N.Y. Criminal Procedure Law § 216.05: Judicial diversion program; court procedures

§ 216.05 Judicial diversion program; court procedures.

1. At any time after the arraignment of an eligible defendant, but

prior to the entry of a plea of guilty or the commencement of trial, the

court at the request of the eligible defendant, may order an alcohol and

substance use evaluation. An eligible defendant may decline to

participate in such an evaluation at any time. The defendant shall

provide a written authorization, in compliance with the requirements of

any applicable state or federal laws, rules or regulations authorizing

disclosure of the results of the assessment to the defendant's attorney,

the prosecutor, the local probation department, the court, authorized

court personnel and other individuals specified in such authorization

for the sole purpose of determining whether the defendant should be

offered judicial diversion for treatment for substance use, alcohol use

and any co-occurring mental disorder or mental illness.

2. Upon receipt of the completed alcohol and substance use evaluation

report, the court shall provide a copy of the report to the eligible

defendant and the prosecutor.

3. (a) Upon receipt of the evaluation report either party may request

a hearing on the issue of whether the eligible defendant should be

offered alcohol or substance use treatment pursuant to this article. At

such a proceeding, which shall be held as soon as practicable so as to

facilitate early intervention in the event that the defendant is found

to need alcohol or substance use treatment, the court may consider oral

and written arguments, may take testimony from witnesses offered by

either party, and may consider any relevant evidence including, but not

limited to, evidence that:

(i) the defendant had within the preceding ten years (excluding any

time during which the offender was incarcerated for any reason between

the time of the acts that led to the youthful offender adjudication and

the time of commission of the present offense) been adjudicated a

youthful offender for: (A) a violent felony offense as defined in

section 70.02 of the penal law; or (B) any 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; and

(ii) in the case of a felony offense defined in subdivision five of

section 410.91 of this chapter, or section 165.10, 165.11, 190.79 or

190.80 of the penal law, any statement of or submitted by the victim, as

defined in paragraph (a) of subdivision two of section 380.50 of this

chapter.

(b) Upon completion of such a proceeding, the court shall consider and

make findings of fact with respect to whether:

(i) the defendant is an eligible defendant as defined in subdivision

one of section 216.00 of this article;

(ii) the defendant has a history of alcohol or substance use;

(iii) such alcohol or substance use is a contributing factor to the

defendant's criminal behavior;

(iv) the defendant's participation in judicial diversion could

effectively address such use; and

(v) institutional confinement of the defendant is or may not be

necessary for the protection of the public.

4. When an authorized court determines, pursuant to paragraph (b) of

subdivision three of this section, that an eligible defendant should be

offered alcohol or substance use treatment, or when the parties and the

court agree to an eligible defendant's participation in alcohol or

substance use treatment, an eligible defendant may be allowed to

participate in the judicial diversion program offered by this article.

Prior to the court's issuing an order granting judicial diversion, the

eligible defendant shall be required to enter a plea of guilty to the

charge or charges; provided, however, that no such guilty plea shall be

required when:

(a) the people and the court consent to the entry of such an order

without a plea of guilty; or

(b) based on a finding of exceptional circumstances, the court

determines that a plea of guilty shall not be required. For purposes of

this subdivision, exceptional circumstances exist when, regardless of

the ultimate disposition of the case, the entry of a plea of guilty is

likely to result in severe collateral consequences.

5. The defendant shall agree on the record or in writing to abide by

the release conditions set by the court, which, shall include:

participation in a specified period of alcohol or substance use

treatment at a specified program or programs identified by the court,

which may include periods of detoxification, residential or outpatient

treatment, or both, as determined after taking into account the views of

the health care professional who conducted the alcohol and substance use

evaluation and any health care professionals responsible for providing

such treatment or monitoring the defendant's progress in such treatment;

and may include: (i) periodic court appearances, which may include

periodic urinalysis; (ii) a requirement that the defendant refrain from

engaging in criminal behaviors; (iii) if the defendant needs treatment

for opioid use, that he or she may participate in and receive medically

prescribed drug treatments under the care of a health care professional

licensed or certified under title eight of the education law, acting

within his or her lawful scope of practice, provided that no court shall

require the use of any specified type or brand of drug during the course

of medically prescribed drug treatments.

6. Upon an eligible defendant's agreement to abide by the conditions

set by the court, the court shall issue a securing order providing for

bail or release on the defendant's own recognizance and conditioning any

release upon the agreed upon conditions. The period of alcohol or

substance use treatment shall begin as specified by the court and as

soon as practicable after the defendant's release, taking into account

the availability of treatment, so as to facilitate early intervention

with respect to the defendant's substance use or condition and the

effectiveness of the treatment program. In the event that a treatment

program is not immediately available or becomes unavailable during the

course of the defendant's participation in the judicial diversion

program, the court may release the defendant pursuant to the securing

order.

7. When participating in judicial diversion treatment pursuant to this

article, any resident of this state who is covered under a private

health insurance policy or contract issued for delivery in this state

pursuant to article thirty-two, forty-three or forty-seven of the

insurance law or article forty-four of the public health law, or who is

covered by a self-funded plan which provides coverage for the diagnosis

and treatment of chemical abuse and chemical dependence however defined

in such policy; shall first seek reimbursement for such treatment in

accordance with the provisions of such policy or contract.

8. During the period of a defendant's participation in the judicial

diversion program, the court shall retain jurisdiction of the defendant,

provided, however, that the court may allow such defendant to (i) reside

in another jurisdiction, or (ii) participate in alcohol and substance

use treatment and other programs in the jurisdiction where the defendant

resides or in any other jurisdiction, while participating in a judicial

diversion program under conditions set by the court and agreed to by the

defendant pursuant to subdivisions five and six of this section. The

court may require the defendant to appear in court at any time to enable

the court to monitor the defendant's progress in alcohol or substance

use treatment. The court shall provide notice, reasonable under the

circumstances, to the people, the treatment provider, the defendant and

the defendant's counsel whenever it orders or otherwise requires the

appearance of the defendant in court. Failure to appear as required

without reasonable cause therefor shall constitute a violation of the

conditions of the court's agreement with the defendant.

9. (a) If at any time during the defendant's participation in the

judicial diversion program, the court has reasonable grounds to believe

that the defendant has violated a release condition in an important

respect or has willfully failed to appear before the court as requested,

the court except as provided in subdivision two of section 510.50 of

this chapter regarding a failure to appear, shall direct the defendant

to appear or issue a bench warrant to a police officer or an appropriate

peace officer directing him or her to take the defendant into custody

and bring the defendant before the court without unnecessary delay;

provided, however, that under no circumstances shall a defendant who

requires treatment for opioid use be deemed to have violated a release

condition on the basis of his or her participation in medically

prescribed drug treatments under the care of a health care professional

licensed or certified under title eight of the education law, acting

within his or her lawful scope of practice. The relevant provisions of

section 530.60 of this chapter relating to issuance of securing orders

shall apply to such proceedings under this subdivision.

(b) In determining whether a defendant violated a condition of his or

her release under the judicial diversion program, the court may conduct

a summary hearing consistent with due process and sufficient to satisfy

the court that the defendant has, in fact, violated the condition.

(c) If the court determines that the defendant has violated a

condition of his or her release under the judicial diversion program,

the court may modify the conditions thereof, reconsider the order of

recognizance or bail pursuant to subdivision two of section 510.30 of

this chapter, or terminate the defendant's participation in the judicial

diversion program; and when applicable proceed with the defendant's

sentencing in accordance with the agreement. Notwithstanding any

provision of law to the contrary, the court may impose any sentence

authorized for the crime of conviction in accordance with the plea

agreement, or any lesser sentence authorized to be imposed on a felony

drug offender pursuant to paragraph (b) or (c) of subdivision two of

section 70.70 of the penal law taking into account the length of time

the defendant spent in residential treatment and how best to continue

treatment while the defendant is serving that sentence. In determining

what action to take for a violation of a release condition, the court

shall consider all relevant circumstances, including the views of the

prosecutor, the defense and the alcohol or substance use treatment

provider, and the extent to which persons who ultimately successfully

complete a drug treatment regimen sometimes relapse by not abstaining

from alcohol or substance use or by failing to comply fully with all

requirements imposed by a treatment program. The court shall also

consider using a system of graduated and appropriate responses or

sanctions designed to address such inappropriate behaviors, protect

public safety and facilitate, where possible, successful completion of

the alcohol or substance use treatment program.

(d) Nothing in this subdivision shall be construed as preventing a

court from terminating a defendant's participation in the judicial

diversion program for violating a release condition when such a

termination is necessary to preserve public safety. Nor shall anything

in this subdivision be construed as precluding the prosecution of a

defendant for the commission of a different offense while participating

in the judicial diversion program.

(e) A defendant may at any time advise the court that he or she wishes

to terminate participation in the judicial diversion program, at which

time the court shall proceed with the case and, where applicable, shall

impose sentence in accordance with the plea agreement. Notwithstanding

any provision of law to the contrary, the court may impose any sentence

authorized for the crime of conviction in accordance with the plea

agreement, or any lesser sentence authorized to be imposed on a felony

drug offender pursuant to paragraph (b) or (c) of subdivision two of

section 70.70 of the penal law taking into account the length of time

the defendant spent in residential treatment and how best to continue

treatment while the defendant is serving that sentence.

10. Upon the court's determination that the defendant has successfully

completed the required period of alcohol or substance use treatment and

has otherwise satisfied the conditions required for successful

completion of the judicial diversion program, the court shall comply

with the terms and conditions it set for final disposition when it

accepted the defendant's agreement to participate in the judicial

diversion program. Such disposition may include, but is not limited to:

(a) requiring the defendant to undergo a period of interim probation

supervision and, upon the defendant's successful completion of the

interim probation supervision term, notwithstanding the provision of any

other law, permitting the defendant to withdraw his or her guilty plea

and dismissing the indictment; or (b) requiring the defendant to undergo

a period of interim probation supervision and, upon successful

completion of the interim probation supervision term, notwithstanding

the provision of any other law, permitting the defendant to withdraw his

or her guilty plea, enter a guilty plea to a misdemeanor offense and

sentencing the defendant as promised in the plea agreement, which may

include a period of probation supervision pursuant to section 65.00 of

the penal law; or (c) allowing the defendant to withdraw his or her

guilty plea and dismissing the indictment.

11. Nothing in this article shall be construed as restricting or

prohibiting courts or district attorneys from using other lawful

procedures or models for placing appropriate persons into alcohol or

substance use treatment.