Section 216.00. Definitions

The following definitions are applicable to this article:
    1.  "Eligible  defendant"  means  any  person who stands charged in an
  indictment or a superior court information with a class B,  C,  D  or  E
  felony  offense  defined  in  article  two hundred twenty or two hundred
  twenty-one of the penal law or any other specified offense as defined in
  subdivision four of section 410.91 of this chapter, provided, however, a
  defendant is not an "eligible defendant" if he or she:
    (a) within the preceding ten years, excluding any  time  during  which
  the  offender  was  incarcerated  for  any  reason  between  the time of
  commission of the previous felony and the  time  of  commission  of  the
  present  felony,  has previously been convicted of: (i) a violent felony
  offense as defined in section 70.02 of the penal law or (ii)  any  other
  offense  for  which  a merit time allowance is not available pursuant to
  subparagraph (ii) of paragraph (d) of subdivision one of  section  eight
  hundred  three  of the correction law, or (iii) a class A felony offense
  defined in article two hundred twenty of the penal law; or
    (b) has previously been adjudicated a second violent  felony  offender
  pursuant  to  section  70.04  of  the  penal law or a persistent violent
  felony offender pursuant to section 70.08 of the penal law.
    A defendant who also stands charged with a violent felony  offense  as
  defined  in section 70.02 of the penal law or an offense for which merit
  time allowance  is  not  available  pursuant  to  subparagraph  (ii)  of
  paragraph  (d)  of subdivision one of section eight hundred three of the
  correction law for which the court must, upon the defendant's conviction
  thereof, sentence the defendant to incarceration in state prison is  not
  an eligible defendant while such charges are pending. A defendant who is
  excluded  from the judicial diversion program pursuant to this paragraph
  or paragraph (a) or (b) of  this  subdivision  may  become  an  eligible
  defendant upon the prosecutor's consent.
    2. "Alcohol and substance abuse evaluation" means a written assessment
  and   report   by  a  court-approved  entity  or  licensed  health  care
  professional experienced in  the  treatment  of  alcohol  and  substance
  abuse,  or by an addiction and substance abuse counselor credentialed by
  the office of  alcoholism  and  substance  abuse  services  pursuant  to
  section 19.07 of the mental hygiene law, which shall include:
    (a) an evaluation as to whether the defendant has a history of alcohol
  or substance abuse or alcohol or substance dependence, as such terms are
  defined  in  the  diagnostic and statistical manual of mental disorders,
  fourth edition, and a co-occurring mental disorder or mental illness and
  the relationship between such abuse or dependence and mental disorder or
  mental illness, if any;
    (b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
  substance abuse or dependence, if any, could be effectively addressed by
  judicial diversion in accordance with this article;
    (c)  a  recommendation as to the treatment modality, level of care and
  length of any proposed treatment to effectively address the  defendant's
  alcohol  or  substance  abuse  or dependence and any co-occurring mental
  disorder or illness; and
    (d) any other information,  factor,  circumstance,  or  recommendation
  deemed relevant by the assessing entity or specifically requested by the
  court.
    * NB Effective October 7, 2009