(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.