2023 New York Laws › CPL - Criminal Procedure › Part 2 - The Principal Proceedings › Title I - Preliminary Proceedings in Superior Court › Article 216 - Judicial Diversion Program for Certain Felony Offenders › 216.05 - Judicial Diversion Program; Court Procedures.

§ 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  use  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 use, alcohol use
and any co-occurring mental disorder or mental illness.
2. Upon receipt of the completed alcohol and substance use  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 use 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 use 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  five  of
section  410.91  of  this  chapter, or section 165.10, 165.11, 190.79 or
190.80 of the penal law, 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 use;
(iii) such alcohol or substance use is a contributing  factor  to  the
defendant's criminal behavior;
(iv)   the  defendant's  participation  in  judicial  diversion  could
effectively address such use; 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 use treatment, or when the parties and the
court agree to an  eligible  defendant's  participation  in  alcohol  or
substance  use  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  use
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 use
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; (iii) if the defendant  needs  treatment
for  opioid use, that he or she may participate in and receive medically
prescribed drug treatments under the care of a health care  professional
licensed  or  certified  under  title eight of the education law, acting
within his or her lawful scope of practice, provided that no court shall
require the use of any specified type or brand of drug during the course
of medically prescribed drug treatments.
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  use  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  substance  use  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,
provided, however, that the court may allow such defendant to (i) reside
in  another  jurisdiction,  or (ii) participate in alcohol and substance
use treatment and other programs in the jurisdiction where the defendant
resides or in any other jurisdiction, while participating in a  judicial
diversion program under conditions set by the court and agreed to by the
defendant  pursuant  to  subdivisions  five and six of this section. 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
use  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 in an important
respect or has willfully failed to appear before the court as requested,
the court except as provided in subdivision two  of  section  510.50  of
this  chapter  regarding a failure to appear, 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;
provided, however, that under no circumstances  shall  a  defendant  who
requires  treatment  for opioid use be deemed to have violated a release
condition on  the  basis  of  his  or  her  participation  in  medically
prescribed  drug treatments under the care of a health care professional
licensed or certified under title eight of  the  education  law,  acting
within  his  or her lawful scope of practice. The relevant provisions of
section 530.60 of this chapter relating to issuance of  securing  orders
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 use 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 use 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 use 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 use 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 use treatment.