Bill Text: NY A01263 | 2023-2024 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to judicial diversion programs; establishes a diversion part in each county; repeals certain provisions of law relating thereto.
Spectrum: Partisan Bill (Democrat 60-1)
Status: (Introduced) 2024-01-03 - referred to codes [A01263 Detail]
Download: New_York-2023-A01263-Amended.html
Bill Title: Relates to judicial diversion programs; establishes a diversion part in each county; repeals certain provisions of law relating thereto.
Spectrum: Partisan Bill (Democrat 60-1)
Status: (Introduced) 2024-01-03 - referred to codes [A01263 Detail]
Download: New_York-2023-A01263-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 1263--A 2023-2024 Regular Sessions IN ASSEMBLY January 13, 2023 ___________ Introduced by M. of A. FORREST, WEPRIN, HEVESI, GALLAGHER, JACKSON, BURGOS, ANDERSON, GONZALEZ-ROJAS, BURDICK, EPSTEIN, MAMDANI, KELLES, MITAYNES, BICHOTTE HERMELYN, DICKENS, PRETLOW, DARLING, SIMON, MEEKS, GLICK, CUNNINGHAM, L. ROSENTHAL, CRUZ, REYES, WALKER, VANEL, DE LOS SANTOS, DAVILA, TAYLOR, AUBRY, CARROLL, COOK, SEAWRIGHT, RAGA, SHRESTHA, BORES, McDONALD, ARDILA, OTIS, KIM, CLARK, TAPIA, GIBBS, CHANDLER-WATERMAN, SEPTIMO, K. BROWN, JOYNER, O'DONNELL, LEVENBERG -- read once and referred to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law and the judiciary law, in relation to judicial diversion programs; and to repeal certain provisions of the criminal procedure law relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The article heading of article 216 of the criminal proce- 2 dure law, as added by section 4 of part AAA of chapter 56 of the laws of 3 2009, is amended to read as follows: 4 JUDICIAL DIVERSION [PROGRAM FOR CERTAIN FELONY OFFENDERS] 5 PROGRAMS 6 § 2. The opening paragraph of subdivision 1 of section 216.00 of the 7 criminal procedure law, as amended by section 1 of chapter 435 of the 8 laws of 2021, is amended to read as follows: 9 "Eligible defendant" means any person who stands charged in an indict- 10 ment [or a], superior court information [with a class B, C, D or E felo-11ny offense defined in article one hundred seventy-nine, two hundred12twenty or two hundred twenty-two of the penal law, an offense defined in13sections 105.10 and 105.13 of the penal law provided that the underlying14crime for the conspiracy charge is a class B, C, D or E felony offense15defined in article one hundred seventy-nine, two hundred twenty or two16hundred twenty-two of the penal law, auto stripping in the second degreeEXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD00666-03-3A. 1263--A 2 1as defined in section 165.10 of the penal law, auto stripping in the2first degree as defined in section 165.11 of the penal law, identity3theft in the second degree as defined in section 190.79 of the penal4law, identity theft in the first degree as defined in section 190.80 of5the penal law, or any other specified offense as defined in subdivision6five of section 410.91 of this chapter, provided, however, a defendant7is not an "eligible defendant" if he or she:], misdemeanor complaint or 8 felony complaint with any offense and has a functional impairment. 9 § 3. The opening paragraph of subdivision 1 of section 216.00 of the 10 criminal procedure law, as amended by section 2 of chapter 435 of the 11 laws of 2021, is amended to read as follows: 12 "Eligible defendant" means any person who stands charged in an indict- 13 ment [or a], superior court information [with a class B, C, D or E felo-14ny offense defined in article two hundred twenty or two hundred twenty-15two of the penal law, an offense defined in sections 105.10 and 105.1316of the penal law provided that the underlying crime for the conspiracy17charge is a class B, C, D or E felony offense defined in article two18hundred twenty or two hundred twenty-two of the penal law, auto strip-19ping in the second degree as defined in section 165.10 of the penal law,20auto stripping in the first degree as defined in section 165.11 of the21penal law, identity theft in the second degree as defined in section22190.79 of the penal law, identity theft in the first degree as defined23in section 190.80 of the penal law, or any other specified offense as24defined in subdivision five of section 410.91 of this chapter, provided,25however, a defendant is not an "eligible defendant" if he or she:], 26 misdemeanor complaint or felony complaint with any offense and has a 27 functional impairment. 28 § 4. Paragraphs (a) and (b) and the closing paragraph of subdivision 1 29 of section 216.00 of the criminal procedure law are REPEALED. 30 § 5. Subdivision 2 of section 216.00 of the criminal procedure law, as 31 amended by chapter 435 of the laws of 2021, is amended and six new 32 subdivisions 3, 4, 6, 7, 8 and 9 are added to read as follows: 33 2. ["Alcohol and substance use evaluation"] "Participant" means an 34 eligible defendant who has been admitted into judicial diversion pursu- 35 ant to this article. 36 3. "Licensed mental health care professional" means a clinician with 37 professional experience, training and licensure who is qualified to 38 diagnose or treat people with mental health disorders, including: 39 substance-related and addictive disorders, neurodevelopmental disorders, 40 neurocognitive disorders, or other disorders as defined in the most 41 recent version of the diagnostic and statistical manual of mental disor- 42 ders. 43 4. "Functional impairment" means a condition that involves clinically 44 significant distress or disability in social, occupational or other 45 areas of functioning due to a mental health disorder, including: 46 substance-related and addictive disorders, neurodevelopmental disorders, 47 neurocognitive disorders, or other disorders as defined in the most 48 recent version of the diagnostic and statistical manual of mental disor- 49 ders. The court shall defer to licensed mental health care profes- 50 sionals in determining whether a person has a functional impairment. A 51 person may have more than one functional impairment. 52 5. "Clinical evaluation" means a written assessment and report by a 53 [court-approved entity or] licensed mental health care professional 54 [experienced in the treatment of alcohol and substance use disorder, or] 55 as defined in subdivision three of this section or an evaluation 56 conducted by an addiction and substance [abuse] use disorder counselorA. 1263--A 3 1 credentialed by the office of addiction services and supports pursuant 2 to section 19.07 of the mental hygiene law, which shall include: 3 (a) an evaluation as to whether the defendant currently has [a history4of alcohol or substance use disorder] one or more functional impairments 5 that may include but not be limited to a mental health disorder, as 6 [such terms are] defined in the most recent edition of the diagnostic 7 and statistical manual of mental disorders, [fifth edition, and a co-oc-8curring mental disorder or mental illness and the relationship between9such use and mental disorder or mental illness,] if any; 10 (b) a recommendation as to whether the defendant's [alcohol or11substance use] functional impairments, if any, could be effectively 12 addressed by judicial diversion in accordance with this article; 13 (c) a recommendation as to the treatment modality, level of care and 14 length of any proposed treatment to effectively address the defendant's 15 [alcohol or substance use and any co-occurring mental disorder or16illness] functional impairments; and 17 (d) any other information, factor, circumstance, or recommendation 18 deemed relevant by the assessing entity or specifically requested by the 19 court. 20 6. "Treatment" means one or more evidence-based interventions includ- 21 ing, but not limited to, counseling, psychotherapy, psychotropic medica- 22 tion, health promotion, and overdose prevention education. Treatment 23 for the purposes of this article does not include treatment in a carcer- 24 al setting or in a forensic hospital pursuant to article seven hundred 25 thirty of this chapter. For substance use disorders, treatment includes 26 any clinical service or intervention that assists individuals to achieve 27 harm reduction. 28 7. "Treatment provider" means a person or organization qualified to 29 provide interventions responsive to the needs identified by the defend- 30 ant and clinician during the clinical evaluation. 31 8. "Harm reduction" means a set of interventions to reduce the nega- 32 tive consequences of substance use and does not require abstinence. 33 9. "Certified peers" means professionals who have the lived experience 34 of successfully navigating recovery-oriented systems of care who are 35 certified by the office of mental health or by the office of addiction 36 services and supports to provide peer support services. The peer model 37 should be integrated into every stage of the judicial diversion process. 38 § 6. Section 216.05 of the criminal procedure law, as amended by chap- 39 ter 435 of the laws of 2021, is amended to read as follows: 40 § 216.05 Judicial diversion program; court procedures. 41 1. At any time after the local criminal court arraignment of an eligi- 42 ble defendant, but prior to the entry of a plea of guilty or the 43 commencement of trial, the court at the request of the [eligible] 44 defendant, [may] shall order [an alcohol and substance use] a clinical 45 evaluation for all known functional impairments. Such evaluations shall 46 take place without undue delay. 47 (a) The possibility of being evaluated shall not be contingent on a 48 waiver of any other sections of this chapter except subdivision one of 49 section 30.30 of this chapter. 50 [An eligible] (b) A defendant may decline to [participate in] undergo 51 such an evaluation at any time. 52 (c) The defendant shall provide a written authorization, in compliance 53 with the requirements of any applicable state or federal laws, rules or 54 regulations authorizing disclosure of the results of the assessment to 55 the defendant's attorney, the prosecutor, the local probation depart- 56 ment, the court, authorized court personnel and other individuals speci-A. 1263--A 4 1 fied in such authorization for the sole purpose of determining whether 2 the defendant should be offered judicial diversion for treatment for 3 [substance use, alcohol use and any co-occurring mental disorder or4mental illness] a functional impairment. 5 (d) No statement or other disclosure, written or otherwise, made by a 6 defendant to a licensed mental health care professional or treatment 7 provider may be used by the prosecution to prove any crime or offense 8 alleged in the pending case. All such statements shall be used only for 9 the purposes of making recommendations as defined in subdivision two of 10 this section and shall otherwise remain confidential. 11 2. Upon receipt of the completed [alcohol and substance use] clinical 12 evaluation [report], the court shall provide a copy of the report to the 13 [eligible] defendant and the [prosecutor] defendant's counsel. The 14 court and the prosecutor shall receive a copy of the clinical evaluation 15 only if the defendant decides to proceed in requesting judicial diver- 16 sion. 17 3. (a) Upon [receipt] review of the clinical evaluation [report], the 18 prosecutor and defendant can agree to diversion based on the recommenda- 19 tions in the evaluation report. If the parties disagree, either party 20 may request a hearing on the issue of whether the [eligible] defendant 21 is an eligible defendant and should be offered [alcohol or substance22use] treatment pursuant to this article. At such a proceeding, which 23 shall be held as soon as practicable so as to facilitate early inter- 24 vention in the event that the defendant is found to need [alcohol or25substance use] treatment, the court may consider oral and written argu- 26 ments, [may] take testimony from witnesses offered by either party, and 27 [may] consider any relevant evidence [including, but not limited to,28evidence that:29(i) the defendant had within the preceding ten years (excluding any30time during which the offender was incarcerated for any reason between31the time of the acts that led to the youthful offender adjudication and32the time of commission of the present offense) been adjudicated a youth-33ful offender for: (A) a violent felony offense as defined in section3470.02 of the penal law; or (B) any offense for which a merit time allow-35ance is not available pursuant to subparagraph (ii) of paragraph (d) of36subdivision one of section eight hundred three of the correction law;37and38(ii) in the case of a felony offense defined in subdivision five of39section 410.91 of this chapter, or section 165.10, 165.11, 190.79 or40190.80 of the penal law, any statement of or submitted by the victim, as41defined in paragraph (a) of subdivision two of section 380.50 of this42chapter] except sealed cases defined in section 160.50 or 160.55 of this 43 chapter. 44 (b) Upon completion of such a proceeding, the court shall consider and 45 make findings of fact with respect to whether: 46 (i) the defendant is an eligible defendant as defined in subdivision 47 one of section 216.00 of this article; 48 (ii) [the defendant has a history of alcohol or substance use;49(iii) such alcohol or substance use] the defendant's functional 50 impairment is likely a contributing factor to [the defendant's criminal51behavior] their current or future involvement in the criminal legal 52 system; 53 [(iv)] (iii) the defendant's participation in judicial diversion could 54 effectively address such [use] functional impairment; and 55 [(v) institutional confinement of the defendant is or may not be56necessary for the protection of the public] (iv) the defendant's accessA. 1263--A 5 1 to treatment through this article would benefit the public and the 2 defendant. 3 (c) Where there has been a finding in the clinical evaluation that the 4 defendant has a mental disorder, as defined in the most recent edition 5 of the diagnostic and statistical manual of mental disorders, or a clin- 6 ical diagnosis of another serious functional impairment there shall be a 7 presumption that the defendant is an eligible defendant. 8 4. (a) When an authorized court determines, pursuant to paragraph (b) 9 of subdivision three of this section, that an eligible defendant should 10 be offered [alcohol or substance use] treatment, or when the parties and 11 the court agree to [an eligible defendant's participation in alcohol or12substance use] treatment, an eligible defendant [may] shall be allowed 13 to participate in the judicial diversion program offered by this arti- 14 cle. [Prior to the court's issuing an order granting judicial diver-15sion, the eligible defendant shall be required to enter a plea of guilty16to the charge or charges; provided, however, that no such guilty plea17shall be required when:18(a) the people and the court consent to the entry of such an order19without a plea of guilty; or20(b) based on a finding of exceptional circumstances, the court deter-21mines that a plea of guilty shall not be required. For purposes of this22subdivision, exceptional circumstances exist when, regardless of the23ultimate disposition of the case, the entry of a plea of guilty is like-24ly to result in severe collateral consequences.] 25 (b) Eligible defendants shall not be required to submit a plea of 26 guilty to participate in judicial diversion. 27 (c) Prior participation in treatment or court-mandated treatment shall 28 not preclude future treatment participation. 29 (d) Eligible defendants shall not be precluded from diversion because 30 of a lack of resources in the community. 31 (e) An eligible defendant shall not be precluded from diversion 32 because of their gender identity. 33 5. The [defendant] participant shall agree on the record or in writing 34 to abide by the [release] judicial diversion program conditions set by 35 the court, which[,] shall include[:] participation in a specified period 36 of [alcohol or substance use] treatment at a specified program or 37 programs [identified by the court, which may include periods of detoxi-38fication,]. In setting the program conditions, the court shall consider 39 the participant's assessment and treatment plan, as agreed upon by the 40 participant and treatment provider, in addition to the clinical evalu- 41 ation. Judicial diversion program conditions may include: 42 (a) limited or intensive outpatient treatment in which the participant 43 may reside in the community, regardless of whether they have permanent 44 housing or not; 45 (b) limited periods of detoxification or inpatient rehabilitation for 46 participants with substance use disorders as preparation for a treatment 47 admission or medication induction; 48 (c) residential [or outpatient] treatment[, or both]. If ordering 49 residential treatment, placement shall be in the most integrated setting 50 appropriate for the participant's needs to avoid discrimination on the 51 basis of disability, in accordance with federal law, as determined after 52 taking into account the views of the health care professional who 53 conducted the mental health assessment or alcohol and substance use 54 evaluation and any health care professionals responsible for providing 55 such treatment or monitoring the [defendant's] participant's progress in 56 such treatment; [and may include: (i)]A. 1263--A 6 1 (d) periodic court appearances, which may [include periodic urinaly-2sis; (ii)] be an electronic appearance pursuant to section 182.20 of 3 this part upon consent of the participant. The court shall consider the 4 participant's service engagement and treatment needs when scheduling 5 periodic court appearances and shall attempt to minimize treatment 6 disruption; 7 (e) periodic drug screening as needed, when recommended by the treat- 8 ment provider as part of a participant's treatment plan. Drug screening 9 methods shall only include oral swabs, sweat patches, or non-observed 10 urinalysis; 11 (f) other treatment as recommended by the treatment provider; and 12 (g) a requirement that the [defendant] participant refrain from engag- 13 ing in criminal behaviors[; (iii) if the defendant needs treatment for14opioid use, that he or she]. 15 5-a. The court shall not require a participant to consent to share, or 16 authorize the treatment provider to share, protected health information 17 in accordance with the Health Insurance Portability and Accountability 18 Act Privacy Rule (45 CFR Parts 160 and 164), with the court. Exceptions 19 include: 20 (a) record of attendance and relevant barriers to attendance; 21 (b) treatment plan and any recommended changes to the plan during 22 participation in judicial diversion; and 23 (c) drug toxicology results, when part of the treatment plan. 24 5-b. If the participant has one or more conditions requiring 25 prescription medication they may participate in and receive medically 26 prescribed drug treatments under the care of a health care professional 27 licensed or certified under title eight of the education law, acting 28 within his or her lawful scope of practice[, provided that no]. 29 (a) No court shall limit the medications that a licensed mental health 30 care professional recommends prescribing for the participant; 31 (b) No court shall require the use of any specified type or brand of 32 drug during the course of medically prescribed [drug] treatments[.]; and 33 (c) No court shall penalize or sanction a participant for periods of 34 voluntary hospitalization, respite care, or other forms of supportive 35 care. 36 5-c. Treatment providers shall collaborate with the participant and 37 clinical court staff to create a discharge plan prior to completion of 38 diversion to incorporate peer support, housing and employment support, 39 and how to access other community-based health services. If a partic- 40 ipant finishes their treatment plan, they shall be considered to have 41 successfully completed their obligation to the court, regardless of 42 their ability to secure permanent housing, employment, or other personal 43 goals identified by the participant. 44 5-d. Upon request by the defense, the court shall allow participants 45 to consult a different mental health care professional for a second 46 opinion and propose an alternative treatment plan. Any alternative opin- 47 ion or alternative treatment plan shall be considered by the court when 48 determining the treatment plan. 49 6. Upon [an eligible defendant's] a participant's agreement to abide 50 by the conditions set by the court, the court shall issue a securing 51 order providing for bail or release on the [defendant's] participant's 52 own recognizance and conditioning any release upon the agreed upon 53 conditions pursuant to article five hundred ten of this chapter. The 54 period of [alcohol or substance use] treatment shall begin as specified 55 by the court and as soon as practicable after the [defendant's] partic- 56 ipant's release, taking into account the availability of treatment, soA. 1263--A 7 1 as to facilitate early intervention with respect to the [defendant's2substance use or condition] participant's functional impairment and the 3 effectiveness of the treatment program. In the event that a treatment 4 program is not immediately available or becomes unavailable during the 5 course of the [defendant's participation] participant's involvement in 6 the judicial diversion program, the court may release the [defendant] 7 participant pursuant to the securing order. 8 7. When participating in judicial diversion treatment pursuant to this 9 article, any resident of this state who is covered under a private 10 health insurance policy or contract issued for delivery in this state 11 pursuant to article thirty-two, forty-three or forty-seven of the insur- 12 ance law or article forty-four of the public health law, or who is 13 covered by a self-funded plan which provides coverage for the diagnosis 14 and treatment of [chemical abuse and chemical dependence] functional 15 impairment however defined in such policy; shall first seek reimburse- 16 ment for such treatment in accordance with the provisions of such policy 17 or contract. The court in its discretion may order the participant to 18 apply for public insurance if they so qualify. The court shall not deny 19 access to treatment for inability to pay. 20 8. (a) During the period of a [defendant's participation] partic- 21 ipant's involvement in the judicial diversion program, the treatment 22 court shall retain jurisdiction of the [defendant] participant, 23 provided, however, that the court [may] shall allow such [defendant] 24 participant to (i) reside in another jurisdiction, [or] and/or (ii) 25 participate in [alcohol and substance use] treatment and other programs 26 in the jurisdiction where the [defendant] participant resides or in any 27 other jurisdiction, while participating in a judicial diversion program 28 under conditions set by the court and agreed to by the [defendant] 29 participant pursuant to subdivisions five and six of this section. The 30 court may transfer the participant's case to the judicial diversion 31 court in the county in which the participant resides pursuant to subdi- 32 vision five of section 170.15 of this part, subdivision four of section 33 180.20 of this part, or section 230.21 of this part to ensure continuity 34 of treatment. 35 (b) The court may require the [defendant] participant to appear in 36 court [at any time] or remotely to enable the court to monitor the 37 [defendant's] participant's progress in [alcohol or substance use] 38 treatment. The frequency of appearances shall take into account a 39 person's individual circumstances and treatment progress in accordance 40 with best practices. The court shall provide notice, reasonable under 41 the circumstances, to the people, the treatment provider, the [defend-42ant] participant and the [defendant's] participant's counsel whenever it 43 orders or otherwise requires the appearance of the [defendant in] 44 participation for court appearances. Failure to appear as required with- 45 out reasonable cause therefor shall constitute a violation of the condi- 46 tions of the court's agreement with the [defendant] participant. 47 9. (a) If at any time during the [defendant's participation] partic- 48 ipant's engagement in the judicial diversion program, the court has 49 reasonable grounds to believe that the [defendant] participant has 50 violated a [release] program condition in an important respect or has 51 willfully failed to appear before the court as requested, the court 52 except as provided in subdivision two of section 510.50 of this chapter 53 regarding a failure to appear, shall direct the [defendant] participant 54 to appear [or issue a bench warrant to a police officer or an appropri-55ate peace officer directing him or her to take the defendant into custo-56dy and bring the defendant before the court without unnecessary delay;A. 1263--A 8 1provided, however, that under no circumstances shall a defendant who2requires treatment for opioid use be deemed to have violated a release3condition on the basis of his or her participation in medically4prescribed drug treatments under the care of a health care professional5licensed or certified under title eight of the education law, acting6within his or her lawful scope of practice] for a hearing on the 7 violation pursuant to paragraph (b) of this subdivision with at least 8 forty-eight hours notice to the participant or the participant's coun- 9 sel, unless notice is waived by the participant. The court may not 10 modify the participant's securing order until such time as the hearing's 11 conclusion. The relevant provisions of section 530.60 of this chapter 12 relating to issuance of securing orders shall apply to such proceedings 13 under this subdivision. There is a presumption that a bench warrant 14 shall not be issued for participants in judicial diversion. 15 (b) In determining whether a [defendant] participant violated a condi- 16 tion of [his or her release under] the judicial diversion program or 17 willfully failed to appear in court, the court [may] shall conduct a 18 [summary] hearing consistent with due process [and sufficient] to satis- 19 fy the court that the [defendant] participant has, in fact, violated the 20 condition or willfully failed to appear. 21 (i) The court shall provide reasonable notice to the participant and 22 the participant's counsel, but in no circumstance less than forty-eight 23 hours notice, unless notice is waived by the participant. 24 (ii) The people shall bear the burden of proving by clear and convinc- 25 ing evidence that the participant has violated a condition of the judi- 26 cial diversion program in an important respect. The participant may 27 cross-examine witnesses and may present relevant, admissible evidence on 28 their own behalf. The court shall consider all factors relating to the 29 participant's current mental health or cognitive status, their engage- 30 ment with judicial diversion prior to this time, as well as any other 31 factors that may have impacted their participation or alleged violation. 32 (iii) A bench warrant shall not be issued absent a finding by the 33 court that the alleged violation or failure to appear was willful. In 34 determining willfulness, the court shall consider: the nexus between the 35 participant's violation or failure to appear and their functional 36 impairment; whether an appropriate treatment plan is currently in place; 37 the participant's history of making court appearances in the instant 38 matter; and a history of positive engagement with treatment staff or the 39 court. 40 (iv) Under no circumstances shall a participant who requires treatment 41 for a functional impairment be deemed to have violated a program condi- 42 tion on the participation in medically prescribed drug treatments under 43 the care of a health care professional licensed or certified under title 44 eight of the education law, acting within his or her lawful scope of 45 practice. 46 (v) If the court finds a reasonable explanation or mitigation for any 47 alleged violation or alleged willful failure to appear, the securing 48 order shall not be modified. 49 (vi) The court may seal portions of the proceeding related to collat- 50 eral consequences at the request of the participant and participant's 51 counsel. 52 (c) If the court determines by clear and convincing evidence that the 53 [defendant] participant has violated a condition of his or her release 54 under the judicial diversion program, the court may permit the partic- 55 ipant to continue their treatment mandate as previously ordered; modify 56 the [conditions thereof, reconsider the order of recognizance or bailA. 1263--A 9 1pursuant to subdivision two of section 510.30 of this chapter,] treat- 2 ment plan per the recommendation of the treatment provider; hold treat- 3 ment in abeyance until the underlying matter that caused the violation 4 is resolved; or terminate the [defendant's] participant's participation 5 in the judicial diversion program[; and when applicable proceed with the6defendant's sentencing in accordance with the agreement. Notwithstanding7any provision of law to the contrary, the court may impose any sentence8authorized for the crime of conviction in accordance with the plea9agreement, or any lesser sentence authorized to be imposed on a felony10drug offender pursuant to paragraph (b) or (c) of subdivision two of11section 70.70 of the penal law taking into account] if no other treat- 12 ment option is available. The court shall consider: 13 (i) the length of time the [defendant] participant spent in residen- 14 tial treatment and how best to continue treatment [while the defendant15is serving that sentence. In determining what action to take for a16violation of a release condition, the court shall consider]; 17 (ii) all relevant circumstances, including the views of the prosecu- 18 tor, the defense and the [alcohol or substance use] participant's inter- 19 est in continuing treatment [provider, and the extent to which persons20who ultimately successfully complete a drug treatment regimen sometimes] 21 or the program; and 22 (iii) the role of relapse [by not abstaining from alcohol or substance23use or by failing to comply fully with all requirements imposed by a24treatment program] in recovery and treatment. 25 (d) The court shall [also consider using] use a system of graduated 26 and appropriate responses [or sanctions] designed to address such inap- 27 propriate behaviors[, protect public safety] and facilitate, where 28 possible, successful completion of the [alcohol or substance use] treat- 29 ment program. 30 [(d)] (e) Nothing in this subdivision shall be construed [as prevent-31ing a court from terminating a defendant's participation in the judicial32diversion program for violating a release condition when such a termi-33nation is necessary to preserve public safety. Nor shall anything in34this subdivision be construed] as precluding the prosecution of a 35 [defendant] participant for the commission of a different offense while 36 participating in the judicial diversion program. Prior to such termi- 37 nation, the participant shall be entitled to a hearing at which clear 38 and convincing evidence shall be offered to support that there exists a 39 substantial risk to an identifiable person. In the absence of such a 40 hearing and such a finding, there can be no termination. 41 [(e)] (f) A [defendant] participant may at any time advise the court 42 that [he or she wishes] they wish to terminate participation in the 43 judicial diversion program, at which time the court shall [proceed with44the case and, where applicable, shall impose sentence in accordance with45the plea agreement. Notwithstanding any provision of law to the contra-46ry, the court may impose any sentence authorized for the crime of47conviction in accordance with the plea agreement, or any lesser sentence48authorized to be imposed on a felony drug offender pursuant to paragraph49(b) or (c) of subdivision two of section 70.70 of the penal law taking50into account the length of time the defendant spent in residential51treatment and how best to continue treatment while the defendant is52serving that sentence] transfer the case back to the appropriate trial 53 part. 54 10. Upon the court's determination that the [defendant] participant 55 has successfully completed the required period of [alcohol or substance56use] treatment and has otherwise satisfied the conditions required forA. 1263--A 10 1 successful completion of the judicial diversion program, the court shall 2 [comply with the terms and conditions it set for final disposition when3it accepted the defendant's agreement to participate in the judicial4diversion program. Such disposition may include, but is not limited to:5(a) requiring the defendant to undergo a period of interim probation6supervision and, upon the defendant's successful completion of the7interim probation supervision term, notwithstanding the provision of any8other law, permitting the defendant to withdraw his or her guilty plea9and dismissing the indictment; or (b) requiring the defendant to undergo10a period of interim probation supervision and, upon successful11completion of the interim probation supervision term, notwithstanding12the provision of any other law, permitting the defendant to withdraw his13or her guilty plea, enter a guilty plea to a misdemeanor offense and14sentencing the defendant as promised in the plea agreement, which may15include a period of probation supervision pursuant to section 65.00 of16the penal law; or (c) allowing the defendant to withdraw his or her17guilty plea and dismissing] dismiss the indictment or superior court 18 information, felony complaint, misdemeanor complaint, information, 19 simplified information, or prosecutor's information and seal the case 20 pursuant to section 160.50 of this chapter. 21 11. Nothing in this article shall be construed as restricting or 22 prohibiting courts or district attorneys from using other lawful proce- 23 dures or models for placing appropriate persons into [alcohol or24substance use] treatment. 25 § 7. The criminal procedure law is amended by adding a new section 26 216.10 to read as follows: 27 § 216.10 Diversion part established. 28 1. The chief administrator of the courts is hereby directed to estab- 29 lish, in each county of the state, a part of the court to be known as 30 the diversion part for the county in which such court presides. To aid 31 in their work, such judges and diversion court personnel shall receive 32 annual training in specialized areas, including, but not limited to 33 disability, mental illness, and substance use disorder needs, including 34 co-occurring disorders, evidence-based practices, trauma-informed care, 35 certified peer programs, and harm reduction principles, as well as 36 training in procedural justice and cultural competency and medicaid or 37 medicare eligibility. The chief administrator of the courts shall ensure 38 that all employees who staff the diversion parts receive specialized 39 training in procedural justice and working with people with complex 40 needs. 41 2. Each chief administrator of the courts shall at the end of each 42 year prepare and file an annual report, which the office shall compile, 43 publish on its website and make available upon request to members of the 44 public. Such reports shall not include any personal identifying informa- 45 tion for any individual participants. Each such report, in addition to 46 other relevant information, shall set forth, disaggregated by each coun- 47 ty served: 48 (a) the number of people with cases in the diversion part for each of 49 the following categories, broken down by gender, race and ethnicity: 50 (i) the number of people who make an application for evaluation; 51 (ii) the number of people who are accepted into judicial diversion; 52 and 53 (iii) the number of people who successfully complete the program; 54 (b) the length of time, in months, each case remained in the diversion 55 part prior to acquittal, dismissal, release on recognizance, revocation 56 of release on conditions, and sentencing;A. 1263--A 11 1 (c) the demographic makeup of participants in the diversion part, 2 broken down by race, ethnicity, age and sex of participants; 3 (d) the crimes with which each participant was charged; 4 (e) whether the treatment obtained was for substance use, mental 5 health, co-occurring or other; 6 (f) the court disposition in each supervised case, including sentenc- 7 ing information; 8 (g) the costs saved to the county by avoiding pre-trial or post-con- 9 viction detention in a county jail or state prison; and 10 (h) a list of service providers, including contact information, that 11 the diversion part in the superior court of the county partners with to 12 serve participants. 13 § 8. Subdivision 5 of section 170.15 of the criminal procedure law, as 14 amended by chapter 91 of the laws of 2021, is amended to read as 15 follows: 16 5. (a) Notwithstanding any provision of this section to the contrary, 17 in any county [outside a city having a population of one million or18more], upon or after arraignment of a defendant on an information, a 19 simplified information, a prosecutor's information or a misdemeanor 20 complaint pending in a local criminal court, such court [may] shall, 21 upon motion of the defendant and after giving the district attorney an 22 opportunity to be heard, order that the action be removed from the court 23 in which the matter is pending to another local criminal court in the 24 same county, or with consent of the district attorney and the district 25 attorney of the adjoining county to another court in [such] an adjoining 26 county, or to a court in the county in which the defendant resides that 27 has been designated as a judicial diversion, human trafficking [court], 28 or veterans treatment court by the chief administrator of the courts, 29 and such judicial diversion, human trafficking [court], or veterans 30 treatment court [may] shall then conduct such action to judgment or 31 other final deposition; provided, however, that no court may order 32 removal pursuant to this subdivision to a veterans treatment court of a 33 family offense charge described in subdivision one of section 530.11 of 34 this chapter where the accused and the person alleged to be the victim 35 of such offense charged are members of the same family or household as 36 defined in such subdivision one of section 530.11; and provided further 37 that an order of removal issued under this subdivision shall not take 38 effect until five days after the date the order is issued unless, prior 39 to such effective date, the human trafficking court or veterans treat- 40 ment court notifies the court that issued the order that: 41 i. it will not accept the action, in which event the order shall not 42 take effect; or 43 ii. it will accept the action on a date prior to such effective date, 44 in which event the order shall take effect upon such prior date. 45 (b) Upon providing notification pursuant to subparagraph i or ii of 46 paragraph (a) of this subdivision, the human trafficking court or veter- 47 ans treatment court shall promptly give notice to the defendant, his or 48 her counsel, and the district attorney. 49 § 9. Subdivision 4 of section 180.20 of the criminal procedure law, as 50 amended by chapter 91 of the laws of 2021, is amended to read as 51 follows: 52 4. (a) Notwithstanding any provision of this section to the contrary, 53 [in any county outside a city having a population of one million or54more,] upon or after arraignment of a defendant on a felony complaint 55 pending in a local criminal court having preliminary jurisdiction there- 56 of, such court [may] shall, upon motion of the defendant and afterA. 1263--A 12 1 giving the district attorney an opportunity to be heard, order that the 2 action be removed from the court in which the matter is pending to 3 another local criminal court in the same county, or with consent of the 4 district attorney and the district attorney of the adjoining county to 5 another court in such adjoining county, or to a court in the county in 6 which the defendant resides, that has been designated as a judicial 7 diversion, human trafficking [court], or veterans treatment court by the 8 chief administrator of the courts, and such judicial diversion, human 9 trafficking [court], or veterans treatment court may then conduct such 10 action to judgment or other final disposition; provided, however, that 11 no court may order removal pursuant to this subdivision to a veterans 12 treatment court of a family offense charge described in subdivision one 13 of section 530.11 of this chapter where the accused and the person 14 alleged to be the victim of such offense charged are members of the same 15 family or household as defined in such subdivision one of section 16 530.11; and provided further an order of removal issued under this 17 subdivision shall not take effect until five days after the date the 18 order is issued unless, prior to such effective date, the human traf- 19 ficking court or veterans treatment court notifies the court that issued 20 the order that: 21 i. it will not accept the action, in which event the order shall not 22 take effect; or 23 ii. it will accept the action on a date prior to such effective date, 24 in which event the order shall take effect upon such prior date. 25 (b) Upon providing notification pursuant to subparagraph i or ii of 26 paragraph (a) of this subdivision, the human trafficking court or veter- 27 ans treatment court shall promptly give notice to the defendant, his or 28 her counsel and the district attorney. 29 § 10. Section 230.21 of the criminal procedure law, as added by chap- 30 ter 91 of the laws of 2021, is amended to read as follows: 31 § 230.21 Removal of action to certain courts in an adjoining county or 32 county in which the defendant resides. 33 1. In any county [outside a city having a population of one million or34more], [the] upon or after arraignment of a defendant on an indictment 35 pending in a superior court having jurisdiction thereof, such court 36 [may] shall, upon motion of the defendant and with consent of the 37 district attorney and the district attorney of the adjoining county that 38 has a superior court designated a human trafficking court or veterans 39 treatment court by the chief administrator of the courts, order that the 40 indictment and action be removed from the court in which the matter is 41 pending to [such] a superior court in an adjoining county or in the 42 county in which the defendant resides that has been designated a judi- 43 cial diversion, human trafficking [court], or veterans treatment court, 44 whereupon such court may then conduct such action to judgment or other 45 final disposition; provided, however, that no court may order removal to 46 a veterans treatment court of a family offense charge described in 47 subdivision one of section 530.11 of this chapter pursuant to this 48 section where the accused and the person alleged to be the victim of 49 such offense charged are members of the same family or household as 50 defined in such subdivision one of section 530.11; and provided further 51 that an order of removal issued under this subdivision shall not take 52 effect until five days after the date the order is issued unless, prior 53 to such effective date, the human trafficking court or veterans treat- 54 ment court notifies the court that issued the order that: 55 (a) it will not accept the action, in which event the order shall not 56 take effect, orA. 1263--A 13 1 (b) it will accept the action on a date prior to such effective date, 2 in which event the order shall take effect upon such prior date. 3 2. Upon providing notification pursuant to paragraph (a) or (b) of 4 subdivision one of this section, the human trafficking court or veterans 5 treatment court shall promptly give notice to the defendant, his or her 6 counsel and the district attorney of both counties. 7 § 11. Paragraph (r) of subdivision 2 of section 212 of the judiciary 8 law, as added by section 15 of part AAA of chapter 56 of the laws of 9 2009, is amended to read as follows: 10 (r) Ensure that cases eligible for judicial diversion pursuant to 11 article two hundred sixteen of the criminal procedure law shall be 12 assigned to court parts in the manner provided by the chief administra- 13 tor and that, to the extent practicable, such cases are presided over by 14 judges who, by virtue of the structure, caseload and resources of the 15 parts and the judges' training, are in the best position to provide 16 effective supervision over such cases, such as the [drug] treatment 17 courts. In compliance with these provisions, the chief administrator 18 shall [give due weight to] individually assess the need for diverted 19 defendants to make regular court appearances, and be closely supervised 20 by the court, for the duration of [drug] treatment and the pendency of 21 the criminal charge. 22 § 12. This act shall take effect on the one hundred eightieth day 23 after it shall have become a law; provided, however that the amendments 24 to the opening paragraph of subdivision 1 of section 216.00 of the 25 criminal procedure law made by section two of this act shall be subject 26 to the expiration and reversion of such paragraph pursuant to 27 section 12 of chapter 90 of the laws of 2014, as amended, when upon 28 such date the provisions of section three of this act shall take 29 effect.