Bill Text: NY A09675 | 2023-2024 | General Assembly | Introduced
Bill Title: Allows courts to consider the risk of continued substance abuse and likelihood of serious harm to the principal when considering committing such principal to the custody of the sheriff.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced) 2024-04-03 - referred to codes [A09675 Detail]
Download: New_York-2023-A09675-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 9675 IN ASSEMBLY April 3, 2024 ___________ Introduced by M. of A. GUNTHER -- read once and referred to the Commit- tee on Codes AN ACT to amend the criminal procedure law, in relation to allowing courts to consider the risk of continued substance abuse in certain instances The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 510.10 of the criminal procedure law is amended by 2 adding three new subdivisions 5-a, 5-b and 5-c to read as follows: 3 5-a. Notwithstanding the provisions of subdivisions three and four of 4 this section, the court may, in its discretion, commit the principal to 5 the custody of the sheriff for a period of no more than fifteen days, if 6 such principal has a substantial risk of continued substance abuse and 7 there is a likelihood of serious harm to such principal and there exists 8 no alternative less restrictive means available to confine or supervise 9 such principal in order to prevent the principal's substantial risk of 10 continued substance abuse upon release from custody. Alternative and 11 less restrictive means of confinement and supervision shall mean avail- 12 able immediate commitment of such principal in a state licensed 13 substance abuse treatment center, drug rehabilitation center or mental 14 health facility. In making its determination, the court may consider the 15 following factors, including but not limited to: 16 (a) admission by the principal that they are addicted to a controlled 17 substance; 18 (b) requests by the principal's immediate family members to hold the 19 principal in custody to prevent the likelihood of serious harm; 20 (c) a record of the principal's arrests for similar offenses related 21 to substance abuse; 22 (d) documentation of reasons for any failed attempts to complete drug 23 court; 24 (e) the arresting officer's testimony of the principal's intoxication 25 or of witnessing the principal's use of a controlled substance; and 26 (f) the principal's possession of a controlled substance or possession 27 of paraphernalia related thereto. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09129-06-4A. 9675 2 1 5-b. Upon the commitment of such principal to the custody of the sher- 2 iff, or an available, less restrictive means of confinement and super- 3 vision, the court shall order a duly licensed professional to monitor 4 such principal as needed to evaluate the principal's need for treatment 5 and/or medications, and to complete an evaluation for addiction to a 6 controlled substance. Treatment, including but not limited to medica- 7 tions, shall be provided to the principal without unnecessary delay, as 8 recommended by such licensed professional. The principal's complete 9 evaluation, including recommendations for the continued custody of such 10 principal, considerations for participation in a judicial diversion 11 program, immediate release from custody, and any other proposals for the 12 care and treatment of such principal shall be provided to the court 13 without unnecessary delay and within no more than seventy-two hours from 14 the completion of such principal's evaluation. The principal, such prin- 15 cipal's counsel and the district attorney's office shall be provided a 16 copy of the principal's evaluation upon request to the court. 17 5-c. The principal shall be afforded the opportunity for a hearing to 18 request the principal's immediate release from the custody of the sher- 19 iff or confinement in a treatment or mental health facility, prior to 20 the arraignment of such principal. If within seventy-two hours of the 21 court's receipt of the principal's request for such hearing, the princi- 22 pal is not brought before a local criminal court, the principal shall be 23 immediately released from the sheriff's custody or confinement in a 24 treatment facility or mental health facility and served an appearance 25 ticket. The principal shall be entitled to introduce their controlled 26 substance evaluation including any recommendations made by a licensed 27 physician that principal should not be held in custody of the sheriff or 28 confined at a treatment or mental health facility and that the principal 29 is not in substantial risk for substance abuse, or there is not a like- 30 lihood of the principal inflicting serious harm upon their release from 31 custody. The court shall consider the principal's complete evaluation 32 including treatment recommendations, record of arrests, convictions and 33 any record of participation in any drug court and shall decide whether 34 to immediately release such principal from the custody of the sheriff or 35 confinement in a treatment facility or mental health facility, or to 36 remand the principal to the custody of the sheriff or confinement in a 37 treatment facility or mental health facility for the remainder of the 38 principal's fifteen day period of custody or confinement. 39 § 2. The opening paragraph and subparagraphs (i), (xx) and (xxi) of 40 paragraph (b) of subdivision 1 of section 530.20 of the criminal proce- 41 dure law, the opening paragraph as amended by section 6 of subpart A of 42 part VV of chapter 56 of the laws of 2023, subparagraph (i) as amended 43 by section 3 of part UU of chapter 56 of the laws of 2020, subparagraph 44 (xx) as amended and subparagraph (xxi) as added by section 4 of subpart 45 C of part UU of chapter 56 of the laws of 2022, are amended and a new 46 subparagraph (xxii) is added to read as follows: 47 Where the principal stands charged with a qualifying offense, the 48 court, unless otherwise prohibited by law, may in its discretion release 49 the principal pending trial on the principal's own recognizance or under 50 non-monetary conditions, fix bail, order non-monetary conditions in 51 conjunction with fixing bail, or, where the defendant is charged with a 52 qualifying offense [which is a felony], the court may commit the princi- 53 pal to the custody of the sheriff. The court shall explain its choice of 54 securing order on the record or in writing. A principal stands charged 55 with a qualifying offense when [he or she] such principal stands charged 56 with:A. 9675 3 1 (i) a felony enumerated in section 70.02 of the penal law[, other than2robbery in the second degree as defined in subdivision one of section3160.10 of the penal law, provided, however, that burglary in the second4degree as defined in subdivision two of section 140.25 of the penal law5shall be a qualifying offense only where the defendant is charged with6entering the living area of the dwelling]; 7 (xx) any felony or class A misdemeanor involving harm to an identifi- 8 able person or property, or any charge of criminal possession of a 9 firearm as defined in section 265.01-b of the penal law where such 10 charge arose from conduct occurring while the defendant was released on 11 [his or her] their own recognizance, released under conditions, or had 12 yet to be arraigned after the issuance of a desk appearance ticket for a 13 separate felony or class A misdemeanor involving harm to an identifiable 14 person or property, provided, however, that the prosecutor must show 15 reasonable cause to believe that the defendant committed the instant 16 crime and any underlying crime. For the purposes of this subparagraph, 17 any of the underlying crimes need not be a qualifying offense as defined 18 in this subdivision. For the purposes of this paragraph, "harm to an 19 identifiable person or property" shall include but not be limited to 20 theft of or damage to property. However, based upon a review of the 21 facts alleged in the accusatory instrument, if the court determines that 22 such theft is negligible and does not appear to be in furtherance of 23 other criminal activity, the principal shall be released on [his or her] 24 their own recognizance or under appropriate non-monetary conditions; 25 [or] 26 (xxi) criminal possession of a weapon in the third degree as defined 27 in subdivision three of section 265.02 of the penal law or criminal sale 28 of a firearm to a minor as defined in section 265.16 of the penal 29 law[.]; or 30 (xxii) a controlled substance offense as defined in article two 31 hundred twenty of the penal law. 32 § 3. Subdivision 1 of section 530.20 of the criminal procedure law is 33 amended by adding three new paragraphs (c), (e) and (f) to read as 34 follows: 35 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 36 subdivision, the court may, in its discretion, commit the principal to 37 the custody of the sheriff for a period of no more than fifteen days, if 38 such principal has a substantial risk of continued substance abuse and 39 there is a likelihood of serious harm to such principal and there exists 40 no alternative less restrictive means available to confine or supervise 41 such principal in order to prevent the principal's substantial risk of 42 continued substance abuse upon release from custody. Alternative and 43 less restrictive means of confinement and supervision shall mean avail- 44 able immediate commitment of such principal in a state licensed 45 substance abuse treatment center, drug rehabilitation center or mental 46 health facility. In making its determination, the court may consider the 47 following factors, including but not limited to: 48 (i) admission by the principal that they are addicted to a controlled 49 substance; 50 (ii) requests by the principal's immediate family members to hold the 51 principal in custody to prevent the likelihood of serious harm; 52 (iii) a record of the principal's arrests for similar offenses related 53 to substance abuse; 54 (iv) documentation of reasons for any failed attempts to complete drug 55 court;A. 9675 4 1 (v) the arresting officer's testimony of witnessing the principal's 2 use of a controlled substance; and 3 (vi) the principal's possession of a controlled substance or 4 possession of paraphernalia related thereto. 5 (e) Upon the commitment of such principal to the custody of the sher- 6 iff, or an available, less restrictive means of confinement and super- 7 vision, the court shall order a duly licensed professional to monitor 8 such principal as needed to evaluate the principal's need for treatment 9 and/or medications, and to complete an evaluation for addiction to a 10 controlled substance. Treatment, including but not limited to medica- 11 tions, shall be provided to the principal without unnecessary delay, as 12 recommended by such licensed professional. The principal's complete 13 evaluation, including recommendations for the continued custody of such 14 principal, immediate release from custody, and any other proposals for 15 the care and treatment of such principal shall be provided to the court 16 without unnecessary delay and within no more than seventy-two hours from 17 the completion of such principal's evaluation. The principal, such prin- 18 cipal's counsel and the district attorney's office shall be provided a 19 copy of the principal's evaluation upon request to the court. 20 (f) The principal shall be afforded the opportunity for a hearing to 21 request the principal's immediate release from the custody of the sher- 22 iff or confinement in a treatment or mental health facility, prior to 23 the arraignment of such principal. If within seventy-two hours of the 24 court's receipt of the principal's request for such hearing, the princi- 25 pal is not brought before a local criminal court, the principal shall be 26 immediately released from the sheriff's custody or confinement in a 27 treatment facility or mental health facility and served an appearance 28 ticket. The principal shall be entitled to introduce their controlled 29 substance evaluation including any recommendations made by a licensed 30 physician that principal should not be held in custody of the sheriff or 31 confined at a treatment or mental health facility and that the principal 32 is not in substantial risk for substance abuse, or there is not a like- 33 lihood of the principal inflicting serious harm upon their release from 34 custody. The court shall consider the principal's complete evaluation 35 including treatment recommendations, record of arrests, convictions and 36 any record of participation in any drug court and shall decide whether 37 to immediately release such principal from the custody of the sheriff or 38 confinement in a treatment facility or mental health facility, or to 39 remand the principal to the custody of the sheriff or confinement in a 40 treatment facility or mental health facility for the remainder of the 41 principal's fifteen day period of custody or confinement. 42 § 4. Section 530.40 of the criminal procedure law is amended by adding 43 three new subdivisions 5-a, 5-b and 5-c to read as follows: 44 5-a. Notwithstanding the provisions of subdivisions three and four of 45 this section, the court may, in its discretion, commit the principal to 46 the custody of the sheriff for a period of no more than fifteen days, if 47 such principal has a substantial risk of continued substance abuse and 48 there is a likelihood of serious harm to such principal and there exists 49 no alternative less restrictive means available to confine or supervise 50 such principal in order to prevent the principal's substantial risk of 51 continued substance abuse upon release from custody. Alternative and 52 less restrictive means of confinement and supervision shall mean avail- 53 able immediate commitment of such principal in a state licensed 54 substance abuse treatment center, drug rehabilitation center or mental 55 health facility. In making its determination, the court may consider the 56 following factors, including but not limited to:A. 9675 5 1 (a) admission by the principal that they are addicted to a controlled 2 substance; 3 (b) requests by the principal's immediate family members to hold the 4 principal in custody to prevent the likelihood of serious harm; 5 (c) a record of the principal's arrests for similar offenses related 6 to substance abuse; 7 (d) documentation of reasons for any failed attempts to complete drug 8 court; 9 (e) the arresting officer's testimony of the principal's intoxication 10 or of witnessing the principal's use of a controlled substance; and 11 (f) the principal's possession of a controlled substance or possession 12 of paraphernalia related thereto. 13 5-b. Upon the commitment of such principal to the custody of the sher- 14 iff, or an available, less restrictive means of confinement and super- 15 vision, the court shall order a duly licensed professional to monitor 16 such principal as needed to evaluate the principal's need for treatment 17 and/or medications, and to complete an evaluation for addiction to a 18 controlled substance. Treatment, including but not limited to medica- 19 tions, shall be provided to the principal without unnecessary delay, as 20 recommended by such licensed professional. The principal's complete 21 evaluation, including recommendations for the continued custody of such 22 principal, immediate release from custody, and any other proposals for 23 the care and treatment of such principal shall be provided to the court 24 without unnecessary delay and within no more than seventy-two hours from 25 the completion of such principal's evaluation. The principal, such prin- 26 cipal's counsel and the district attorney's office shall be provided a 27 copy of the principal's evaluation upon request to the court. 28 5-c. The principal shall be afforded the opportunity for a hearing to 29 request the principal's immediate release from the custody of the sher- 30 iff or confinement in a treatment or mental health facility, prior to 31 the arraignment of such principal. If within seventy-two hours of the 32 court's receipt of the principal's request for such hearing, the princi- 33 pal is not brought before a local criminal court, the principal shall be 34 immediately released from the sheriff's custody or confinement in a 35 treatment facility or mental health facility and served an appearance 36 ticket. The principal shall be entitled to introduce their controlled 37 substance evaluation including any recommendations made by a licensed 38 physician that principal should not be held in custody of the sheriff or 39 confined at a treatment or mental health facility and that the principal 40 is not in substantial risk for substance abuse, or there is not a like- 41 lihood of the principal inflicting serious harm upon their release from 42 custody. The court shall consider the principal's complete evaluation 43 including treatment recommendations, record of arrests, convictions and 44 any record of participation in any drug court and shall decide whether 45 to immediately release such principal from the custody of the sheriff or 46 confinement in a treatment facility or mental health facility, or to 47 remand the principal to the custody of the sheriff or confinement in a 48 treatment facility or mental health facility for the remainder of the 49 principal's fifteen day period of custody or confinement. 50 § 5. Subdivision 1 of section 510.30 of the criminal procedure law, as 51 amended by section 4 of subpart A of part VV of chapter 56 of the laws 52 of 2023, is amended to read as follows: 53 1. With respect to any principal, the court in all cases, unless 54 otherwise provided by law, must impose a securing order in accordance 55 with section 510.10 of this article, and shall explain the basis for its 56 determination and choice of securing order on the record or in writ-A. 9675 6 1 ing[.], which shall include, but not be limited to, whether the princi- 2 pal has a substantial risk of continued substance abuse and there is a 3 likelihood of serious harm to such principal and there exists no alter- 4 native less restrictive means available to confine or supervise such 5 principal in order to prevent the principal's substantial risk of 6 continued substance abuse upon release from custody. Alternative and 7 less restrictive means of confinement and supervision shall mean avail- 8 able immediate commitment of such principal in a state licensed 9 substance abuse treatment center, drug rehabilitation center or mental 10 health facility. In making its determination, the court may consider the 11 following factors, including but not limited to: 12 (a) admission by the principal that they are addicted to a controlled 13 substance; 14 (b) requests by the principal's immediate family members to hold the 15 principal in custody to prevent the likelihood of serious harm; 16 (c) a record of the principal's arrests for similar offenses related 17 to substance abuse; 18 (d) documentation of reasons for any failed attempts to complete drug 19 court; 20 (e) the arresting officer's testimony of witnessing the principal's 21 use of a controlled substance; and 22 (f) the principal's possession of a controlled substance or possession 23 of paraphernalia related thereto. 24 § 6. Section 140.20 of the criminal procedure law is amended by adding 25 a new subdivision 9 to read as follows: 26 9. If after arresting a person, for any offense, a police officer 27 reasonably believes the arrested person is likely addicted to a 28 controlled substance, such arrested person may be temporarily held in 29 custody but must be brought before a local criminal court without unnec- 30 essary delay for a determination of whether the arrested person should 31 be committed to the custody of the sheriff under subdivision five-a of 32 section 510.10, paragraph (c) of subdivision one of section 530.20 or 33 subdivision five-a of section 530.40 of this chapter. In making a deter- 34 mination that the arrested person is likely addicted to a controlled 35 substance and is at substantial risk for continued substance abuse upon 36 release from custody, a police officer may consider the following 37 factors, including but not limited to: 38 (a) the arrested person appears intoxicated, impaired or incapacitated 39 at the time of the arrest, or in the hours following the arrest and 40 while the arrested person is in the custody of the arresting officers or 41 while physically present at the police station; 42 (b) admission by the arrested person that they are addicted to a 43 controlled substance; 44 (c) requests by the arrested person's known immediate family members, 45 or fellow residential cohabitants, to hold the arrested person in custo- 46 dy in order to prevent the likelihood of serious harm; 47 (d) knowledge of the arrested person's record of arrests for similar 48 offenses directly related to substance abuse; 49 (e) the arresting officer witnessed the arrested person use a 50 controlled substance; and 51 (f) the arresting officer found the arrested person in possession of a 52 controlled substance or paraphernalia related thereto at the time of the 53 arrest, or upon a search of such arrested person. 54 § 7. This act shall take effect immediately.
