Bill Text: NY A04206 | 2013-2014 | General Assembly | Introduced
Bill Title: Establishes a program of drug treatment as an alternative to incarceration for eligible low level, non-violent drug offenders as provided for herein; provides for licensing of programs and criteria therefor; provides that upon satisfactory completion of course of treatment the court imposed sentence of conditional discharge shall be terminated; appropriates $21,000,000 to the division of criminal justice services; creates a class C felony of "operating an illegal drug enterprise".
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2014-01-08 - referred to correction [A04206 Detail]
Download: New_York-2013-A04206-Introduced.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 4206 2013-2014 Regular Sessions I N A S S E M B L Y February 1, 2013 ___________ Introduced by M. of A. CAMARA, CASTRO -- Multi-Sponsored by -- M. of A. BOYLAND, SALADINO -- read once and referred to the Committee on Correction AN ACT to amend the correction law, the criminal procedure law, the executive law and the penal law, in relation to establishing drug treatment alternatives to incarceration for certain offenders; and making an appropriation therefor THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The correction law is amended by adding a new section 72-c 2 to read as follows: 3 S 72-C. SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAMS FOR CERTAIN 4 OFFENDERS. 1. THE COMMISSIONER, THE COMMISSIONER OF ALCOHOLISM AND 5 SUBSTANCE ABUSE SERVICES AND THE DIRECTOR OF THE OFFICE OF PROBATION AND 6 CORRECTIONAL ALTERNATIVES SHALL IDENTIFY AND ENTER INTO AGREEMENTS WITH 7 RESIDENTIAL SUBSTANCE ABUSE, ALCOHOL ABUSE, SUBSTANCE DEPENDENCY AND/OR 8 ALCOHOL DEPENDENCY TREATMENT PROGRAMS TO PROVIDE FOR THE CARE AND TREAT- 9 MENT OF ELIGIBLE OFFENDERS PURSUANT TO SECTION 70.06 OF THE PENAL LAW. 10 2. THE PROGRAMS SHALL EITHER BE LICENSED BY THE OFFICE OF ALCOHOLISM 11 AND SUBSTANCE ABUSE SERVICES OR SHALL BE APPROVED BY THE DEPARTMENT OR 12 THE OFFICE OF PROBATION AND CORRECTIONAL ALTERNATIVES. ANY PROGRAM THAT 13 IS NOT LICENSED BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES 14 SHALL PROVIDE TREATMENT SERVICES IN ACCORDANCE WITH ALL BUT NOT LIMITED 15 TO THE FOLLOWING CRITERIA: 16 (A) RELIANCE UPON TRADITIONAL SELF-HELP TECHNIQUES AND PROGRAMS SUCH 17 AS ALCOHOLICS ANONYMOUS OR NARCOTICS ANONYMOUS; 18 (B) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, PROVIDE COUNSELING BY 19 SUCCESSFULLY RECOVERING SUBSTANCE ABUSERS ABSTAINING FROM THEIR DEPEND- 20 ENCY FOR AT LEAST TWO YEARS; 21 (C) PROVIDE FOR GROUP LIVING SO LONG AS REQUIRED FOR THE TREATMENT OF 22 THE OFFENDERS; EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD07435-01-3 A. 4206 2 1 (D) PROVIDE DAILY COUNSELING FOR AT LEAST THE FIRST NINETY DAYS; 2 (E) PROVIDE LIFE-SKILLS TEACHING; AND 3 (F) PROVIDE FOR DETOXIFICATION SERVICES AND HEALTH-CARE. 4 3. UPON THE SATISFACTORY COMPLETION OF THE COURSE OF TREATMENT, THE 5 ELIGIBLE OFFENDER SHALL HAVE THE COURT IMPOSED SENTENCE OF CONDITIONAL 6 DISCHARGE TERMINATED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90 7 OF THE CRIMINAL PROCEDURE LAW. 8 4. OFFENDERS ASSIGNED TO A PROGRAM SHALL BE SENTENCED AS A SECOND 9 FELONY OFFENDER IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO OF 10 SECTION 70.06 OF THE PENAL LAW AND SHALL BE COMMITTED TO THE CUSTODY OF 11 THE DEPARTMENT IF THE COURT DETERMINES: 12 (A) THAT THE OFFENDER ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT 13 ALTERNATIVE PROGRAM; 14 (B) THAT THE CONFINEMENT OF AN OFFENDER IN THE SUBSTANCE ABUSE TREAT- 15 MENT ALTERNATIVE PROGRAM IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE 16 SAFETY, SECURITY OR ORDER OF SUCH TREATMENT FACILITY; OR 17 (C) THAT THE OFFENDER VIOLATED THE TERMS AND CONDITIONS OF THE 18 SENTENCE. 19 S 2. Paragraph (a) of subdivision 3 of section 390.30 of the criminal 20 procedure law, as added by chapter 14 of the laws of 1985, is amended to 21 read as follows: 22 (a) The report of the pre-sentence investigation must contain an anal- 23 ysis of as much of the information gathered in the investigation as the 24 agency that conducted the investigation deems relevant to the question 25 of sentence. WHERE APPROPRIATE, THE REPORT MUST INCLUDE A TREATMENT 26 PLAN INCLUDING BUT NOT LIMITED TO A LISTING OF AVAILABLE LICENSED 27 SUBSTANCE ABUSE PROGRAMS BY THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE 28 SERVICES OR A PROGRAM APPROVED BY THE DEPARTMENT OF CORRECTIONS AND 29 COMMUNITY SUPERVISION OR THE OFFICE OF PROBATION AND CORRECTIONAL ALTER- 30 NATIVES TO PROVIDE FOR THE CARE AND TREATMENT OF OFFENDERS SENTENCED IN 31 ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION TWO OF SECTION 70.06 OF 32 THE PENAL LAW. The report must also include any other [imformation] 33 INFORMATION that the court directs to be included and the material 34 required by paragraph (b) of this subdivision which shall be considered 35 part of the report. 36 S 3. The executive law is amended by adding a new section 837-s to 37 read as follows: 38 S 837-S. SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM; SPECIAL 39 PROVISIONS. 1. IN COUNTIES WITH FIVE HUNDRED OR LESS ELIGIBLE OFFENDERS 40 PARTICIPATING IN SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAMS AS 41 ESTABLISHED PURSUANT TO SECTION SEVENTY-TWO-C OF THE CORRECTION LAW, 42 SUCH COUNTY SHALL UTILIZE THE ENFORCEMENT MECHANISM PROVIDED IN THIS 43 SECTION. THE COMMISSIONER SHALL ESTABLISH A UNIT WITHIN THE DEPARTMENT 44 OF CORRECTIONS AND COMMUNITY SUPERVISION TO WORK WITH THE DISTRICT 45 ATTORNEY OF SUCH COUNTY AND THE TREATMENT PROGRAMS FOR THE PURPOSE OF 46 LOCATING, APPREHENDING AND REARRESTING OFFENDERS WHO HAVE ABSCONDED 47 FROM, OR VIOLATED THE TERMS AND CONDITIONS OF CONDITIONAL DISCHARGE 48 DURING PARTICIPATION IN A SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM. 49 2. IN COUNTIES WITH FIVE HUNDRED OR MORE ELIGIBLE OFFENDERS PARTIC- 50 IPATING IN SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAMS AS ESTABLISHED 51 PURSUANT TO SECTION SEVENTY-TWO-C OF THE CORRECTION LAW, THE DISTRICT 52 ATTORNEY OF SUCH COUNTY SHALL APPLY TO THE COMMISSIONER FOR FUNDS TO 53 ESTABLISH A UNIT TO WORK WITH THE TREATMENT PROGRAMS FOR THE PURPOSE OF 54 LOCATING, APPREHENDING AND REARRESTING OFFENDERS WHO HAVE ABSCONDED 55 FROM, OR VIOLATED THE TERMS AND CONDITIONS OF CONDITIONAL DISCHARGE 56 DURING PARTICIPATION IN A SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM. A. 4206 3 1 S 4. Subdivision 2 of section 70.06 of the penal law, as amended by 2 section 38 of chapter 7 of the laws of 2007, is amended to read as 3 follows: 4 2. Authorized sentence. (A) Except as provided in subdivision [five 5 or] six of this section, or as provided in subdivision five of section 6 70.80 of this article, when the court has found, pursuant to the 7 provisions of the criminal procedure law, that a person is a second 8 felony offender the court must impose an indeterminate sentence of 9 imprisonment. The maximum term of such sentence must be in accordance 10 with the provisions of subdivision three of this section and the minimum 11 period of imprisonment under such sentence must be in accordance with 12 subdivision four of this section. HOWEVER, IN CASES INVOLVING A 13 CONVICTION OF A CLASS D OR E FELONY AS DEFINED IN ARTICLE TWO HUNDRED 14 TWENTY OR TWO HUNDRED TWENTY-ONE OF THIS CHAPTER, OTHERWISE SUBJECT TO 15 SENTENCE UNDER THIS SECTION, WHERE THE PREDICATE OFFENSE DID NOT SUBJECT 16 THE OFFENDER TO A SENTENCE PURSUANT TO THE PROVISIONS OF: (A) SECTION 17 70.02 OF THIS ARTICLE, (B) AN A-I FELONY OFFENSE, (C) MANSLAUGHTER IN 18 THE SECOND DEGREE, VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE, VEHICU- 19 LAR MANSLAUGHTER IN THE FIRST DEGREE, AND CRIMINALLY NEGLIGENT HOMICIDE 20 AS DEFINED IN ARTICLE ONE HUNDRED TWENTY-FIVE OF THIS CHAPTER, (D) RAPE 21 IN THE SECOND DEGREE, RAPE IN THE THIRD DEGREE, CRIMINAL SEXUAL ACT IN 22 THE SECOND DEGREE, CRIMINAL SEXUAL ACT IN THE THIRD DEGREE, ATTEMPTED 23 SEXUAL ABUSE IN THE FIRST DEGREE, ATTEMPTED RAPE IN THE SECOND DEGREE 24 AND ATTEMPTED CRIMINAL SEXUAL ACT IN THE SECOND DEGREE AS DEFINED IN 25 ARTICLES ONE HUNDRED TEN AND ONE HUNDRED THIRTY OF THIS CHAPTER, AND 26 WHERE IT IS DETERMINED THAT: (I) EXTENDED INSTITUTIONAL CONFINEMENT IS 27 NOT NECESSARY FOR THE PROTECTION OF THE PUBLIC; (II) THE OFFENDER IS IN 28 NEED OF TREATMENT TO RECOGNIZE, MODIFY AND ELIMINATE A SUBSTANCE ABUSE, 29 ALCOHOL ABUSE, SUBSTANCE DEPENDENCY AND/OR ALCOHOL DEPENDENCY; (III) THE 30 OFFENDER DID NOT HAVE SUBSTANTIAL PROPRIETARY OR OTHER AUTHORITATIVE 31 CONTROL OF AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANUFACTURE OR SALE 32 OR DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA; AND (IV) SUCH 33 DISPOSITION IS NOT INCONSISTENT WITH THE ENDS OF JUSTICE, THE COURT MAY 34 IMPOSE A SENTENCE OF CONDITIONAL DISCHARGE PURSUANT TO SECTION 65.05 OF 35 THIS TITLE. 36 (B) IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR HUNDRED TEN OF 37 THE CRIMINAL PROCEDURE LAW, THE COURT MAY IMPOSE SUCH A SENTENCE ON THE 38 CONDITION THAT THE OFFENDER PARTICIPATE IN A SUBSTANCE ABUSE TREATMENT 39 ALTERNATIVE PROGRAM FOR A SPECIFIED TIME PURSUANT TO SECTION 40 SEVENTY-TWO-C OF THE CORRECTION LAW. 41 (C) UPON COMPLETION OF A COURSE OF TREATMENT, THE COURT SHALL TERMI- 42 NATE THE SENTENCE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90 OF 43 THE CRIMINAL PROCEDURE LAW. IF THE COURT DETERMINES THAT THE OFFENDER 44 ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM OR THAT 45 THE SENTENCE IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE SAFETY, THE 46 SECURITY OR ORDER OF SUCH TREATMENT FACILITY OR THAT THE OFFENDER OTHER- 47 WISE VIOLATES THE TERMS AND CONDITIONS OF THE SENTENCE, THE SENTENCE MAY 48 BE REVOKED. UPON REVOCATION, THE OFFENDER SHALL BE SENTENCED AS A SECOND 49 FELONY OFFENDER PURSUANT TO THIS SUBDIVISION. 50 (D) THE COURT SHALL CONDUCT AN ONGOING EVALUATION OF THE PROGRAM. THE 51 COURT SHALL UNDERTAKE STUDIES IN CONJUNCTION WITH THE OFFICE OF 52 PROBATION AND CORRECTIONAL ALTERNATIVES, THE DEPARTMENT OF CORRECTIONS 53 AND COMMUNITY SUPERVISION, AND THE OFFICE OF ALCOHOLISM AND SUBSTANCE 54 ABUSE SERVICES TO ENSURE THAT THE PROGRAMMATIC OBJECTIVES ARE MET. A. 4206 4 1 S 5. Subdivision 2 of section 70.06 of the penal law, as amended by 2 section 39 of chapter 7 of the laws of 2007, is amended to read as 3 follows: 4 2. Authorized sentence. (A) Except [as provided in subdivision five of 5 this section, or] as provided in subdivision five of section 70.80 of 6 this article, when the court has found, pursuant to the provisions of 7 the criminal procedure law, that a person is a second felony offender 8 the court must impose an indeterminate sentence of imprisonment. The 9 maximum term of such sentence must be in accordance with the provisions 10 of subdivision three of this section and the minimum period of imprison- 11 ment under such sentence must be in accordance with subdivision four of 12 this section. HOWEVER, IN CASES INVOLVING A CONVICTION OF A CLASS D OR 13 E FELONY AS DEFINED IN ARTICLE TWO HUNDRED TWENTY OR TWO HUNDRED TWEN- 14 TY-ONE OF THIS CHAPTER, OTHERWISE SUBJECT TO SENTENCE UNDER THIS 15 SECTION, WHERE THE PREDICATE OFFENSE DID NOT SUBJECT THE OFFENDER TO A 16 SENTENCE PURSUANT TO THE PROVISIONS OF: (A) SECTION 70.02 OF THIS ARTI- 17 CLE, (B) AN A-I FELONY OFFENSE, (C) MANSLAUGHTER IN THE SECOND DEGREE, 18 VEHICULAR MANSLAUGHTER IN THE SECOND DEGREE, VEHICULAR MANSLAUGHTER IN 19 THE FIRST DEGREE, AND CRIMINALLY NEGLIGENT HOMICIDE AS DEFINED IN ARTI- 20 CLE ONE HUNDRED TWENTY-FIVE OF THIS CHAPTER, (D) RAPE IN THE SECOND 21 DEGREE, RAPE IN THE THIRD DEGREE, CRIMINAL SEXUAL ACT IN THE SECOND 22 DEGREE, CRIMINAL SEXUAL ACT IN THE THIRD DEGREE, ATTEMPTED SEXUAL ABUSE 23 IN THE FIRST DEGREE, ATTEMPTED RAPE IN THE SECOND DEGREE AND ATTEMPTED 24 CRIMINAL SEXUAL ACT IN THE SECOND DEGREE AS DEFINED IN ARTICLES ONE 25 HUNDRED TEN AND ONE HUNDRED THIRTY OF THIS CHAPTER, AND WHERE IT IS 26 DETERMINED THAT: (I) EXTENDED INSTITUTIONAL CONFINEMENT IS NOT NECESSARY 27 FOR THE PROTECTION OF THE PUBLIC; (II) THE OFFENDER IS IN NEED OF TREAT- 28 MENT TO RECOGNIZE, MODIFY AND ELIMINATE A SUBSTANCE ABUSE, ALCOHOL 29 ABUSE, SUBSTANCE DEPENDENCY AND/OR ALCOHOL DEPENDENCY; (III) THE OFFEN- 30 DER DID NOT HAVE SUBSTANTIAL PROPRIETARY OR OTHER AUTHORITATIVE CONTROL 31 OF AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANUFACTURE OR SALE OR 32 DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA; AND (IV) SUCH 33 DISPOSITION IS NOT INCONSISTENT WITH THE ENDS OF JUSTICE, THE COURT MAY 34 IMPOSE A SENTENCE OF CONDITIONAL DISCHARGE PURSUANT TO SECTION 65.05 OF 35 THIS TITLE. 36 (B) IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE FOUR HUNDRED TEN OF 37 THE CRIMINAL PROCEDURE LAW, THE COURT MAY IMPOSE SUCH A SENTENCE ON THE 38 CONDITION THAT THE OFFENDER PARTICIPATE IN A SUBSTANCE ABUSE TREATMENT 39 ALTERNATIVE PROGRAM FOR A SPECIFIED TIME PURSUANT TO SECTION 40 SEVENTY-TWO-C OF THE CORRECTION LAW. 41 (C) UPON COMPLETION OF A COURSE OF TREATMENT, THE COURT SHALL TERMI- 42 NATE THE SENTENCE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 410.90 OF 43 THE CRIMINAL PROCEDURE LAW. IF THE COURT DETERMINES THAT THE OFFENDER 44 ABSCONDED FROM THE SUBSTANCE ABUSE TREATMENT ALTERNATIVE PROGRAM OR THAT 45 THE SENTENCE IS NO LONGER SUITABLE BECAUSE IT ENDANGERS THE SAFETY, THE 46 SECURITY OR ORDER OF SUCH TREATMENT FACILITY OR THAT THE OFFENDER OTHER- 47 WISE VIOLATES THE TERMS AND CONDITIONS OF THE SENTENCE, THE SENTENCE MAY 48 BE REVOKED. UPON REVOCATION, THE OFFENDER SHALL BE SENTENCED AS A SECOND 49 FELONY OFFENDER PURSUANT TO THIS SUBDIVISION. 50 (D) THE COURT SHALL CONDUCT AN ONGOING EVALUATION OF THE PROGRAM. THE 51 COURT SHALL UNDERTAKE STUDIES IN CONJUNCTION WITH THE OFFICE OF 52 PROBATION AND CORRECTIONAL ALTERNATIVES, THE DEPARTMENT OF CORRECTIONS 53 AND COMMUNITY SUPERVISION, AND THE OFFICE OF ALCOHOLISM AND SUBSTANCE 54 ABUSE SERVICES TO ENSURE THAT THE PROGRAMMATIC OBJECTIVES ARE MET. 55 S 6. The penal law is amended by adding a new section 220.80 to read 56 as follows: A. 4206 5 1 S 220.80 OPERATING AN ILLEGAL DRUG ENTERPRISE. 2 A PERSON IS GUILTY OF OPERATING AN ILLEGAL DRUG ENTERPRISE WHEN HE OR 3 SHE KNOWINGLY AND UNLAWFULLY HAS SUBSTANTIAL PROPRIETARY OR OTHER 4 AUTHORITATIVE CONTROL OF AN ENTERPRISE DEDICATED TO THE UNLAWFUL MANU- 5 FACTURE, SALE OR DISTRIBUTION OF A CONTROLLED SUBSTANCE OR MARIHUANA. 6 OPERATING AN ILLEGAL DRUG ENTERPRISE IS A CLASS C FELONY. 7 S 7. The sum of twenty-one million dollars ($21,000,000), or so much 8 thereof as may be necessary, is hereby appropriated to the division of 9 criminal justice services, in consultation and coordination with the 10 commissioner of alcoholism and substance abuse services, the commission- 11 er of corrections and community supervision, and the director of the 12 office of probation and correctional alternatives, out of any moneys in 13 the state treasury in the general fund to the credit of the state 14 purposes account not otherwise appropriated, for carrying out the 15 provisions of this act. Such sum shall be payable on the audit and 16 warrant of the state comptroller on vouchers certified or approved by 17 the commissioner of the division of criminal justice services, or his or 18 her duly designated representative in the manner provided by law. No 19 expenditure shall be made from this appropriation until a certificate of 20 approval of availability shall have been issued by the director of the 21 budget and filed with the state comptroller and a copy filed with the 22 chairperson of the senate finance committee and the chairperson of the 23 assembly ways and means committee. Such certificate may be amended from 24 time to time by the director of the budget and a copy of each such 25 amendment shall be filed with the state comptroller, the chairperson of 26 the senate finance committee and the chairperson of the assembly ways 27 and means committee. 28 S 8. This act shall take effect on the first of November next succeed- 29 ing the date on which it shall have become a law; provided that the 30 amendments to subdivision 2 of section 70.06 of the penal law made by 31 section four of this act shall be subject to the expiration and rever- 32 sion of such subdivision pursuant to section 74 of chapter 3 of the laws 33 of 1995, as amended, when upon such date the provisions of section five 34 of this act shall take effect.