Bill Text: NY S02881 | 2021-2022 | General Assembly | Amended

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Bill Title: Relates to judicial diversion programs; establishes a diversion part in each county.

Spectrum: Partisan Bill (Democrat 17-0)

Status: (Introduced - Dead) 2022-01-05 - REFERRED TO ALCOHOLISM AND SUBSTANCE ABUSE [S02881 Detail]

Download: New_York-2021-S02881-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         2881--B

                               2021-2022 Regular Sessions

                    IN SENATE

                                    January 26, 2021
                                       ___________

        Introduced  by  Sens. RAMOS, BIAGGI, BRISPORT, GIANARIS, HARCKHAM, HOYL-
          MAN, JACKSON, MAY, MYRIE, RIVERA, SALAZAR, SEPULVEDA -- read twice and
          ordered printed, and when printed to be committed to the Committee  on
          Alcoholism  and Substance Abuse -- 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
    15  defined in article one hundred seventy-nine, two hundred twenty  or  two
    16  hundred twenty-two of the penal law, auto stripping in the second degree
    17  as  defined  in  section  165.10 of the penal law, auto stripping in the
    18  first degree as defined in section 165.11 of  the  penal  law,  identity
    19  theft  in  the  second  degree as defined in section 190.79 of the penal

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06635-06-1
        S. 2881--B                          2

     1  law, identity theft in the first degree as defined in section 190.80  of
     2  the  penal law, or any other specified offense as defined in subdivision
     3  five of section 410.91 of this chapter, provided, however,  a  defendant
     4  is  not an "eligible defendant" if he or she:], misdemeanor complaint or
     5  felony complaint with any offense and has a functional impairment.
     6    § 3. The opening paragraph of subdivision 1 of section 216.00  of  the
     7  criminal  procedure  law,  as amended by section 2 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 two hundred twenty or two hundred  twenty-
    12  two  of  the penal law, an offense defined in sections 105.10 and 105.13
    13  of the penal law provided that the underlying crime for  the  conspiracy
    14  charge  is  a  class  B, C, D or E felony offense defined in article two
    15  hundred twenty or two hundred twenty-two of the penal law,  auto  strip-
    16  ping in the second degree as defined in section 165.10 of the penal law,
    17  auto  stripping  in the first degree as defined in section 165.11 of the
    18  penal law, identity theft in the second degree  as  defined  in  section
    19  190.79  of  the penal law, identity theft in the first degree as defined
    20  in section 190.80 of the penal law, or any other  specified  offense  as
    21  defined in subdivision five of section 410.91 of this chapter, provided,
    22  however,  a  defendant  is  not  an "eligible defendant" if he or she:],
    23  misdemeanor complaint or felony complaint with any  offense  and  has  a
    24  functional impairment.
    25    § 4. Paragraphs (a) and (b) and the closing paragraph of subdivision 1
    26  of section 216.00 of the criminal procedure law are REPEALED.
    27    § 5. Subdivision 2 of section 216.00 of the criminal procedure law, as
    28  amended  by  chapter  435  of the laws of 2021, is amended and three new
    29  subdivisions 3, 5 and 6 are added to read as follows:
    30    2. ["Alcohol and substance use evaluation"] "Participant"   means   an
    31  eligible defendant who has been admitted into the treatment court.
    32    3. "Functional impairment" means a condition that impairs the eligible
    33  defendant's functioning. A functional impairment may include, but is not
    34  limited  to,  substance  abuse  or  alcohol  dependence, mental illness,
    35  developmental disability, intellectual disability, traumatic brain inju-
    36  ry   or  other  neurological  disease,  personality  disorder, cognitive
    37  dysfunction,  dementia,  emotional  disturbance or any other disability.
    38  The court shall defer to licensed  health  care  professionals  and  the
    39  broader  medical  community consensus in determining whether a person is
    40  disabled or functionally impaired. A person may have more than one func-
    41  tional impairment.
    42    4.  "Clinical  evaluation"  means a written assessment and report by a
    43  [court-approved entity or] licensed [health  care  professional  experi-
    44  enced in the treatment of alcohol and substance use disorder, or] clini-
    45  cian qualified  to  identify functional impairments as defined in subdi-
    46  vision  three of this section or an evaluation conducted by an addiction
    47  and substance [abuse] use disorder counselor credentialed by the  office
    48  of  addiction  services  and  supports  pursuant to section 19.07 of the
    49  mental hygiene law, which shall include:
    50    (a) an evaluation as to whether the defendant currently has [a history
    51  of alcohol or substance use disorder] one or more functional impairments
    52  that may include but not be limited to a mental disorder, as [such terms
    53  are] defined in the most recent edition of the  diagnostic  and  statis-
    54  tical  manual  of  mental  disorders, [fifth edition, and a co-occurring
    55  mental disorder or mental illness and the relationship between such  use
    56  and mental disorder or mental illness,] if any;
        S. 2881--B                          3

     1    (b)  a  recommendation  as  to  whether  the  defendant's  [alcohol or
     2  substance use] functional impairments,  if  any,  could  be  effectively
     3  addressed by judicial diversion in accordance with this article;
     4    (c)  a  recommendation as to the treatment modality, level of care and
     5  length of any proposed treatment to effectively address the  defendant's
     6  [alcohol  or  substance  use  and  any  co-occurring  mental disorder or
     7  illness] functional impairments in accordance with federal law requiring
     8  the most integrated setting appropriate to the needs of individuals with
     9  disabilities; and
    10    (d) any other information,  factor,  circumstance,  or  recommendation
    11  deemed relevant by the assessing entity or specifically requested by the
    12  court.
    13    5.  "Treatment" means one or more evidence-based interventions includ-
    14  ing, but not limited  to,  counseling,  psychotherapy,  pharmacotherapy,
    15  psychiatric medication, health promotion, and overdose prevention educa-
    16  tion.  For  substance  use  disorders,  treatment  includes any clinical
    17  service or intervention that assists individuals to achieve recovery  in
    18  the form of: (a) abstinence from all or certain psychoactive substances;
    19  (b)  a  change  or  reduction in use; or (c) improved well-being, social
    20  stability and the alleviation of associated harms.
    21    6. "Treatment provider" means a person or  organization  qualified  to
    22  provide  interventions responsive to the needs identified by the partic-
    23  ipant and clinician during the clinical evaluation.
    24    § 6. Section 216.05 of the criminal procedure law, as amended by chap-
    25  ter 435 of the laws of 2021, is amended to read as follows:
    26  § 216.05 Judicial diversion program; court procedures.
    27    1. At any time after the local criminal court arraignment of an eligi-
    28  ble defendant, but prior to the  entry  of  a  plea  of  guilty  or  the
    29  commencement  of trial, the court at the request of the eligible defend-
    30  ant, [may] shall order [an alcohol and substance use] a clinical  evalu-
    31  ation  for all known functional impairments. Such evaluations shall take
    32  place without undue delay.
    33    (a) The possibility of being evaluated shall not be  contingent  on  a
    34  waiver  of  any other sections of this chapter except subdivision one of
    35  section 30.30 of this chapter.
    36    (b) An eligible defendant may decline to [participate in] undergo such
    37  an evaluation at any time.
    38    (c) The defendant shall provide a written authorization, in compliance
    39  with the requirements of any applicable state or federal laws, rules  or
    40  regulations  authorizing  disclosure of the results of the assessment to
    41  the defendant's attorney, the prosecutor, the  local  probation  depart-
    42  ment, the court, authorized court personnel and other individuals speci-
    43  fied  in  such authorization for the sole purpose of determining whether
    44  the defendant should be offered judicial  diversion  for  treatment  for
    45  [substance  use,  alcohol  use  and  any co-occurring mental disorder or
    46  mental illness] a functional impairment.
    47    (d) No statement or other disclosure, written or otherwise, made by  a
    48  defendant  to  a  professional completing the clinical evaluation may be
    49  used by the prosecution to prove any crime or  offense  alleged  in  the
    50  pending case. All such statements shall be used only for the purposes of
    51  making recommendations as defined in subdivision two of this section and
    52  shall otherwise remain confidential.
    53    2.  Upon receipt of the completed [alcohol and substance use] clinical
    54  evaluation report, the court shall provide a copy of the report  to  the
    55  eligible defendant and the [prosecutor] defendant's counsel.
        S. 2881--B                          4

     1    3.  (a)  Upon [receipt] review of the evaluation report [either party]
     2  the defendant may request a hearing on the issue of whether the  [eligi-
     3  ble]  defendant  is an eligible defendant and should be offered [alcohol
     4  or substance use] treatment pursuant to this article.  At the time  that
     5  the  defendant  requests  a  hearing,  the  defendant  shall turn over a
     6  complete copy of the evaluation report to the prosecutor and the  court.
     7  At  such  a proceeding, which shall be held as soon as practicable so as
     8  to facilitate early intervention  in  the  event  that  the  [defendant]
     9  participant  is  found to need [alcohol or substance use] treatment, the
    10  court may consider oral and written arguments, [may] take testimony from
    11  witnesses offered by either  party,  and  [may]  consider  any  relevant
    12  evidence [including, but not limited to, evidence that:
    13    (i)  the  defendant  had within the preceding ten years (excluding any
    14  time during which the offender was incarcerated for any  reason  between
    15  the  time of the acts that led to the youthful offender adjudication and
    16  the time of commission of the present offense) been adjudicated a youth-
    17  ful offender for: (A) a violent felony offense  as  defined  in  section
    18  70.02 of the penal law; or (B) any offense for which a merit time allow-
    19  ance  is not available pursuant to subparagraph (ii) of paragraph (d) of
    20  subdivision one of section eight hundred three of  the  correction  law;
    21  and
    22    (ii)  in  the  case of a felony offense defined in subdivision five of
    23  section 410.91 of this chapter, or section  165.10,  165.11,  190.79  or
    24  190.80 of the penal law, any statement of or submitted by the victim, as
    25  defined  in  paragraph  (a) of subdivision two of section 380.50 of this
    26  chapter] except sealed cases defined in section 160.50 of this chapter.
    27    (b) Upon completion of such a proceeding, the court shall consider and
    28  make findings of fact with respect to whether:
    29    (i) the defendant is an eligible defendant as defined  in  subdivision
    30  one of section 216.00 of this article;
    31    (ii) [the defendant has a history of alcohol or substance use;
    32    (iii)  such  alcohol  or  substance  use]  the  defendant's functional
    33  impairment is likely a contributing factor to [the defendant's  criminal
    34  behavior]  their  current  or  future  involvement in the criminal legal
    35  system;
    36    [(iv)] (iii) the defendant's participation in judicial diversion could
    37  effectively address such [use] functional impairment; and
    38    [(v) institutional confinement of the  defendant  is  or  may  not  be
    39  necessary  for the protection of the public] (iv) the defendant's access
    40  to treatment through this article  would  benefit  the  public  and  the
    41  defendant.
    42    (c) Where there has been a finding in the clinical evaluation that the
    43  defendant  has  a mental disorder, as defined in the most recent edition
    44  of the diagnostic and statistical manual of mental disorders, or a clin-
    45  ical diagnosis of another serious functional impairment there shall be a
    46  presumption that the defendant is an eligible defendant.
    47    4. (a) When an authorized court determines, pursuant to paragraph  (b)
    48  of  subdivision three of this section, that an eligible defendant should
    49  be offered [alcohol or substance use] treatment, or when the parties and
    50  the court agree to [an eligible defendant's participation in alcohol  or
    51  substance  use]  treatment, an eligible defendant [may] shall be allowed
    52  to participate in the judicial diversion program offered by  this  arti-
    53  cle.    [Prior  to the court's issuing an order granting judicial diver-
    54  sion, the eligible defendant shall be required to enter a plea of guilty
    55  to the charge or charges; provided, however, that no  such  guilty  plea
    56  shall be required when:
        S. 2881--B                          5

     1    (a)  the  people  and  the court consent to the entry of such an order
     2  without a plea of guilty; or
     3    (b)  based on a finding of exceptional circumstances, the court deter-
     4  mines that a plea of guilty shall not be required. For purposes of  this
     5  subdivision,  exceptional  circumstances  exist  when, regardless of the
     6  ultimate disposition of the case, the entry of a plea of guilty is like-
     7  ly to result in severe collateral consequences.]
     8    (b) Eligible defendants shall not be required  to  submit  a  plea  of
     9  guilty to participate in judicial diversion.
    10    (c) Prior participation in treatment or court-mandated treatment shall
    11  not preclude future treatment participation.
    12    (d)  Eligible defendants shall not be precluded from diversion because
    13  of a lack of resources in the community.
    14    (e) An eligible  defendant  shall  not  be  precluded  from  diversion
    15  because of their gender identity.
    16    (f)  There  shall be a presumption that participants shall be afforded
    17  the opportunity to remain at liberty while awaiting clinical  evaluation
    18  or treatment placement.
    19    5. The [defendant] participant shall agree on the record or in writing
    20  to  abide  by the [release] judicial diversion program conditions set by
    21  the court, which[,] shall include[:] participation in a specified period
    22  of [alcohol or substance  use]  treatment  at  a  specified  program  or
    23  programs  [identified by the court, which may include periods of detoxi-
    24  fication,]. In setting the program conditions, the court shall  consider
    25  the  participant's  assessment and treatment plan, as agreed upon by the
    26  participant and treatment provider, in addition to the  clinical  evalu-
    27  ation. The court shall not consider the nature of a participant's charg-
    28  es. Judicial diversion program conditions may include:
    29    (a)  limited  or  intensive  outpatient treatment in which the partic-
    30  ipant, regardless of whether they have permanent  housing  or  not,  may
    31  reside in the community;
    32    (b)  limited periods of detoxification or inpatient rehabilitation for
    33  participants with substance use disorders,  except  that  detoxification
    34  shall  not  be  used  as  a  sanction  and  detoxification shall only be
    35  required  as  preparation  for  a  treatment  admission  or   medication
    36  induction;
    37    (c)  residential  [or  outpatient]  treatment[,  or both]. If ordering
    38  residential treatment, placement shall be in the most integrated setting
    39  appropriate for the participant's needs to avoid discrimination  on  the
    40  basis of disability, in accordance with federal law, as determined after
    41  taking  into  account  the  views  of  the  health care professional who
    42  conducted the mental health assessment  or  alcohol  and  substance  use
    43  evaluation  and  any health care professionals responsible for providing
    44  such treatment or monitoring the defendant's progress in such treatment;
    45  [and may include: (i)]
    46    (d) periodic court appearances, which may [include  periodic  urinaly-
    47  sis;  (ii)]  be  an  electronic appearance pursuant to section 182.20 of
    48  this part upon consent of the participant. The court shall consider  the
    49  participant's  service  engagement  and  treatment needs when scheduling
    50  periodic court appearances  and  shall  attempt  to  minimize  treatment
    51  disruption;
    52    (e)  periodic drug screening as needed, when recommended by the treat-
    53  ment provider as part of a participant's treatment plan. Drug  screening
    54  methods  shall  only  include oral swabs, sweat patches, or non-observed
    55  urinalysis;
    56    (f) other treatment as recommended by the treatment provider; and
        S. 2881--B                          6

     1    (g) a requirement that the [defendant] participant refrain from engag-
     2  ing in criminal behaviors[; (iii) if the defendant needs  treatment  for
     3  opioid use, that he or she].
     4    5-a. The court shall not require a participant to consent to share, or
     5  authorize  the treatment provider to share, protected health information
     6  in accordance with the Health Insurance Portability  and  Accountability
     7  Act  Privacy Rule (45 CFR Parts 160 and 164), with the court. Exceptions
     8  include:
     9    (a) record of attendance and relevant barriers to attendance;
    10    (b) treatment plan and any recommended  changes  to  the  plan  during
    11  participation in judicial diversion; and
    12    (c) drug toxicology results, when part of the treatment plan.
    13    5-b. If the participant has a condition requiring prescription medica-
    14  tion,  or  has another condition requiring prescription medication, they
    15  may participate in and  receive  medically  prescribed  drug  treatments
    16  under the care of a health care professional licensed or certified under
    17  title  eight of the education law, acting within his or her lawful scope
    18  of practice[, provided that no].
    19    (a) No court shall require the use of any specified type or  brand  of
    20  drug during the course of medically prescribed [drug] treatments.
    21    (b)  No  court shall penalize or sanction a participant for periods of
    22  voluntary hospitalization, respite care, or other  forms  of  supportive
    23  care.
    24    5-c.  Treatment  providers  shall collaborate with the participant and
    25  clinical court staff to create a discharge plan prior to  completion  of
    26  diversion  to  incorporate peer support, housing and employment support,
    27  and how to access other community-based health services.  If  a  partic-
    28  ipant  finishes  their  inpatient  or  outpatient treatment course, they
    29  shall be considered to have successfully completed their  obligation  to
    30  the  court,  regardless  of  their  ability to secure permanent housing,
    31  employment, or other personal goals identified by the participant.
    32    6. Upon [an eligible defendant's] a participant's agreement  to  abide
    33  by  the  conditions  set  by the court, the court shall issue a securing
    34  order providing for bail or release on the  [defendant's]  participant's
    35  own  recognizance  and  conditioning  any  release  upon the agreed upon
    36  conditions pursuant to article five hundred ten  of  this  chapter.  The
    37  period  of [alcohol or substance use] treatment shall begin as specified
    38  by the court and as soon as practicable after the [defendant's]  partic-
    39  ipant's  release,  taking into account the availability of treatment, so
    40  as to facilitate early intervention with  respect  to  the  [defendant's
    41  substance  use or condition] participant's functional impairment and the
    42  effectiveness of the treatment program. In the event  that  a  treatment
    43  program  is  not immediately available or becomes unavailable during the
    44  course of the [defendant's participation] participant's  involvement  in
    45  the  judicial  diversion  program, the court may release the [defendant]
    46  participant pursuant to the securing order.
    47    7. When participating in judicial diversion treatment pursuant to this
    48  article, any resident of this state  who  is  covered  under  a  private
    49  health  insurance  policy  or contract issued for delivery in this state
    50  pursuant to article thirty-two, forty-three or forty-seven of the insur-
    51  ance law or article forty-four of the  public  health  law,  or  who  is
    52  covered  by a self-funded plan which provides coverage for the diagnosis
    53  and treatment of [chemical abuse  and  chemical  dependence]  functional
    54  impairment  however  defined in such policy; shall first seek reimburse-
    55  ment for such treatment in accordance with the provisions of such policy
    56  or contract. The court in its discretion may order  the  participant  to
        S. 2881--B                          7

     1  obtain public insurance such as Medicaid or Medicare if they so qualify.
     2  However,  the  participant  shall not be required to pay for any part of
     3  the cost of treatment required by the  court  that  is  not  covered  by
     4  private or public health insurance.
     5    8.  (a)  During  the  period  of a [defendant's participation] partic-
     6  ipant's involvement in the judicial  diversion  program,  the  treatment
     7  court   shall   retain  jurisdiction  of  the  [defendant]  participant,
     8  provided, however, that the court [may]  shall  allow  such  [defendant]
     9  participant  to  (i)  reside  in  another jurisdiction, [or] and/or (ii)
    10  participate in [alcohol and substance use] treatment and other  programs
    11  in  the  jurisdiction where the defendant resides or in any other juris-
    12  diction, while participating  in  a  judicial  diversion  program  under
    13  conditions  set  by the court and agreed to by the defendant pursuant to
    14  subdivisions five and six of this section.  The court may  transfer  the
    15  participant's  case  to  the  judicial  diversion court in the county in
    16  which the participant resides pursuant to subdivision  five  of  section
    17  170.15 of this part, subdivision four of section 180.20 of this part, or
    18  section 230.21 of this part to ensure continuity of treatment.
    19    (b)  The  court  may  require the [defendant] participant to appear in
    20  court or remotely at any  time  to  enable  the  court  to  monitor  the
    21  [defendant's]  progress  in  [alcohol  or  substance use] treatment. The
    22  court shall provide notice, reasonable under the circumstances,  to  the
    23  people,  the  treatment  provider,  the  [defendant] participant and the
    24  [defendant's] participant's counsel  whenever  it  orders  or  otherwise
    25  requires the appearance of the [defendant] participant in court. Failure
    26  to appear as required without reasonable cause therefor shall constitute
    27  a violation of the conditions of the court's agreement with the [defend-
    28  ant] participant.
    29    9.  (a)  If at any time during the [defendant's participation] partic-
    30  ipant's engagement in the judicial  diversion  program,  the  court  has
    31  reasonable  grounds  to  believe  that  the  [defendant] participant has
    32  violated a [release] program condition in an important  respect  or  has
    33  willfully  failed  to  appear  before  the court as requested, the court
    34  except as provided in subdivision two of section 510.50 of this  chapter
    35  regarding  a failure to appear, shall direct the [defendant] participant
    36  to appear [or issue a bench warrant to a police officer or an  appropri-
    37  ate peace officer directing him or her to take the defendant into custo-
    38  dy  and  bring the defendant before the court without unnecessary delay;
    39  provided, however, that under no circumstances  shall  a  defendant  who
    40  requires  treatment  for opioid use be deemed to have violated a release
    41  condition on  the  basis  of  his  or  her  participation  in  medically
    42  prescribed  drug treatments under the care of a health care professional
    43  licensed or certified under title eight of  the  education  law,  acting
    44  within  his  or  her  lawful  scope  of  practice]  for a hearing on the
    45  violation pursuant to paragraph (b) of this subdivision  with  at  least
    46  forty-eight  hours  notice to the participant or the participant's coun-
    47  sel, unless notice is waived by the participant.    The  court  may  not
    48  modify the participant's securing order until such time as the hearing's
    49  conclusion.  The  relevant  provisions of section 530.60 of this chapter
    50  relating to issuance of securing orders shall apply to such  proceedings
    51  under  this  subdivision.    There is a presumption that a bench warrant
    52  shall not be issued for participants in judicial diversion.
    53    (b) In determining whether a [defendant] participant violated a condi-
    54  tion of [his or her release under] the  judicial  diversion  program  or
    55  willfully  failed  to  appear  in court, the court [may] shall conduct a
    56  [summary] hearing consistent with due process [and sufficient] to satis-
        S. 2881--B                          8

     1  fy the court that the [defendant] participant has, in fact, violated the
     2  condition or willfully failed to appear.
     3    (i)  The  court shall provide reasonable notice to the participant and
     4  the participant's counsel, but in no circumstance less than  forty-eight
     5  hours notice, unless notice is waived by the participant.
     6    (ii) The people shall bear the burden of proving by clear and convinc-
     7  ing  evidence that the participant has violated a condition of the judi-
     8  cial diversion program in an  important  respect.  The  participant  may
     9  cross-examine witnesses and may present relevant, admissible evidence on
    10  their  own  behalf. The court shall consider all factors relating to the
    11  participant's current mental health or cognitive status,  their  engage-
    12  ment  with  judicial  diversion prior to this time, as well as any other
    13  factors that may have impacted their participation or alleged violation.
    14    (iii) A bench warrant shall not be issued  absent  a  finding  by  the
    15  court  that  the  alleged violation or failure to appear was willful. In
    16  determining willfulness, the court shall consider: the nexus between the
    17  participant's violation  or  failure  to  appear  and  their  functional
    18  impairment; whether an appropriate treatment plan is currently in place;
    19  the  participant's  history  of  making court appearances in the instant
    20  matter; and a history of positive engagement with treatment staff or the
    21  court.
    22    (iv) Under no circumstances shall a participant who requires treatment
    23  for a functional impairment be deemed to have violated a program  condi-
    24  tion  on the participation in medically prescribed drug treatments under
    25  the care of a health care professional licensed or certified under title
    26  eight of the education law, acting within his or  her  lawful  scope  of
    27  practice.
    28    (v)  If the court finds a reasonable explanation or mitigation for any
    29  alleged violation or alleged willful failure  to  appear,  the  securing
    30  order shall not be modified.
    31    (vi)  The court may seal portions of the proceeding related to collat-
    32  eral consequences at the request of the  participant  and  participant's
    33  counsel.
    34    (c)  If the court determines by clear and convincing evidence that the
    35  [defendant] participant has violated a condition of his or  her  release
    36  under  the  judicial diversion program, the court may permit the partic-
    37  ipant to continue their treatment mandate as previously ordered;  modify
    38  the  [conditions  thereof,  reconsider the order of recognizance or bail
    39  pursuant to subdivision two of section 510.30 of this  chapter,]  treat-
    40  ment  plan per the recommendation of the treatment provider; hold treat-
    41  ment in abeyance until the underlying matter that caused  the  violation
    42  is  resolved; or terminate the [defendant's] participant's participation
    43  in the judicial diversion program[; and when applicable proceed with the
    44  defendant's sentencing in accordance with the agreement. Notwithstanding
    45  any provision of law to the contrary, the court may impose any  sentence
    46  authorized  for  the  crime  of  conviction  in accordance with the plea
    47  agreement, or any lesser sentence authorized to be imposed on  a  felony
    48  drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
    49  section 70.70 of the penal law taking into account] if no  other  treat-
    50  ment option is available.  The court shall consider:
    51    (i)  the  length of time the [defendant] participant spent in residen-
    52  tial treatment and how best to continue treatment [while  the  defendant
    53  is  serving  that  sentence.  In  determining  what action to take for a
    54  violation of a release condition, the court shall consider];
    55    (ii) all relevant circumstances, including the views of  the  prosecu-
    56  tor, the defense and the [alcohol or substance use] participant's inter-
        S. 2881--B                          9

     1  est  in  continuing treatment [provider, and the extent to which persons
     2  who ultimately successfully complete a drug treatment regimen sometimes]
     3  or the program; and
     4    (iii) the role of relapse [by not abstaining from alcohol or substance
     5  use  or  by  failing  to comply fully with all requirements imposed by a
     6  treatment program] in recovery and treatment.
     7    (d) The court shall [also consider using] use a  system  of  graduated
     8  and  appropriate responses [or sanctions] designed to address such inap-
     9  propriate behaviors[,  protect  public  safety]  and  facilitate,  where
    10  possible, successful completion of the [alcohol or substance use] treat-
    11  ment program.
    12    [(d)]  (e) Nothing in this subdivision shall be construed [as prevent-
    13  ing a court from terminating a defendant's participation in the judicial
    14  diversion program for violating a release condition when such  a  termi-
    15  nation  is  necessary  to  preserve public safety. Nor shall anything in
    16  this subdivision be  construed]  as  precluding  the  prosecution  of  a
    17  [defendant]  participant for the commission of a different offense while
    18  participating in the judicial diversion program. Prior  to  such  termi-
    19  nation,  the  participant  shall be entitled to a hearing at which clear
    20  and convincing evidence shall be offered to support that there exists  a
    21  substantial  risk  to  an  identifiable person. In the absence of such a
    22  hearing and such a finding, there can be no termination.
    23    [(e)] (f) A [defendant] participant may at any time advise  the  court
    24  that  [he  or  she  wishes]  they wish to terminate participation in the
    25  judicial diversion program, at which time the court shall [proceed  with
    26  the case and, where applicable, shall impose sentence in accordance with
    27  the  plea agreement. Notwithstanding any provision of law to the contra-
    28  ry, the court may impose  any  sentence  authorized  for  the  crime  of
    29  conviction in accordance with the plea agreement, or any lesser sentence
    30  authorized to be imposed on a felony drug offender pursuant to paragraph
    31  (b)  or  (c) of subdivision two of section 70.70 of the penal law taking
    32  into account the length of  time  the  defendant  spent  in  residential
    33  treatment  and  how  best  to  continue treatment while the defendant is
    34  serving that sentence] transfer the case back to the  appropriate  trial
    35  part.
    36    10.  Upon  the  court's determination that the [defendant] participant
    37  has successfully completed the required period of [alcohol or  substance
    38  use]  treatment  and has otherwise satisfied the conditions required for
    39  successful completion of the judicial diversion program, the court shall
    40  [comply with the terms and conditions it set for final disposition  when
    41  it  accepted  the  defendant's  agreement to participate in the judicial
    42  diversion program. Such disposition may include, but is not limited  to:
    43  (a)  requiring  the  defendant  to undergo a period of interim probation
    44  supervision and, upon  the  defendant's  successful  completion  of  the
    45  interim probation supervision term, notwithstanding the provision of any
    46  other  law,  permitting the defendant to withdraw his or her guilty plea
    47  and dismissing the indictment; or (b) requiring the defendant to undergo
    48  a  period  of  interim  probation  supervision  and,   upon   successful
    49  completion  of  the  interim probation supervision term, notwithstanding
    50  the provision of any other law, permitting the defendant to withdraw his
    51  or her guilty plea, enter a guilty plea to  a  misdemeanor  offense  and
    52  sentencing  the  defendant  as promised in the plea agreement, which may
    53  include a period of probation supervision pursuant to section  65.00  of
    54  the  penal  law;  or  (c)  allowing the defendant to withdraw his or her
    55  guilty plea and dismissing] dismiss the  indictment  or  superior  court
    56  information,   felony  complaint,  misdemeanor  complaint,  information,
        S. 2881--B                         10

     1  simplified information, or prosecutor's information and  seal  the  case
     2  pursuant to section 160.50 of this chapter.
     3    11.  Nothing  in  this  article  shall  be construed as restricting or
     4  prohibiting courts or district attorneys from using other lawful  proce-
     5  dures  or  models  for  placing  appropriate  persons  into  [alcohol or
     6  substance use] treatment.
     7    § 7. The criminal procedure law is amended by  adding  a  new  section
     8  216.10 to read as follows:
     9  § 216.10 Diversion part established.
    10    1.  The chief administrator of the courts is hereby directed to estab-
    11  lish, in each county of the state, a part of the court to  be  known  as
    12  the  diversion  part for the county in which such court presides. To aid
    13  in their work, such judges and diversion court personnel  shall  receive
    14  annual  training  in  specialized  areas,  including, but not limited to
    15  disability, mental illness, and substance use disorder needs,  including
    16  co-occurring  disorders,  evidence  based practices, and trauma-informed
    17  care, as well as training in procedural justice and cultural  competency
    18  and  medicaid  or  medicare  eligibility. The chief administrator of the
    19  courts shall ensure that all employees who  staff  the  diversion  parts
    20  receive  specialized  training  in  procedural  justice and working with
    21  people with complex needs.
    22    2. Each chief administrator of the courts shall at  the  end  of  each
    23  year  prepare and file an annual report, which the office shall compile,
    24  publish on its website and make available upon request to members of the
    25  public. Such reports shall not include any personal identifying informa-
    26  tion for any individual participants. Each such report, in  addition  to
    27  other relevant information, shall set forth, disaggregated by each coun-
    28  ty served:
    29    (a)  the  number  of participants with cases in the diversion part for
    30  each of the following  categories,  broken  down  by  gender,  race  and
    31  ethnicity:
    32    (i) the number of people who make an application for evaluation;
    33    (ii)  the  number  of people who are accepted into judicial diversion;
    34  and
    35    (iii) the number of people who successfully complete the program;
    36    (b) the length of time, in months, each case remained in the diversion
    37  part prior to acquittal, dismissal, release on recognizance,  revocation
    38  of release on conditions, and sentencing;
    39    (c)  the  demographic  makeup  of  participants in the diversion part,
    40  broken down by race, ethnicity, age and sex of participants;
    41    (d) the crimes with which each participant was charged;
    42    (e) whether the treatment  obtained  was  for  substance  use,  mental
    43  health, co-occurring or other;
    44    (f)  the court disposition in each supervised case, including sentenc-
    45  ing information;
    46    (g) the costs saved to the county by avoiding pre-trial  or  post-con-
    47  viction detention in a county jail or state prison; and
    48    (h)  a  list of service providers, including contact information, that
    49  the diversion part in the superior court of the county partners with  to
    50  serve participants.
    51    § 8. Subdivision 5 of section 170.15 of the criminal procedure law, as
    52  amended  by  chapter  91  of  the  laws  of  2021, is amended to read as
    53  follows:
    54    5. [(a)] Notwithstanding any provision of this section to the  contra-
    55  ry,  in any county [outside a city having a population of one million or
    56  more], upon or after arraignment of a defendant  on  an  information,  a
        S. 2881--B                         11

     1  simplified  information,  a  prosecutor's  information  or a misdemeanor
     2  complaint pending in a local criminal court,  such  court  [may]  shall,
     3  upon  motion of the defendant [and after giving the district attorney an
     4  opportunity  to  be  heard],  order  that the action be removed from the
     5  court in which the matter is pending to another local criminal court  in
     6  the  same  county,  or  [with  consent  of the district attorney and the
     7  district attorney of the adjoining county] to another court in [such] an
     8  adjoining county, or to a court in the county  in  which  the  defendant
     9  resides  that  has  been designated as a judicial diversion, human traf-
    10  ficking [court], or veterans treatment court by the chief  administrator
    11  of  the  courts, and such judicial diversion, human trafficking [court],
    12  or veterans treatment court [may] shall  then  conduct  such  action  to
    13  judgment or other final deposition; provided, however, that no court may
    14  order removal pursuant to this subdivision to a veterans treatment court
    15  of  a  family  offense  charge  described  in subdivision one of section
    16  530.11 of this chapter where the accused and the person  alleged  to  be
    17  the  victim  of  such  offense charged are members of the same family or
    18  household as defined in such subdivision  one  of  section  530.11;  and
    19  provided  further that an order of removal issued under this subdivision
    20  shall not take effect until five days after the date the order is issued
    21  [unless, prior to such effective date, the human  trafficking  court  or
    22  veterans treatment court notifies the court that issued the order that:
    23    i.  it  will not accept the action, in which event the order shall not
    24  take effect; or
    25    ii. 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    (b)  Upon  providing  notification pursuant to subparagraph i or ii of
    28  paragraph (a) of this subdivision, the human trafficking court or veter-
    29  ans treatment court shall promptly give notice to the defendant, his  or
    30  her counsel, and the district attorney].
    31    § 9. Subdivision 4 of section 180.20 of the criminal procedure law, as
    32  amended  by  chapter  91  of  the  laws  of  2021, is amended to read as
    33  follows:
    34    4. [(a)] Notwithstanding any provision of this section to the  contra-
    35  ry,  [in any county outside a city having a population of one million or
    36  more,] upon or after arraignment of a defendant on  a  felony  complaint
    37  pending in a local criminal court having preliminary jurisdiction there-
    38  of,  such  court  [may]  shall,  upon motion of the defendant [and after
    39  giving the district attorney an opportunity to be heard], order that the
    40  action be removed from the court in  which  the  matter  is  pending  to
    41  another local criminal court in the same county, or [with consent of the
    42  district  attorney and the district attorney of the adjoining county] to
    43  another court in such adjoining county, or to a court in the  county  in
    44  which  the  defendant  resides,  that  has been designated as a judicial
    45  diversion, human trafficking [court], or veterans treatment court by the
    46  chief administrator of the courts, and such  judicial  diversion,  human
    47  trafficking  [court],  or veterans treatment court may then conduct such
    48  action to judgment or other final disposition; provided,  however,  that
    49  no  court  may  order removal pursuant to this subdivision to a veterans
    50  treatment court of a family offense charge described in subdivision  one
    51  of  section  530.11  of  this  chapter  where the accused and the person
    52  alleged to be the victim of such offense charged are members of the same
    53  family or household as  defined  in  such  subdivision  one  of  section
    54  530.11;  and  provided  further  an  order  of removal issued under this
    55  subdivision shall not take effect until five days  after  the  date  the
    56  order  is  issued [unless, prior to such effective date, the human traf-
        S. 2881--B                         12

     1  ficking court or veterans treatment court notifies the court that issued
     2  the order that:
     3    i.  it  will not accept the action, in which event the order shall not
     4  take effect; or
     5    ii. it will accept the action on a date prior to such effective  date,
     6  in which event the order shall take effect upon such prior date.
     7    (b)  Upon  providing  notification pursuant to subparagraph i or ii of
     8  paragraph (a) of this subdivision, the human trafficking court or veter-
     9  ans treatment court shall promptly give notice to the defendant, his  or
    10  her counsel and the district attorney].
    11    §  10. Section 230.21 of the criminal procedure law, as added by chap-
    12  ter 91 of the laws of 2021, is amended to read as follows:
    13  § 230.21 Removal of action to certain courts in an adjoining  county  or
    14             county in which the defendant resides.
    15    1. In any county [outside a city having a population of one million or
    16  more],  [the]  upon or after arraignment of a defendant on an indictment
    17  pending in a superior court  having  jurisdiction  thereof,  such  court
    18  [may]  shall,  upon  motion  of  the  defendant [and with consent of the
    19  district attorney and the district attorney of the adjoining county that
    20  has a superior court designated a human trafficking  court  or  veterans
    21  treatment  court  by  the chief administrator of the courts], order that
    22  the indictment and action be removed from the court in which the  matter
    23  is  pending  to [such] a superior court in an adjoining county or in the
    24  county in which the defendant resides that has been designated  a  judi-
    25  cial  diversion, human trafficking [court], or veterans treatment court,
    26  whereupon such court may then conduct such action to judgment  or  other
    27  final disposition; provided, however, that no court may order removal to
    28  a  veterans  treatment  court  of  a  family offense charge described in
    29  subdivision one of section 530.11  of  this  chapter  pursuant  to  this
    30  section  where  the  accused  and the person alleged to be the victim of
    31  such offense charged are members of the  same  family  or  household  as
    32  defined  in such subdivision one of section 530.11; and provided further
    33  that an order of removal issued under this subdivision  shall  not  take
    34  effect until five days after the date the order is issued [unless, prior
    35  to  such  effective date, the human trafficking court or veterans treat-
    36  ment court notifies the court that issued the order that:
    37    (a) it will not accept the action, in which event the order shall  not
    38  take effect, or
    39    (b)  it will accept the action on a date prior to such effective date,
    40  in which event the order shall take effect upon such prior date.
    41    2. Upon providing notification pursuant to paragraph  (a)  or  (b)  of
    42  subdivision one of this section, the human trafficking court or veterans
    43  treatment  court shall promptly give notice to the defendant, his or her
    44  counsel and the district attorney of both counties].
    45    § 11. Paragraph (r) of subdivision 2 of section 212 of  the  judiciary
    46  law,  as  added  by  section 15 of part AAA of chapter 56 of the laws of
    47  2009, is amended to read as follows:
    48    (r) Ensure that cases eligible  for  judicial  diversion  pursuant  to
    49  article  two  hundred  sixteen  of  the  criminal procedure law shall be
    50  assigned to court parts in the manner provided by the chief  administra-
    51  tor and that, to the extent practicable, such cases are presided over by
    52  judges  who,  by  virtue of the structure, caseload and resources of the
    53  parts and the judges' training, are in  the  best  position  to  provide
    54  effective  supervision  over  such  cases,  such as the [drug] treatment
    55  courts. In compliance with these  provisions,  the  chief  administrator
    56  shall  [give  due  weight  to] individually assess the need for diverted
        S. 2881--B                         13

     1  defendants to make regular court appearances, and be closely  supervised
     2  by  the  court, for the duration of [drug] treatment and the pendency of
     3  the criminal charge.
     4    §  12.   This   act shall take effect on the one hundred eightieth day
     5  after it shall have become a law; provided, however that the  amendments
     6  to the opening paragraph  of  subdivision  1  of section 216.00  of  the
     7  criminal  procedure law made by section two of this act shall be subject
     8  to  the   expiration   and   reversion   of  such paragraph pursuant  to
     9  section  12 of chapter 90 of the laws of 2014,  as  amended,  when  upon
    10  such  date  the  provisions  of section three of   this   act shall take
    11  effect.