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 › 216.00 - Definitions.

§ 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 one hundred seventy-nine, two hundred
twenty or two hundred twenty-two of the penal law, an offense defined in
sections 105.10 and 105.13 of the penal law provided that the underlying
crime for the conspiracy charge is a class B, C, D or E  felony  offense
defined  in  article one hundred seventy-nine, two hundred twenty or two
hundred twenty-two of the penal law, auto stripping in the second degree
as defined in section 165.10 of the penal law,  auto  stripping  in  the
first  degree  as  defined  in section 165.11 of the penal law, identity
theft in the second degree as defined in section  190.79  of  the  penal
law,  identity theft in the first degree as defined in section 190.80 of
the penal law, or any other specified offense as defined in  subdivision
five  of  section 410.91 of this chapter, provided, however, a defendant
is not an "eligible defendant" if he or she:
* NB Effective until July 5, 2028
* "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-two  of  the penal law, an offense defined in sections 105.10 and
105.13 of the penal law provided  that  the  underlying  crime  for  the
conspiracy  charge  is  a  class  B, C, D or E felony offense defined in
article two hundred twenty or two hundred twenty-two of the  penal  law,
auto  stripping in the second degree as defined in section 165.10 of the
penal law, auto stripping in the first  degree  as  defined  in  section
165.11  of the penal law, identity theft in the second degree as defined
in section 190.79 of the penal law, identity theft in the  first  degree
as  defined  in  section 190.80 of the penal law, or any other specified
offense as defined  in  subdivision  five  of  section  410.91  of  this
chapter,  provided,  however, a defendant is not an "eligible defendant"
if he or she:
* NB Effective July 5, 2028
(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 use 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 use
disorder, or by an addiction and substance abuse counselor  credentialed
by  the  office  of  addiction services and supports 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  use disorder, as such terms are defined in the diagnostic
and statistical  manual  of  mental  disorders,  fifth  edition,  and  a
co-occurring  mental  disorder  or  mental  illness and the relationship
between such use and mental disorder or mental illness, if any;
(b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
substance  use,  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  use  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.