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.
Ayes (32): DeFrancisco, Bonacic, Farley, Flanagan, Fuschillo, Golden, Griffo, Grisanti, Hannon, Lanza, Larkin, LaValle, Little, Marcellino, Nozzolio, O'Mara, Ranzenhofer, Robach, Savino, Seward, Young, Krueger, Dilan, Rivera, Gianaris, Breslin, Peralta, Perkins, Stavisky, Squadron, Kennedy, Espaillat
Ayes W/R (1): Montgomery
Nays (2): Parker, Hassell-Thompson
Excused (1): Diaz
Ayes (60): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Ranzenhofer, Ritchie, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Nays (3): Hassell-Thomps, Montgomery, Perkins
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.
STATE OF NEW YORK ________________________________________________________________________ 1879 2013-2014 Regular Sessions IN 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; orEXPLANATION--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.