Section 216.05. Judicial diversion program; court procedures

1.  At  any  time  after the arraignment of an eligible defendant, but
  prior to the entry of a plea of guilty or the commencement of trial, the
  court at the request of the eligible defendant, may order an alcohol and
  substance  abuse  evaluation.  An  eligible  defendant  may  decline  to
  participate  in  such  an  evaluation  at  any time. The defendant shall
  provide a written authorization, in compliance with the requirements  of
  any  applicable  state or federal laws, rules or regulations authorizing
  disclosure of the results of the assessment to the defendant's attorney,
  the prosecutor, the local probation department,  the  court,  authorized
  court  personnel  and  other individuals specified in such authorization
  for the sole purpose of determining  whether  the  defendant  should  be
  offered   judicial  diversion  for  treatment  for  substance  abuse  or
  dependence, alcohol abuse or  dependence  and  any  co-occurring  mental
  disorder or mental illness.
    2.   Upon  receipt  of  the  completed  alcohol  and  substance  abuse
  evaluation report, the court shall provide a copy of the report  to  the
  eligible defendant and the prosecutor.
    3.  (a) Upon receipt of the evaluation report either party may request
  a hearing on the issue of  whether  the  eligible  defendant  should  be
  offered  alcohol  or substance abuse treatment pursuant to this article.
  At such a proceeding, which shall be held as soon as practicable  so  as
  to  facilitate  early  intervention  in  the event that the defendant is
  found to need alcohol  or  substance  abuse  treatment,  the  court  may
  consider  oral  and written arguments, may take testimony from witnesses
  offered  by  either  party,  and  may  consider  any  relevant  evidence
  including, but not limited to, evidence that:
    (i)  the  defendant  had within the preceding ten years (excluding any
  time during which the offender was incarcerated for any  reason  between
  the  time of the acts that led to the youthful offender adjudication and
  the time of commission  of  the  present  offense)  been  adjudicated  a
  youthful  offender  for:  (A)  a  violent  felony  offense as defined in
  section 70.02 of the penal law; or (B) any 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; and
    (ii)  in  the  case of a felony offense defined in subdivision four of
  section 410.91 of this chapter, any statement of  or  submitted  by  the
  victim, as defined in paragraph (a) of subdivision two of section 380.50
  of this chapter.
    (b) Upon completion of such a proceeding, the court shall consider and
  make findings of fact with respect to whether:
    (i)  the  defendant is an eligible defendant as defined in subdivision
  one of section 216.00 of this article;
    (ii) the defendant has a history of  alcohol  or  substance  abuse  or
  dependence;
    (iii)  such alcohol or substance abuse or dependence is a contributing
  factor to the defendant's criminal behavior;
    (iv)  the  defendant's  participation  in  judicial  diversion   could
  effectively address such abuse or dependence; and
    (v)  institutional  confinement  of  the  defendant  is  or may not be
  necessary for the protection of the public.
    4. When an authorized court determines, pursuant to paragraph  (b)  of
  subdivision  three of this section, that an eligible defendant should be
  offered alcohol or substance abuse treatment, or when  the  parties  and
  the  court  agree to an eligible defendant's participation in alcohol or
  substance abuse treatment, an  eligible  defendant  may  be  allowed  to
  participate  in  the judicial diversion program offered by this article.

  Prior to the court's issuing an order granting judicial  diversion,  the
  eligible  defendant  shall  be required to enter a plea of guilty to the
  charge or charges; provided, however, that no such guilty plea shall  be
  required when:
    (a)  the  people  and  the court consent to the entry of such an order
  without a plea of guilty; or
    (b) based  on  a  finding  of  exceptional  circumstances,  the  court
  determines  that a plea of guilty shall not be required. For purposes of
  this subdivision, exceptional circumstances exist  when,  regardless  of
  the  ultimate  disposition of the case, the entry of a plea of guilty is
  likely to result in severe collateral consequences.
    5. The defendant shall agree on the record or in writing to  abide  by
  the   release  conditions  set  by  the  court,  which,  shall  include:
  participation in a  specified  period  of  alcohol  or  substance  abuse
  treatment  at  a  specified program or programs identified by the court,
  which may include periods of detoxification, residential  or  outpatient
  treatment, or both, as determined after taking into account the views of
  the  health  care  professional  who conducted the alcohol and substance
  abuse evaluation and  any  health  care  professionals  responsible  for
  providing  such treatment or monitoring the defendant's progress in such
  treatment; and may include: (i) periodic court  appearances,  which  may
  include  periodic  urinalysis;  (ii)  a  requirement  that the defendant
  refrain from engaging in criminal behaviors.
    6. Upon an eligible defendant's agreement to abide by  the  conditions
  set  by  the court, the court shall issue a securing order providing for
  bail or release on the defendant's own recognizance and conditioning any
  release upon the agreed  upon  conditions.  The  period  of  alcohol  or
  substance  abuse  treatment shall begin as specified by the court and as
  soon as practicable after the defendant's release, taking  into  account
  the  availability  of  treatment, so as to facilitate early intervention
  with respect to the defendant's abuse or condition and the effectiveness
  of the treatment program. In the event that a treatment program  is  not
  immediately  available  or  becomes unavailable during the course of the
  defendant's participation in the judicial diversion program,  the  court
  may release the defendant pursuant to the securing order.
    7. When participating in judicial diversion treatment pursuant to this
  article,  any  resident  of  this  state  who is covered under a private
  health insurance policy or contract issued for delivery  in  this  state
  pursuant  to  article  thirty-two,  forty-three  or  forty-seven  of the
  insurance law or article forty-four of the public health law, or who  is
  covered  by a self-funded plan which provides coverage for the diagnosis
  and treatment of chemical abuse and chemical dependence however  defined
  in  such  policy;  shall  first seek reimbursement for such treatment in
  accordance with the provisions of such policy or contract.
    8. During the period of a defendant's participation  in  the  judicial
  diversion program, the court shall retain jurisdiction of the defendant.
  The  court  may  require the defendant to appear in court at any time to
  enable the court to monitor  the  defendant's  progress  in  alcohol  or
  substance  abuse  treatment.  The court shall provide notice, reasonable
  under the circumstances, to the  people,  the  treatment  provider,  the
  defendant  and  the  defendant's counsel whenever it orders or otherwise
  requires the appearance of the defendant in court. Failure to appear  as
  required  without reasonable cause therefor shall constitute a violation
  of the conditions of the court's agreement with the defendant.
    9. (a) If at any time during  the  defendant's  participation  in  the
  judicial  diversion program, the court has reasonable grounds to believe
  that the defendant has violated a release condition  or  has  failed  to
  appear  before  the  court  as  requested,  the  court  shall direct the

  defendant to appear or issue a bench warrant to a police officer  or  an
  appropriate  peace  officer  directing  him or her to take the defendant
  into  custody  and  bring  the  defendant  before  the   court   without
  unnecessary  delay.  The provisions of subdivision one of section 530.60
  of this chapter relating to revocation of  recognizance  or  bail  shall
  apply to such proceedings under this subdivision.
    (b)  In determining whether a defendant violated a condition of his or
  her release under the judicial diversion program, the court may  conduct
  a  summary hearing consistent with due process and sufficient to satisfy
  the court that the defendant has, in fact, violated the condition.
    (c) If  the  court  determines  that  the  defendant  has  violated  a
  condition  of  his  or her release under the judicial diversion program,
  the court may modify the conditions thereof,  reconsider  the  order  of
  recognizance  or  bail  pursuant to subdivision two of section 510.30 of
  this chapter, or terminate the defendant's participation in the judicial
  diversion program; and when  applicable  proceed  with  the  defendant's
  sentencing   in  accordance  with  the  agreement.  Notwithstanding  any
  provision of law to the contrary, the  court  may  impose  any  sentence
  authorized  for  the  crime  of  conviction  in accordance with the plea
  agreement, or any lesser sentence authorized to be imposed on  a  felony
  drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
  section 70.70 of the penal law taking into account the  length  of  time
  the  defendant  spent  in residential treatment and how best to continue
  treatment while the defendant is serving that sentence.  In  determining
  what  action  to  take for a violation of a release condition, the court
  shall consider all relevant circumstances, including the  views  of  the
  prosecutor,  the  defense  and  the alcohol or substance abuse treatment
  provider, and the extent to which persons  who  ultimately  successfully
  complete  a  drug  treatment regimen sometimes relapse by not abstaining
  from alcohol or substance abuse or by failing to comply fully  with  all
  requirements  imposed  by  a  treatment  program.  The  court shall also
  consider using a  system  of  graduated  and  appropriate  responses  or
  sanctions  designed  to  address  such  inappropriate behaviors, protect
  public safety and facilitate, where possible, successful  completion  of
  the alcohol or substance abuse treatment program.
    (d)  Nothing  in  this  subdivision shall be construed as preventing a
  court from terminating  a  defendant's  participation  in  the  judicial
  diversion  program  for  violating  a  release  condition  when  such  a
  termination is necessary to preserve public safety. Nor  shall  anything
  in  this  subdivision  be  construed  as precluding the prosecution of a
  defendant for the commission of a different offense while  participating
  in the judicial diversion program.
    (e) A defendant may at any time advise the court that he or she wishes
  to  terminate  participation in the judicial diversion program, at which
  time the court shall proceed with the case and, where applicable,  shall
  impose  sentence  in accordance with the plea agreement. Notwithstanding
  any provision of law to the contrary, the court may impose any  sentence
  authorized  for  the  crime  of  conviction  in accordance with the plea
  agreement, or any lesser sentence authorized to be imposed on  a  felony
  drug  offender  pursuant  to  paragraph (b) or (c) of subdivision two of
  section 70.70 of the penal law taking into account the  length  of  time
  the  defendant  spent  in residential treatment and how best to continue
  treatment while the defendant is serving that sentence.
    10. Upon the court's determination that the defendant has successfully
  completed the required period of alcohol or  substance  abuse  treatment
  and  has  otherwise  satisfied  the  conditions  required for successful
  completion of the judicial diversion program,  the  court  shall  comply
  with  the  terms  and  conditions  it  set for final disposition when it

  accepted the  defendant's  agreement  to  participate  in  the  judicial
  diversion  program. Such disposition may include, but is not limited to:
  (a) requiring the defendant to undergo a  period  of  interim  probation
  supervision  and,  upon  the  defendant's  successful  completion of the
  interim probation supervision term, notwithstanding the provision of any
  other law, permitting the defendant to withdraw his or her  guilty  plea
  and dismissing the indictment; or (b) requiring the defendant to undergo
  a   period   of  interim  probation  supervision  and,  upon  successful
  completion of the interim probation  supervision  term,  notwithstanding
  the provision of any other law, permitting the defendant to withdraw his
  or  her  guilty  plea,  enter a guilty plea to a misdemeanor offense and
  sentencing the defendant as promised in the plea  agreement,  which  may
  include  a  period of probation supervision pursuant to section 65.00 of
  the penal law; or (c) allowing the defendant  to  withdraw  his  or  her
  guilty plea and dismissing the indictment.
    11.  Nothing  in  this  article  shall  be construed as restricting or
  prohibiting  courts  or  district  attorneys  from  using  other  lawful
  procedures  or  models  for  placing appropriate persons into alcohol or
  substance abuse treatment.
    * NB Effective October 7, 2009