A04008 Summary:

BILL NO    A04008 

SAME AS    SAME AS S01901

SPONSOR    Tenney

COSPNSR    

MLTSPNSR   

Amd S216.05, CP L; add S205.70, Pen L

Relates to the judicial diversion program for alcohol and substance abuse
offenders; requires court to consider, review and document evidence relating to
a defendant's propensity for violent conduct prior to ordering such defendant
into a judicial diversion program; establishes the crime of unauthorized
departure from a rehabilitation facility.
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A04008 Memo:

BILL NUMBER:A4008

TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to the judicial diversion program for alcohol and substance
abuse offenders; and to amend the penal law, in relation to the crime
of unauthorized departure from a rehabilitation facility

PURPOSE OR GENERAL IDEA OF BILL: To increase safety and security at
alcohol and substance abuse treatment facilities that are utilized for
judicial diversion programs.

SUMMARY OF SPECIFIC PROVISIONS:

Section 1: Amends subdivision 4 of section 216.05 of the Criminal
Procedure Law to require that when the placement of an individual in a
judicial diversion program for drug and/or substance abuse is being
considered, the court must take into consideration the propensity of
the individual to engage in future violent conduct. This section also
amends subdivisions 5 and 8 as well as paragraph (a) of subdivision 9,
of section 216.05 of the Criminal Procedure Law, to allow for
defendants, at the sole discretion of the court, to make court
appearances by video conference.

Section 2: Amends section 216.05 of the Criminal Procedure Law by
adding two new subdivisions 5-a and 12. Subdivision 5-a requires that
when an.authorized court determines that an eligible defendant should
be offered alcohol or substance abuse treatment, or when the parties
and the court agree to an eligible defendant's participation in
alcohol or substance abuse treatment, the court will transmit the
eligible defendant's arrest record and conviction statement to the
facility where the defendant is to receive treatment. Subdivision 12
requires that any facility treating a defendant in a judicial
diversion program shall notify the local police department of the
defendants placement and arrest record, and shall submit a security
plan to the division of criminal justice services a security plan
which must be updated every five years.

Section 3: Amends the Penal Law by adding a new section 205.70,
unauthorized departure from a rehabilitation faculty, a class D
felony. A person is guilty of unauthorized departure from a
rehabilitation facility when an eligible defendant leaves, departs or
escapes from the treatment facility they were assigned to as part of
the judicial diversion program pursuant to section 216.05 of the
Criminal Procedure Law without the consent of the court or written
consent of the facility management.

Section 4: Effective date.

JUSTIFICATION: This legislation would require a court to consider a
defendant's propensity for violence before assigning them to a
judicial diversion program for substance abuse and would require a
greater level of security at facilities that treat judicial diversion
defendants.

LEGISLATIVE HISTORY: 01/09/13 referred to codes 04/30/13 held for
consideration in codes 01/08/14 referred to codes


FISCAL IMPLICATIONS: Minimal to State

EFFECTIVE DATE: This act shall take effect immediately.
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A04008 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                         4008

                              2015-2016 Regular Sessions

                                 I N  A S S E M B L Y

                                   January 28, 2015
                                      ___________

       Introduced by M. of A. TENNEY -- read once and referred to the Committee
         on Codes

       AN  ACT to amend the criminal procedure law, in relation to the judicial
         diversion program for alcohol and substance abuse  offenders;  and  to
         amend  the  penal law, in relation to the crime of unauthorized depar-
         ture from a rehabilitation facility

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section 1.  Subdivisions 4, 5, 8 and paragraph (a) of subdivision 9 of
    2  section  216.05  of the criminal procedure law, as added by section 4 of
    3  part AAA of chapter 56 of the laws of 2009, subdivision 8 as amended  by
    4  chapter 347 of the laws of 2012, are amended to read as follows:
    5    4.  When an authorized court, AFTER CONSIDERING THE UNDERLYING CHARGES
    6  AND THE PROPENSITY OR LACK THEREOF FOR VIOLENT CONDUCT OF THE DEFENDANT,
    7  AND AFTER REVIEWING OR HEARING ONE OR MORE WRITTEN OR ORAL OPINIONS FROM
    8  A LICENSED PSYCHOLOGIST OR PSYCHIATRIST AS  TO  THE  PROPENSITY  OF  THE
    9  DEFENDANT  FOR FUTURE VIOLENT CONDUCT, AND AFTER MAKING AN ON-THE-RECORD
   10  DETERMINATION AS TO THE REASONS WHY, BASED ON ALL EVIDENCE,  determines,
   11  pursuant  to paragraph (b) of subdivision three of this section, that an
   12  eligible defendant should be offered alcohol or substance  abuse  treat-
   13  ment, or when the parties and the court agree to an eligible defendant's
   14  participation  in  alcohol  or  substance  abuse  treatment, an eligible
   15  defendant may be  allowed  to  participate  in  the  judicial  diversion
   16  program  offered by this article.  Prior to the court's issuing an order
   17  granting judicial diversion, the eligible defendant shall be required to
   18  enter a plea of guilty to the charge or charges; provided, however, that
   19  no such guilty plea shall be required when:
   20    (a) the people and the court consent to the entry  of  such  an  order
   21  without a plea of guilty; or
   22    (b)  based on a finding of exceptional circumstances, the court deter-
   23  mines that a plea of guilty shall not be required. For purposes of  this

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03327-01-5
       A. 4008                             2

    1  subdivision,  exceptional  circumstances  exist  when, regardless of the
    2  ultimate disposition of the case, the entry of a plea of guilty is like-
    3  ly to result in severe collateral consequences.
    4    5.  The  defendant shall agree on the record or in writing to abide by
    5  the release conditions set by the court, which, shall  include:  partic-
    6  ipation in a specified period of alcohol or substance abuse treatment at
    7  a  specified  program  or  programs  identified  by the court, which may
    8  include periods of detoxification, residential or outpatient  treatment,
    9  or both, as determined after taking into account the views of the health
   10  care  professional  who conducted the alcohol and substance abuse evalu-
   11  ation and any health care professionals responsible for  providing  such
   12  treatment  or monitoring the defendant's progress in such treatment; and
   13  may include: (i) periodic court appearances, which may include  periodic
   14  urinalysis,  PROVIDED,  HOWEVER,  THAT  DEFENDANTS  MAY  MAKE SUCH COURT
   15  APPEARANCES BY VIDEO CONFERENCE, AT THE SOLE DISCRETION  OF  THE  COURT;
   16  (ii)  a requirement that the defendant refrain from engaging in criminal
   17  behaviors.
   18    8. During the period of a defendant's participation  in  the  judicial
   19  diversion program, the court shall retain jurisdiction of the defendant,
   20  provided,  however, that the court may allow such defendant to reside in
   21  another jurisdiction while participating in a judicial diversion program
   22  under conditions set by the court and agreed to by the defendant  pursu-
   23  ant  to subdivisions five and six of this section. The court may require
   24  the defendant to appear in court at any time  to  enable  the  court  to
   25  monitor  the  defendant's  progress in alcohol or substance abuse treat-
   26  ment. The court shall  provide  notice,  reasonable  under  the  circum-
   27  stances,  to  the  people, the treatment provider, the defendant and the
   28  defendant's counsel whenever it orders or otherwise requires the appear-
   29  ance of the defendant in court. Failure to appear  as  required  without
   30  reasonable cause therefor shall constitute a violation of the conditions
   31  of  the court's agreement with the defendant.  AT THE SOLE DISCRETION OF
   32  THE COURT, ANY COURT APPEARANCE REQUIRED PURSUANT  TO  THIS  SUBDIVISION
   33  MAY BE MADE BY VIDEO CONFERENCE.
   34    (a)  If  at any time during the defendant's participation in the judi-
   35  cial diversion program, the court has reasonable grounds to believe that
   36  the defendant has violated a release condition or has failed  to  appear
   37  before  the  court as requested, the court shall direct the defendant to
   38  appear or issue a bench warrant to a police officer  or  an  appropriate
   39  peace  officer  directing  him or her to take the defendant into custody
   40  and bring the defendant before the court without unnecessary  delay.  AT
   41  THE SOLE DISCRETION OF THE COURT, ANY COURT APPEARANCE REQUIRED PURSUANT
   42  TO  THIS  SUBDIVISION MAY BE MADE BY VIDEO CONFERENCE. The provisions of
   43  subdivision one of section 530.60 of this chapter relating to revocation
   44  of recognizance or bail shall  apply  to  such  proceedings  under  this
   45  subdivision.
   46    S 2. Section 216.05 of the criminal procedure law is amended by adding
   47  two new subdivisions 5-a and 12 to read as follows:
   48    5-A. WHEN AN AUTHORIZED COURT DETERMINES, PURSUANT TO PARAGRAPH (B) OF
   49  SUBDIVISION  THREE OF THIS SECTION, THAT AN ELIGIBLE DEFENDANT SHOULD BE
   50  OFFERED ALCOHOL OR SUBSTANCE ABUSE TREATMENT, OR WHEN  THE  PARTIES  AND
   51  THE  COURT  AGREE TO AN ELIGIBLE DEFENDANT'S PARTICIPATION IN ALCOHOL OR
   52  SUBSTANCE ABUSE TREATMENT, THE COURT SHALL TRANSMIT THE ELIGIBLE DEFEND-
   53  ANT'S ARREST RECORD AND CONVICTION STATEMENT TO THE FACILITY  WHERE  THE
   54  DEFENDANT IS TO RECEIVE TREATMENT.
   55    12.  A  FACILITY WHICH IS TREATING A DEFENDANT UNDER THE PROVISIONS OF
   56  THIS SECTION SHALL NOTIFY THE LOCAL POLICE DEPARTMENT WHICH  HAS  JURIS-
       A. 4008                             3

    1  DICTION  OVER  THE  MUNICIPALITY  WHERE  THE FACILITY IS LOCATED, OF THE
    2  DEFENDANT'S PLACEMENT AND ARREST RECORD (OR IF  THERE  BE  NO  MUNICIPAL
    3  POLICE  DEPARTMENT, THEN THE SHERIFF OF THE COUNTY IN WHICH THE FACILITY
    4  IS  LOCATED),  WHICH SHALL BE PROVIDED TO FACILITY STAFF AT THE FACILITY
    5  IN A MANNER ORDERED BY THE COURT. THE FACILITY SHALL ALSO SUBMIT TO  THE
    6  DIVISION  OF  CRIMINAL  JUSTICE  SERVICES  A  SECURITY  PLAN DESIGNED TO
    7  PROVIDE FOR THE SAFETY  OF  STAFF,  RESIDENTS  AND  THE  COMMUNITY  FROM
    8  VIOLENT BEHAVIOR BY RESIDENTS. SUCH PLAN SHALL BE UPDATED AT LEAST EVERY
    9  FIVE  YEARS OR AS OTHERWISE DIRECTED BY THE COMMISSIONER OF THE DIVISION
   10  OF CRIMINAL JUSTICE SERVICES.
   11    S 3. The penal law is amended by adding a new section 205.70  to  read
   12  as follows:
   13  S 205.70 UNAUTHORIZED DEPARTURE FROM A REHABILITATION FACILITY.
   14    A  PERSON  IS  GUILTY  OF UNAUTHORIZED DEPARTURE FROM A REHABILITATION
   15  FACILITY WHEN A COURT DETERMINES THAT AN ELIGIBLE DEFENDANT, AS  DEFINED
   16  BY  SUBDIVISION  ONE  OF  SECTION  216.00 OF THE CRIMINAL PROCEDURE LAW,
   17  LEAVES, DEPARTS OR ESCAPES FROM THE TREATMENT  FACILITY  TO  WHICH  SUCH
   18  PERSON WAS ASSIGNED FOR A PERIOD OF ALCOHOL OR SUBSTANCE ABUSE TREATMENT
   19  AS  PART OF THE JUDICIAL DIVERSION PROGRAM PURSUANT TO SECTION 216.05 OF
   20  THE CRIMINAL PROCEDURE LAW WITHOUT THE CONSENT OF THE COURT  OR  WRITTEN
   21  CONSENT OF THE FACILITY MANAGEMENT.
   22    UNAUTHORIZED  DEPARTURE  FROM  A  REHABILITATION FACILITY IS A CLASS D
   23  FELONY.
   24    S 4. This act shall take effect immediately.
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