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.