(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.