S1879-2013 Actions

• Apr 23, 2013: REPORTED AND COMMITTED TO FINANCE
• Jan 9, 2013: REFERRED TO ALCOHOLISM AND DRUG ABUSE

S1879-2013 Meetings

S1879-2013 Votes

S1879-2013 Memo

BILL NUMBER:S1879

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:
S.3349-A of 2012: Passed Senate, Died in Assembly Codes S.3349 of
2011: Passed Senate, Died in Assembly Codes

FISCAL IMPLICATIONS: Minimal to State

EFFECTIVE DATE:
This act shall take effect immediately.

S1879-2013 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         1879
 2013-2014 Regular Sessions
 I N  SENATE
 (PREFILED)
 January 9, 2013
 
 Introduced  by  Sen. BONACIC -- read twice and ordered printed, and when
 printed to be committed to the Committee on Alcoholism and Drug Abuse
 

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:

 

Section 1.  Subdivisions 4, 5, 8 and paragraph (a) of subdivision 9 of
 section 216.05 of the criminal procedure law, as added by section  4  of
 part  AAA of chapter 56 of the laws of 2009, subdivision 8 as amended by
 chapter 347 of the laws of 2012, are amended to read as follows:

 4. When an authorized court, AFTER CONSIDERING THE UNDERLYING  CHARGES
 AND THE PROPENSITY OR LACK THEREOF FOR VIOLENT CONDUCT OF THE DEFENDANT,
 AND AFTER REVIEWING OR HEARING ONE OR MORE WRITTEN OR ORAL OPINIONS FROM
 A  LICENSED  PSYCHOLOGIST  OR  PSYCHIATRIST  AS TO THE PROPENSITY OF THE
 DEFENDANT FOR FUTURE VIOLENT CONDUCT, AND AFTER MAKING AN  ON-THE-RECORD
 DETERMINATION  AS TO THE REASONS WHY, BASED ON ALL EVIDENCE, determines,
 pursuant to paragraph (b) of subdivision three of this section, that  an
 eligible  defendant  should be offered alcohol or substance abuse treat
 ment, or when the parties and the court agree to an eligible defendant's
 participation in alcohol  or  substance  abuse  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
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD02810-01-3
 
       S. 1879                             2
 (b) based on a finding of exceptional circumstances, the court  deter
 mines  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 like
 ly 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:  partic
 ipation in a specified period of alcohol or substance abuse 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 abuse evalu
 ation 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,  PROVIDED,  HOWEVER,  THAT  DEFENDANTS  MAY  MAKE SUCH COURT
 APPEARANCES BY VIDEO CONFERENCE, AT THE SOLE DISCRETION  OF  THE  COURT;
 (ii)  a requirement that the defendant refrain from engaging in criminal
 behaviors.
 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 reside in
 another jurisdiction while participating in a judicial diversion program
 under conditions set by the court and agreed to by the defendant  pursu
 ant  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 abuse treat
 ment. The court shall  provide  notice,  reasonable  under  the  circum
 stances,  to  the  people, the treatment provider, the defendant and the
 defendant's counsel whenever it orders or otherwise requires the appear
 ance 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.  AT THE SOLE DISCRETION OF
 THE COURT, ANY COURT APPEARANCE REQUIRED PURSUANT  TO  THIS  SUBDIVISION
 MAY BE MADE BY VIDEO CONFERENCE.
 (a)  If  at any time during the defendant's participation in the judi
 cial diversion program, the court has reasonable grounds to believe that
 the defendant has violated a release condition or has failed  to  appear
 before  the  court as requested, the court 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.  AT
 THE SOLE DISCRETION OF THE COURT, ANY COURT APPEARANCE REQUIRED PURSUANT
 TO  THIS  SUBDIVISION MAY BE MADE BY VIDEO CONFERENCE. The provisions of
 subdivision one of section 530.60 of this chapter relating to revocation
 of recognizance or bail shall  apply  to  such  proceedings  under  this
 subdivision.
 

S 2.

Section 216.05 of the criminal procedure law is amended by adding
 two new subdivisions 5-a and 12 to read as follows:

 5-A. 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 ABUSE TREATMENT, OR WHEN  THE  PARTIES  AND
 THE  COURT  AGREE TO AN ELIGIBLE DEFENDANT'S PARTICIPATION IN ALCOHOL OR
 SUBSTANCE ABUSE TREATMENT, THE COURT SHALL TRANSMIT THE ELIGIBLE DEFEND
 ANT'S ARREST RECORD AND CONVICTION STATEMENT TO THE FACILITY  WHERE  THE
 DEFENDANT IS TO RECEIVE TREATMENT.
 
       S. 1879                             3
 12.  A  FACILITY WHICH IS TREATING A DEFENDANT UNDER THE PROVISIONS OF
 THIS SECTION SHALL NOTIFY THE LOCAL POLICE DEPARTMENT WHICH  HAS  JURIS
 DICTION  OVER  THE  MUNICIPALITY  WHERE  THE FACILITY IS LOCATED, OF THE
 DEFENDANT'S PLACEMENT AND ARREST RECORD (OR IF  THERE  BE  NO  MUNICIPAL
 POLICE  DEPARTMENT, THEN THE SHERIFF OF THE COUNTY IN WHICH THE FACILITY
 IS LOCATED), WHICH SHALL BE PROVIDED TO FACILITY STAFF AT  THE  FACILITY
 IN  A MANNER ORDERED BY THE COURT. THE FACILITY SHALL ALSO SUBMIT TO THE
 DIVISION OF CRIMINAL  JUSTICE  SERVICES  A  SECURITY  PLAN  DESIGNED  TO
 PROVIDE  FOR  THE  SAFETY  OF  STAFF,  RESIDENTS  AND THE COMMUNITY FROM
 VIOLENT BEHAVIOR BY DEFENDANT. SUCH PLAN SHALL BE UPDATED AT LEAST EVERY
 FIVE YEARS OR AS OTHERWISE DIRECTED BY THE COMMISSIONER OF THE  DIVISION
 OF CRIMINAL JUSTICE SERVICES.
 

S  3.  The penal law is amended by adding a new section 205.70 to read
 as follows:

 

S 205.70 UNAUTHORIZED DEPARTURE FROM A REHABILITATION FACILITY.
 A PERSON IS GUILTY OF UNAUTHORIZED  DEPARTURE  FROM  A  REHABILITATION
 FACILITY  WHEN A COURT DETERMINES THAT AN ELIGIBLE DEFENDANT, AS DEFINED
 BY SUBDIVISION ONE OF SECTION 216.00  OF  THE  CRIMINAL  PROCEDURE  LAW,
 LEAVES,  DEPARTS  OR  ESCAPES  FROM THE TREATMENT FACILITY TO WHICH SUCH
 PERSON WAS ASSIGNED FOR A PERIOD OF ALCOHOL OR SUBSTANCE ABUSE TREATMENT
 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.
 UNAUTHORIZED DEPARTURE FROM A REHABILITATION FACILITY  IS  A  CLASS  D
 FELONY.
 

S 4. This act shall take effect immediately.

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