N.Y. Criminal Procedure Law § 216.00: Definitions

§ 216.00 Definitions.

The following definitions are applicable to this article:

1. * "Eligible defendant" means any person who stands charged in an

indictment or a superior court information with a class B, C, D or E

felony offense defined in article one hundred seventy-nine, two hundred

twenty or two hundred twenty-two of the penal law, an offense defined in

sections 105.10 and 105.13 of the penal law provided that the underlying

crime for the conspiracy charge is a class B, C, D or E felony offense

defined in article one hundred seventy-nine, two hundred twenty or two

hundred twenty-two of the penal law, auto stripping in the second degree

as defined in section 165.10 of the penal law, auto stripping in the

first degree as defined in section 165.11 of the penal law, identity

theft in the second degree as defined in section 190.79 of the penal

law, identity theft in the first degree as defined in section 190.80 of

the penal law, or any other specified offense as defined in subdivision

five of section 410.91 of this chapter, provided, however, a defendant

is not an "eligible defendant" if he or she:

* NB Effective until July 5, 2028

* "Eligible defendant" means any person who stands charged in an

indictment or a superior court information with a class B, C, D or E

felony offense defined in article two hundred twenty or two hundred

twenty-two of the penal law, an offense defined in sections 105.10 and

105.13 of the penal law provided that the underlying crime for the

conspiracy charge is a class B, C, D or E felony offense defined in

article two hundred twenty or two hundred twenty-two of the penal law,

auto stripping in the second degree as defined in section 165.10 of the

penal law, auto stripping in the first degree as defined in section

165.11 of the penal law, identity theft in the second degree as defined

in section 190.79 of the penal law, identity theft in the first degree

as defined in section 190.80 of the penal law, or any other specified

offense as defined in subdivision five of section 410.91 of this

chapter, provided, however, a defendant is not an "eligible defendant"

if he or she:

* NB Effective July 5, 2028

(a) within the preceding ten years, excluding any time during which

the offender was incarcerated for any reason between the time of

commission of the previous felony and the time of commission of the

present felony, has previously been convicted of: (i) a violent felony

offense as defined in section 70.02 of the penal law or (ii) any other

offense for which a merit time allowance is not available pursuant to

subparagraph (ii) of paragraph (d) of subdivision one of section eight

hundred three of the correction law, or (iii) a class A felony offense

defined in article two hundred twenty of the penal law; or

(b) has previously been adjudicated a second violent felony offender

pursuant to section 70.04 of the penal law or a persistent violent

felony offender pursuant to section 70.08 of the penal law.

A defendant who also stands charged with a violent felony offense as

defined in section 70.02 of the penal law or an offense for which merit

time allowance is not available pursuant to subparagraph (ii) of

paragraph (d) of subdivision one of section eight hundred three of the

correction law for which the court must, upon the defendant's conviction

thereof, sentence the defendant to incarceration in state prison is not

an eligible defendant while such charges are pending. A defendant who is

excluded from the judicial diversion program pursuant to this paragraph

or paragraph (a) or (b) of this subdivision may become an eligible

defendant upon the prosecutor's consent.

2. "Alcohol and substance use evaluation" means a written assessment

and report by a court-approved entity or licensed health care

professional experienced in the treatment of alcohol and substance use

disorder, or by an addiction and substance abuse counselor credentialed

by the office of addiction services and supports pursuant to section

19.07 of the mental hygiene law, which shall include:

(a) an evaluation as to whether the defendant has a history of alcohol

or substance use disorder, as such terms are defined in the diagnostic

and statistical manual of mental disorders, fifth edition, and a

co-occurring mental disorder or mental illness and the relationship

between such use and mental disorder or mental illness, if any;

(b) a recommendation as to whether the defendant's alcohol or

substance use, if any, could be effectively addressed by judicial

diversion in accordance with this article;

(c) a recommendation as to the treatment modality, level of care and

length of any proposed treatment to effectively address the defendant's

alcohol or substance use and any co-occurring mental disorder or

illness; and

(d) any other information, factor, circumstance, or recommendation

deemed relevant by the assessing entity or specifically requested by the

court.