
    41  treatment program] in recovery and treatment; and
    42    (iv)  any  other mitigating factors that may have impacted the alleged
    43  violation or willful failure to appear.
    44    (d) Nothing in this subdivision shall be construed  [as  preventing  a
    45  court  from  terminating  a  defendant's  participation  in the judicial
    46  diversion program for violating a release condition when such  a  termi-
    47  nation  is  necessary  to  preserve public safety. Nor shall anything in
    48  this subdivision be  construed]  as  precluding  the  prosecution  of  a
    49  [defendant]  participant for the commission of a different offense while
    50  participating in the judicial diversion program.
    51    (e) A [defendant] participant may at any time advise  the  court  that
    52  [he  or she wishes] they wish to terminate participation in the judicial
    53  diversion program, at which time the court shall [proceed with the  case
    54  and, where applicable, shall impose sentence in accordance with the plea
    55  agreement.  Notwithstanding  any  provision  of law to the contrary, the
    56  court may impose any sentence authorized for the crime of conviction  in
        A. 1263--B                         10

     1  accordance with the plea agreement, or any lesser sentence authorized to
     2  be imposed on a felony drug offender pursuant to paragraph (b) or (c) of
     3  subdivision  two  of  section 70.70 of the penal law taking into account
     4  the  length of time the defendant spent in residential treatment and how
     5  best to continue treatment while the defendant is serving that sentence]
     6  transfer the case back to the appropriate trial part.
     7    10. Upon the court's determination that  the  [defendant]  participant
     8  has  successfully completed the required period of [alcohol or substance
     9  use] treatment and has otherwise satisfied the conditions  required  for
    10  successful completion of the judicial diversion program, the court shall
    11  [comply  with the terms and conditions it set for final disposition when
    12  it accepted the defendant's agreement to  participate  in  the  judicial
    13  diversion  program. Such disposition may include, but is not limited to:
    14  (a) requiring the defendant to undergo a  period  of  interim  probation
    15  supervision  and,  upon  the  defendant's  successful  completion of the
    16  interim probation supervision term, notwithstanding the provision of any
    17  other law, permitting the defendant to withdraw his or her  guilty  plea
    18  and dismissing the indictment; or (b) requiring the defendant to undergo
    19  a   period   of  interim  probation  supervision  and,  upon  successful
    20  completion of the interim probation  supervision  term,  notwithstanding
    21  the provision of any other law, permitting the defendant to withdraw his
    22  or  her  guilty  plea,  enter a guilty plea to a misdemeanor offense and
    23  sentencing the defendant as promised in the plea  agreement,  which  may
    24  include  a  period of probation supervision pursuant to section 65.00 of
    25  the penal law; or (c) allowing the defendant  to  withdraw  his  or  her
    26  guilty  plea  and  dismissing]  dismiss the indictment or superior court
    27  information,  felony  complaint,  misdemeanor  complaint,   information,
    28  simplified  information,  or  prosecutor's information and seal the case
    29  pursuant to section 160.50 of this chapter.   Participants who  success-
    30  fully  complete  judicial  diversion shall also be eligible to apply for
    31  sealing of prior convictions pursuant to section 160.58 of this chapter.
    32  Upon successful completion of judicial diversion, the court shall notify
    33  the participant of their potential eligibility for sealing  pursuant  to
    34  subdivision  two of section 160.58 of this chapter. No participant shall
    35  be required or permitted to waive eligibility for sealing as a condition
    36  of participation in judicial diversion.
    37    10-a. Treatment providers shall collaborate with  the  participant and
    38  the  court to create a post-graduation plan prior to completion of judi-
    39  cial diversion. Such plan shall make every effort to assist the  partic-
    40  ipant  in  obtaining  stable  housing  and meeting their self-identified
    41  long-term goals after graduation. However, when a  participant  finishes
    42  their  treatment  plan,  they   shall be considered to have successfully
    43  completed their obligation to the court, regardless of their ability  to
    44  secure housing, employment, or other personal goals identified.
    45    11.  Nothing  in  this  article  shall  be construed as restricting or
    46  prohibiting courts or district attorneys from using other lawful  proce-
    47  dures  or  models  for  placing  appropriate  persons  into  [alcohol or
    48  substance use] treatment.
    49    § 7. The criminal procedure law is amended by  adding  a  new  section
    50  216.10 to read as follows:
    51  § 216.10 Diversion part established.
    52    1.  The chief administrator of the courts is hereby directed to estab-
    53  lish, in each county of the state, a part of the court to  be  known  as
    54  the  diversion  part for the county in which such court presides. To aid
    55  in their work, such judges and diversion court personnel  shall  receive
    56  annual  training  in  specialized  areas,  including, but not limited to
        A. 1263--B                         11

     1  disability, mental illness, and substance use disorder needs,  including
     2  co-occurring  disorders, evidence-based practices, trauma-informed care,
     3  the immigration consequences of participation in judicial diversion  for
     4  individuals who are not United States citizens, certified peer programs,
     5  harm  reduction principles, and protected health information, as well as
     6  training in procedural justice and cultural competency and  medicaid  or
     7  medicare eligibility. The chief administrator of the courts shall ensure
     8  that  all  employees  who  staff the diversion parts receive specialized
     9  training in procedural justice and  working  with  people  with  complex
    10  needs.
    11    2.  Each  chief  administrator  of the courts shall at the end of each
    12  year prepare and file an annual report, which the office shall  compile,
    13  publish on its website and make available upon request to members of the
    14  public. Such reports shall not include any personal identifying informa-
    15  tion  for  any individual participants. Each such report, in addition to
    16  other relevant information, shall set forth the following, disaggregated
    17  by each county served:
    18    (a) the number of people with cases in the diversion part for each  of
    19  the  following categories, broken down by gender, sex, race and ethnici-
    20  ty:
    21    (i) the number of people who make an application for evaluation;
    22    (ii) the number of people who are accepted  into  judicial  diversion;
    23  and
    24    (iii) the number of people who successfully complete the program;
    25    (b) the length of time, in months, each case remained in the diversion
    26  part  prior to acquittal, dismissal, release on recognizance, revocation
    27  of release on conditions, and sentencing;
    28    (c) the crimes with which each participant was charged;
    29    (d) the specific functional impairment or impairments  for  which  the
    30  participant  received  treatment  while  participating  in  the judicial
    31  diversion program;
    32    (e) the final  disposition,  including  the  sentence,  of  each  case
    33  considered for judicial diversion; and
    34    (f)  a  list of service providers, including contact information, that
    35  the diversion part in the superior court of the county partners with  to
    36  serve participants.
    37    § 8. Subdivision 5 of section 170.15 of the criminal procedure law, as
    38  amended  by  chapter  91  of  the  laws  of  2021, is amended to read as
    39  follows:
    40    5. (a) Notwithstanding any provision of this section to the  contrary,
    41  in  any  county  [outside  a  city having a population of one million or
    42  more], upon or after arraignment of a defendant  on  an  information,  a
    43  simplified  information,  a  prosecutor's  information  or a misdemeanor
    44  complaint pending in a local criminal court,  such  court  [may]  shall,
    45  upon  motion  of the defendant and after giving the district attorney an
    46  opportunity to be heard, order that the action be removed from the court
    47  in which the matter is pending to another local criminal  court  in  the
    48  same  county,  or with consent of the district attorney and the district
    49  attorney of the adjoining county to another court in [such] an adjoining
    50  county, or to a court in the county in which the defendant resides  that
    51  has  been designated as a judicial diversion, human trafficking [court],
    52  or veterans treatment court by the chief administrator  of  the  courts,
    53  and  such  judicial  diversion,  human  trafficking [court], or veterans
    54  treatment court [may] shall then conduct  such  action  to  judgment  or
    55  other  final  deposition;  provided,  however,  that  no court may order
    56  removal pursuant to this subdivision to a veterans treatment court of  a
        A. 1263--B                         12

     1  family  offense charge described in subdivision one of section 530.11 of
     2  this chapter where the accused and the person alleged to be  the  victim
     3  of  such  offense charged are members of the same family or household as
     4  defined  in such subdivision one of section 530.11; and provided further
     5  that an order of removal issued under this subdivision  shall  not  take
     6  effect  until five days after the date the order is issued unless, prior
     7  to such effective date, the human trafficking court or  veterans  treat-
     8  ment court notifies the court that issued the order that:
     9    i.  it  will not accept the action, in which event the order shall not
    10  take effect; or
    11    ii. it will accept the action on a date prior to such effective  date,
    12  in which event the order shall take effect upon such prior date.
    13    (b)  Upon  providing  notification pursuant to subparagraph i or ii of
    14  paragraph (a) of this subdivision, the human trafficking court or veter-
    15  ans treatment court shall promptly give notice to the defendant, his  or
    16  her counsel, and the district attorney.
    17    § 9. Subdivision 4 of section 180.20 of the criminal procedure law, as
    18  amended  by  chapter  91  of  the  laws  of  2021, is amended to read as
    19  follows:
    20    4. (a) Notwithstanding any provision of this section to the  contrary,
    21  [in  any  county  outside  a  city having a population of one million or
    22  more,] upon or after arraignment of a defendant on  a  felony  complaint
    23  pending in a local criminal court having preliminary jurisdiction there-
    24  of,  such  court  [may]  shall,  upon  motion of the defendant and after
    25  giving the district attorney an opportunity to be heard, order that  the
    26  action  be  removed  from  the  court  in which the matter is pending to
    27  another local criminal court in the same county, or with consent of  the
    28  district  attorney  and the district attorney of the adjoining county to
    29  another court in such adjoining county, or to a court in the  county  in
    30  which  the  defendant  resides,  that  has been designated as a judicial
    31  diversion, human trafficking [court], or veterans treatment court by the
    32  chief administrator of the courts, and such  judicial  diversion,  human
    33  trafficking  [court],  or veterans treatment court may then conduct such
    34  action to judgment or other final disposition; provided,  however,  that
    35  no  court  may  order removal pursuant to this subdivision to a veterans
    36  treatment court of a family offense charge described in subdivision  one
    37  of  section  530.11  of  this  chapter  where the accused and the person
    38  alleged to be the victim of such offense charged are members of the same
    39  family or household as  defined  in  such  subdivision  one  of  section
    40  530.11;  and  provided  further  an  order  of removal issued under this
    41  subdivision shall not take effect until five days  after  the  date  the
    42  order  is  issued  unless, prior to such effective date, the human traf-
    43  ficking court or veterans treatment court notifies the court that issued
    44  the order that:
    45    i. it will not accept the action, in which event the order  shall  not
    46  take effect; or
    47    ii.  it will accept the action on a date prior to such effective date,
    48  in which event the order shall take effect upon such prior date.
    49    (b) Upon providing notification pursuant to subparagraph i  or  ii  of
    50  paragraph (a) of this subdivision, the human trafficking court or veter-
    51  ans  treatment court shall promptly give notice to the defendant, his or
    52  her counsel and the district attorney.
    53    § 10. Section 230.21 of the criminal procedure law, as added by  chap-
    54  ter 91 of the laws of 2021, is amended to read as follows:
    55  § 230.21 Removal  of  action to certain courts in an adjoining county or
    56             county in which the defendant resides.
        A. 1263--B                         13

     1    1. In any county [outside a city having a population of one million or
     2  more], [the] upon or after arraignment of a defendant on  an  indictment
     3  pending  in  a  superior  court  having jurisdiction thereof, such court
     4  [may] shall, upon motion of  the  defendant  and  with  consent  of  the
     5  district attorney and the district attorney of the adjoining county that
     6  has  a  superior  court designated a human trafficking court or veterans
     7  treatment court by the chief administrator of the courts, order that the
     8  indictment and action be removed from the court in which the  matter  is
     9  pending  to  [such]  a  superior  court in an adjoining county or in the
    10  county in which the defendant resides that has been designated  a  judi-
    11  cial  diversion, human trafficking [court], or veterans treatment court,
    12  whereupon such court may then conduct such action to judgment  or  other
    13  final disposition; provided, however, that no court may order removal to
    14  a  veterans  treatment  court  of  a  family offense charge described in
    15  subdivision one of section 530.11  of  this  chapter  pursuant  to  this
    16  section  where  the  accused  and the person alleged to be the victim of
    17  such offense charged are members of the  same  family  or  household  as
    18  defined  in such subdivision one of section 530.11; and provided further
    19  that an order of removal issued under this subdivision  shall  not  take
    20  effect  until five days after the date the order is issued unless, prior
    21  to such effective date, the human trafficking court or  veterans  treat-
    22  ment court notifies the court that issued the order that:
    23    (a)  it will not accept the action, in which event the order shall not
    24  take effect, or
    25    (b) it will accept the action on a date prior to such effective  date,
    26  in which event the order shall take effect upon such prior date.
    27    2.  Upon  providing  notification  pursuant to paragraph (a) or (b) of
    28  subdivision one of this section, the human trafficking court or veterans
    29  treatment court shall promptly give notice to the defendant, his or  her
    30  counsel and the district attorney of both counties.
    31    §  11.  Paragraph (r) of subdivision 2 of section 212 of the judiciary
    32  law, as added by section 15 of part AAA of chapter 56  of  the  laws  of
    33  2009, is amended to read as follows:
    34    (r)  Ensure  that  cases  eligible  for judicial diversion pursuant to
    35  article two hundred sixteen of  the  criminal  procedure  law  shall  be
    36  assigned  to court parts in the manner provided by the chief administra-
    37  tor and that, to the extent practicable, such cases are presided over by
    38  judges who, by virtue of the structure, caseload and  resources  of  the
    39  parts  and  the  judges'  training,  are in the best position to provide
    40  effective supervision over such cases,  such  as  the  [drug]  treatment
    41  courts.  In  compliance  with  these provisions, the chief administrator
    42  shall [give due weight to] individually assess  the  need  for  diverted
    43  defendants  to make regular court appearances, and be closely supervised
    44  by the court, for the duration of [drug] treatment and the  pendency  of
    45  the criminal charge.
    46    § 12. The section heading, subdivision 1, and the opening paragraph of
    47  subdivision  2 of section 160.58 of the criminal procedure law, as added
    48  by section 3 of part AAA of chapter 56 of the laws of 2009, are  amended
    49  to read as follows:
    50    Conditional  sealing  of  certain  [controlled substance, marihuana or
    51  specified offense] convictions for people who complete  judicial  diver-
    52  sion or a judicially sanctioned drug treatment program.
    53    1.  A  [defendant  convicted  of  any  offense  defined in article two
    54  hundred twenty or two hundred twenty-one of the penal law or a specified
    55  offense defined in subdivision five of section 410.91 of  this  chapter]
    56  person who has successfully completed a judicial diversion program under
        A. 1263--B                         14

     1  article  two  hundred  sixteen  of  this chapter, or one of the programs
     2  heretofore known as drug treatment  alternative  to  prison  or  another
     3  judicially  sanctioned  drug  treatment  program  of  similar  duration,
     4  requirements  and  level of supervision, and [has completed the sentence
     5  imposed for the offense or offenses,] was sentenced for  an  offense  or
     6  offenses  upon  completion  of  such  program  is  eligible to have such
     7  offense or offenses conditionally sealed pursuant to this  section.  For
     8  such  offenses,  the  court that sentenced the defendant to a judicially
     9  sanctioned drug treatment program may, on  its  own  motion  or  on  the
    10  defendant's  motion, order that all official records and papers relating
    11  to the arrest, prosecution and conviction which resulted in the  defend-
    12  ant's  participation in the judicially sanctioned drug treatment program
    13  be conditionally sealed.
    14    [The court that sentenced the defendant  to  a  judicially  sanctioned
    15  drug  treatment  program  may  on  its own motion, or on the defendant's
    16  motion, order that all official  records  and  papers  relating  to  the
    17  arrest,  prosecution  and  conviction  which resulted in the defendant's
    18  participation in the judicially sanctioned  drug  treatment  program  be
    19  conditionally sealed. In such case, the court may also]
    20    Where  a person has completed a judicial diversion program pursuant to
    21  article two hundred sixteen of this chapter or a drug treatment alterna-
    22  tive to prison program or another judicially sanctioned  drug  treatment
    23  program,  the  court  that  supervised the person's participation in the
    24  program may, on its own motion or  on  the  defendant's  motion,  condi-
    25  tionally seal the arrest, prosecution and conviction records for no more
    26  than  three  of  the [defendant's] person's prior eligible misdemeanors,
    27  which for purposes of this subdivision shall be limited  to  misdemeanor
    28  offenses  defined  in article two hundred twenty [or], two hundred twen-
    29  ty-one, or two hundred twenty-two of the penal law.  The court may  only
    30  seal   the   records   of  the  defendant's  arrests,  prosecutions  and
    31  convictions when:
    32    § 13.  This act shall take effect one year after it shall have  become
    33  a law; provided, however that the amendments to the opening paragraph of
    34  subdivision  1  of  section 216.00 of the criminal procedure law made by
    35  section two of this act shall be subject to the expiration and reversion
    36  of such paragraph pursuant to section 12 of chapter 90 of  the  laws  of
    37  2014, as amended, when upon such date the provisions of section three of
    38  this act shall take effect.