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:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A4008
 
SPONSOR: Tenney
  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 Proce- dure Law to require that when the placement of an individual in a judi- cial diversion program for drug and/or substance abuse is being consid- ered, 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 defend- ant'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 crim- inal 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, unau- thorized departure from a rehabilitation faculty, a class D felony. A person is guilty of unauthorized departure from a rehabilitation facili- ty when an eligible defendant leaves, departs or escapes from the treat- ment 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:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          4008
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    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    § 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    § 3. The penal law is amended by adding a new section 205.70  to  read
    12  as follows:
    13  § 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    § 4. This act shall take effect immediately.
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