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-
    11  ny  offense  defined  in  article  one hundred seventy-nine, two hundred
    12  twenty or two hundred twenty-two of the penal law, an offense defined in
    13  sections 105.10 and 105.13 of the penal law provided that the underlying
    14  crime for the conspiracy charge is a class B, C, D or E  felony  offense
    15  defined  in  article one hundred seventy-nine, two hundred twenty or two
    16  hundred twenty-two of the penal law, auto stripping in the second degree

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00666-03-3

        A. 1263--A                          2

     1  as defined in section 165.10 of the penal law,  auto  stripping  in  the
     2  first  degree  as  defined  in section 165.11 of the penal law, identity
     3  theft in the second degree as defined in section  190.79  of  the  penal
     4  law,  identity theft in the first degree as defined in section 190.80 of
     5  the penal law, or any other specified offense as defined in  subdivision
     6  five  of  section 410.91 of this chapter, provided, however, a defendant
     7  is 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-
    14  ny  offense defined in article two hundred twenty or two hundred twenty-
    15  two of the penal law, an offense defined in sections 105.10  and  105.13
    16  of  the  penal law provided that the underlying crime for the conspiracy
    17  charge is a class B, C, D or E felony offense  defined  in  article  two
    18  hundred  twenty  or two hundred twenty-two of the penal law, auto strip-
    19  ping in the second degree as defined in section 165.10 of the penal law,
    20  auto stripping in the first degree as defined in section 165.11  of  the
    21  penal  law,  identity  theft  in the second degree as defined in section
    22  190.79 of the penal law, identity theft in the first degree  as  defined
    23  in  section  190.80  of the penal law, or any other specified offense as
    24  defined in subdivision five of section 410.91 of this chapter, provided,
    25  however, 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 counselor

        A. 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 history
     4  of 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-
     8  curring  mental  disorder or mental illness and the relationship between
     9  such use and mental disorder or mental illness,] if any;
    10    (b) a  recommendation  as  to  whether  the  defendant's  [alcohol  or
    11  substance  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  or
    16  illness] 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 or
     4  mental 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  substance
    22  use]  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 or
    25  substance 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,
    28  evidence that:
    29    (i)  the  defendant  had within the preceding ten years (excluding any
    30  time during which the offender was incarcerated for any  reason  between
    31  the  time of the acts that led to the youthful offender adjudication and
    32  the time of commission of the present offense) been adjudicated a youth-
    33  ful offender for: (A) a violent felony offense  as  defined  in  section
    34  70.02 of the penal law; or (B) any offense for which a merit time allow-
    35  ance  is not available pursuant to subparagraph (ii) of paragraph (d) of
    36  subdivision one of section eight hundred three of  the  correction  law;
    37  and
    38    (ii)  in  the  case of a felony offense defined in subdivision five of
    39  section 410.91 of this chapter, or section  165.10,  165.11,  190.79  or
    40  190.80 of the penal law, any statement of or submitted by the victim, as
    41  defined  in  paragraph  (a) of subdivision two of section 380.50 of this
    42  chapter] 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  criminal
    51  behavior]  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  be
    56  necessary  for the protection of the public] (iv) the defendant's access

        A. 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  or
    12  substance  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-
    15  sion, the eligible defendant shall be required to enter a plea of guilty
    16  to the charge or charges; provided, however, that no  such  guilty  plea
    17  shall be required when:
    18    (a)  the  people  and  the court consent to the entry of such an order
    19  without a plea of guilty; or
    20    (b) based on a finding of exceptional circumstances, the court  deter-
    21  mines  that a plea of guilty shall not be required. For purposes of this
    22  subdivision, exceptional circumstances exist  when,  regardless  of  the
    23  ultimate disposition of the case, the entry of a plea of guilty is like-
    24  ly 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-
    38  fication,].  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-
     2  sis; (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 for
    14  opioid 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, so

        A. 1263--A                          7

     1  as to facilitate early intervention with  respect  to  the  [defendant's
     2  substance  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-
    42  ant] 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-
    55  ate peace officer directing him or her to take the defendant into custo-
    56  dy and bring the defendant before the court without  unnecessary  delay;

        A. 1263--A                          8

     1  provided,  however,  that  under  no circumstances shall a defendant who
     2  requires treatment for opioid use be deemed to have violated  a  release
     3  condition  on  the  basis  of  his  or  her  participation  in medically
     4  prescribed  drug treatments under the care of a health care professional
     5  licensed or certified under title eight of  the  education  law,  acting
     6  within  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  bail

        A. 1263--A                          9

     1  pursuant  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 the
     6  defendant's sentencing in accordance with the agreement. Notwithstanding
     7  any provision of law to the contrary, the court may impose any  sentence
     8  authorized  for  the  crime  of  conviction  in accordance with the plea
     9  agreement, or any lesser sentence authorized to be imposed on  a  felony
    10  drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
    11  section 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  defendant
    15  is  serving  that  sentence.  In  determining  what action to take for a
    16  violation 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 persons
    20  who 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 substance
    23  use or by failing to comply fully with all  requirements  imposed  by  a
    24  treatment 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-
    31  ing a court from terminating a defendant's participation in the judicial
    32  diversion  program  for violating a release condition when such a termi-
    33  nation is necessary to preserve public safety.  Nor  shall  anything  in
    34  this  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 with
    44  the case and, where applicable, shall impose sentence in accordance with
    45  the plea agreement. Notwithstanding any provision of law to the  contra-
    46  ry,  the  court  may  impose  any  sentence  authorized for the crime of
    47  conviction in accordance with the plea agreement, or any lesser sentence
    48  authorized to be imposed on a felony drug offender pursuant to paragraph
    49  (b) or (c) of subdivision two of section 70.70 of the penal  law  taking
    50  into  account  the  length  of  time  the defendant spent in residential
    51  treatment and how best to continue  treatment  while  the  defendant  is
    52  serving  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 substance
    56  use] treatment and has otherwise satisfied the conditions  required  for

        A. 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 when
     3  it accepted the defendant's agreement to  participate  in  the  judicial
     4  diversion  program. Such disposition may include, but is not limited to:
     5  (a) requiring the defendant to undergo a  period  of  interim  probation
     6  supervision  and,  upon  the  defendant's  successful  completion of the
     7  interim probation supervision term, notwithstanding the provision of any
     8  other law, permitting the defendant to withdraw his or her  guilty  plea
     9  and dismissing the indictment; or (b) requiring the defendant to undergo
    10  a   period   of  interim  probation  supervision  and,  upon  successful
    11  completion of the interim probation  supervision  term,  notwithstanding
    12  the provision of any other law, permitting the defendant to withdraw his
    13  or  her  guilty  plea,  enter a guilty plea to a misdemeanor offense and
    14  sentencing the defendant as promised in the plea  agreement,  which  may
    15  include  a  period of probation supervision pursuant to section 65.00 of
    16  the penal law; or (c) allowing the defendant  to  withdraw  his  or  her
    17  guilty  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  or
    24  substance 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  or
    18  more],  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 or
    54  more,] 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 after

        A. 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 or
    34  more], [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, or

        A. 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.