Drug Law Reform Provisions in NYS Budget Bill

Drug Law Reform Provisions in NYS Budget Bill

Table of Contents:
Section 1: Inpatient Substance Abuse Treatment
Section 2: Shock Incarceration
Section 3: Conditional Sealing
Section 4: Judicial Diversion Program (JDP) for Certain Felony Offenders
Section 5: Interim Probation Supervision
Section 6: Parole Eligibility for Certain B-level Drug Offenders
Section 7: Judicial Discretion to Sentence D-Level Felony Offenders to Parole Supervision
Section 8: Eligibility for Parole Supervision-Additional Offense Category
Section 9: Motion for Resentencing
Section 10: Leave to Appeal
Section 11: Major Trafficker Provision
Section 12: Discretionary Release on Parole
Section 13: Conditional Release and Release to Post-Release Supervision
Section 14: Employment Discrimination
Section 14-a: Research & Analysis
Section 15: Assigning JDP Cases to Certain Courts
Section 16: OASAS Standards
Section 17: Exclusions for Convictions for Sale of Drugs to ChildSection 18: Shock Incarceration Provision
Section 19: Eligibility for Probation Upon Consent of Prosecutor
Section 20: Excludes Second Felony B-Offenders from Probation Sentences Eligibility
Section 21: Excluding Certain Felony Offenders from Sentence Reductions
Section 22: Sentencing Technical Change
Section 23: Alternative Definite Sentences for Certain B-Level Felony Offenders
Section 24: Probation Sentences for Second Felony Drug Offenders
Section 25: Alternative Sentences for C, D, E Felonies
Section 26: Sentencing for Major Trafficker
Section 27: Kingpin Crimes
Section 28: Criminal Sale of a Controlled Substance to a Child
Section 29: Operating as a Major Trafficker
Section 30: Adding Operation as a Major Trafficker to Existing Statutes
Section 31: Adding Operation as a Major Trafficker to Existing Statutes
Section 32: Severability Provision
Section 33: Effective Dates

Section 1: Inpatient Substance Abuse Treatment

  • Inpatient substance abuse treatment will be provided for those (1) otherwise eligible for temporary release (2) charged with 220 or 221 (drug) offenses; (3) within 6 months of eligibility under current law. Treatment to be provided at a medium-security residential program run by DOCs or otherwise approved. Program to be run in accordance with DOCS minimum standards, in consultation with NYS OASAS.
  • If someone completes six months of treatment in one of DOCs eight facilities, s/he can be transferred to a residential treatment facility (except for 2nd B felony offenders) for the duration of the sentence imposed.
  • Commissioner required to give efficacy report to the legislature which should include:
    • Comparison between state operated and private treatment;
    • Recidivism; and
    • Numbers of those placed in treatment, numbers of those not, and reasons for not placing in treatment.

Section 2: Shock Incarceration

This provision applies to judicially-ordered shock incarceration, and certain conditions that would apply to an inmate where a screening committee may determine whether an inmate has a medical or mental health condition that would render the inmate unable to successfully complete the program.

Section 3: Conditional Sealing

  • Those convicted of certain drug- or parole-eligible offenses are eligible to apply for sealing of their criminal records if they:
  1. successfully completed judicial diversion program (JDP), DTAP, or another court-ordered drug treatment program; and
  2. completed their sentence.
  • Judge or defendant can make a motion to have all records (arrest, prosecution and conviction) conditionally sealed, and court can conditionally seal all records for no more than three prior drug-related misdemeanor offenses.
  • Court can only seal when:
    • sentencing court gets criminal history on defendant from all jurisdictions where convicted in the past;
    • all misdemeanor sentences completed; and
    • court notifies DAs in all jurisdictions.
  • DA must also be given opportunity to comment and submit papers within no less than 30 days.
  • Upon motion of defendant or DA, court can conduct a hearing, and consider a number of factors including:
    • the circumstances and seriousness of offenses;
    • the character of defendant, including completion of treatment;
    • the defendant's criminal history; and
    • the impact of sealing on reentry, rehabilitation, and public safety.
  • When sealing is ordered, all papers are sealed and not available to any public or private agency.
  • Records are available to:
    • defendant;
    • qualified agencies already defined in 835(9) of N.Y. Executive Law and federal and state law enforcement;
    • any state or local gun licensing agency;
    • prospective law enforcement employer, but such applicant is afforded opportunity to explain.
  • Sealing exceptions: If the person whose records are sealed is subsequently arrested and charged with a misdemeanor or felony offense, his or her records are unsealed immediately and remain unsealed unless the proceeding is terminated in favor of the accused, or s/he is ultimately convicted of a non-criminal offense.

Section 4: Judicial Diversion Program (JDP) for Certain Felony Offenders

Creates a new Article 216

A. Definitions:

  1. Eligible for JDP: All drug offenders who are B-level and below, plus those charged with offenses that are currently parole-eligible UNLESS:
  • within preceding 10 years (excluding any time spent incarcerated), the person was convicted of a
    • violent felony offense (70.02)
    • any other offense where merit time is not allowed (those convicted of sex offenses and non-drug A1 felons); OR
    • previously adjudicated a second violent felony offender; OR
    • if a violent felony offense is pending.

BUT, a person can be deemed eligible if the prosecutor consents.

  1. Alcohol and substance abuse evaluation is defined as a written assessment and report by a court-appointed entity or licensed health care professional experienced in the treatment of alcohol or substance abuse or by OASAS-certified counselor (CASAC), including:
  • an evaluation of history of substance abuse or alcohol or substance dependence in accordance with DSM IV and co-occurring mental disorder or mental illness if any;
  • a recommendation as to whether a substance abuse dependence could be effectively addressed by judicial diversion;
  • a recommendation of treatment modality; level of care, length of proposed treatment time; and
  • any other information deemed to be relevant.

B. Procedure

  • Any time between arraignment and guilty plea or commencement of trial, the court, at the request of an eligible defendant, may order an alcohol and substance abuse evaluation.
  • Eligible defendants can decline to participate in the assessment.
  • Defendant must provide written authorization regarding disclosure of results of assessment; release of assessment results to be used for the sole purposes of JDP.
  • Upon receipt, court gives assessment report to eligible defendant and prosecution.
  • Either party may request a hearing regarding whether the defendant should be offered treatment.
  • Hearing held as soon as possible for the purposes of early intervention and can include:
    • oral and written arguments;
    • testimony from witnesses by either party;
    • other evidence, including prior incarceration (within the past 10 years) or youthful offender adjudication for violent felony offense or for any other offense that would not be eligible for merit time; and
    • any statement by the victim.
  • At the end of the process, the court issues a fact finding that will include:
    • Is defendant an eligible offender?
    • Defendant's criminal history;
    • Is substance abuse a contributing factor to criminal behavior?
    • Could participation in diversion be effective in addressing substance abuse dependency?
    • Whether or not institutional confinement may be required for public protection.
  • When court agrees OR when parties agree that treatment should be offered, defendant is allowed to participate in JDP.

C. Guilty Plea

  • Defendant is required to enter a guilty plea in order to participate, except where:
    • DA and court consent to order to treatment without plea agreement; OR
    • Based on exceptional circumstances, where court determines that plea of guilt is not required.
  • Exceptional circumstances exist where taking a plea is likely to result in severe collateral consequences.
  • Defendant shall agree in writing to conditions set by the court, including agreement to:
    • participate in a specified period of alcohol or substance abuse treatment at a program approved by the court, which could include detoxification, a residential or outpatient treatment program or combination thereof, after consultation with health professional who did the original assessment, or any other health care professional who will be responsible for providing treatment or monitoring the defendant's progress;
    • periodic court appearances, which can include urinalysis;
    • refrain from committing another criminal offense.
  • Upon agreement, the court can issue an order providing for bail or release (ROR), and commencement of treatment ASAP, considering the availability of treatment and the need for early intervention.
  • If the defendant is self-insured or otherwise insured, that insurance should pay for treatment.
  • During participation, the court retains jurisdiction over the defendant.
  • Failure to appear in court constitutes a violation.
  • If court has reasonable ground to believe that a defendant has violated the conditions of the agreement, court can order the defendant to appear, issue a bench warrant for arrest, and/or revoke bail.

D. Determination of Violation

  • Court can conduct a summary hearing consistent with due process.
  • If court determines that a defendant has violated the provisions of JDP, the court can modify the conditions, reconsider or terminate participation in JDP, and proceed with sentencing and impose a sentence authorized by the plea agreement OR any lesser sentence authorized to be imposed on a felony drug defendant, taking into consideration the time spent in residential treatment and the need for treatment while the defendant is incarcerated.
  • When considering how to handle a violation, the court shall consider all relevant circumstances, including the views of the DA, defendant, and substance abuse treatment provider, and the fact that people who ultimately successfully complete treatment sometimes relapse
  • Court should consider graduated and appropriate responses to address substance abuse, public safety, and to facilitate completion of treatment.
  • Court is not prohibited from taking the harshest steps when a defendant violates terms, in the interest of public safety.
  • Defendant can terminate his/her participation in JDP and be subject to an authorized sentence, and judge can take into consideration time spent in treatment.

Section 5: Interim Probation Supervision

Where a defendant is otherwise eligible, the court can adjourn sentencing and order a defendant to interim probation supervision upon consent of defendant and in consultation with the prosecutor. Sentencing cannot be adjourned for more than a year, except upon good cause; and with defendant's consent, an additional one year can be ordered if the defendant agrees to and is still participating in treatment.

Section 6: Parole Eligibility for Certain B-level Drug Offenders

The Criminal Procedure Law disqualifies certain offenders from eligibility for parole supervision; this section would make an exception for B-level felony offenders who are charged with drug crimes so that a judge could order this limited class of offenders to parole supervision.

Section 7: Judicial Discretion to Sentence D-Level Felony Offenders to Parole Supervision

This section eliminates the requirement that DAs must consent to D-level felony offenders being sentenced to parole supervision instead of prison. Judges will now have the ability to make that determination on a case-by-case basis.

Section 8: Eligibility for Parole Supervision-Additional Offense Category

This section adds the offense of burglary in the third degree to those offenses that are eligible for a sentence of parole supervision.

Section 9: Motion for Resentencing

  • Adds section 440.46 to the Criminal Procedure Law: Motion for Resentencing such that:
    • Anyone incarcerated for a Class B offense committed before 2005 serving an indeterminate sentence with a maximum term of more than 3 years may (with exceptions and upon notice to DA), apply to be resentenced.
    • Defendant may move to be resentenced for any one or more Class C, D, or E drug offenses.
    • The following categories of offenders are ineligible for resentencing:
      • those who were convicted of a violent felony within the past 10 years; and
      • those charged with offenses that are merit ineligible (sex offenses, non-drug A1-level offenses).

Section 10: Leave to Appeal

This provision allows those who are denied resentencing under Section 9 of the reform legislation to appeal that denial.

Section 11: Major Trafficker Provision

This provision would add the new crime of Major Trafficker (defined in Section 29 of the bill) to the list of offenses for which a judge can issue a warrant for eavesdropping and surveillance for investigative purposes.

Section 12: Discretionary Release on Parole

Provides that a court needs to consider the length of the determinate sentence to which the inmate would be subject to had he or she received a sentence for a drug offense in considering whether or not to grant a discretionary release on parole.

Section 13: Conditional Release and Release to Post-Release Supervision

Provides for conditional release and release to post-release supervision and other technical changes regarding that type of release and supervision.

Section 14: Employment Discrimination

Section 296 of the Executive Law currently prohibits discrimination on the basis of a person's arrest or prosecution history where the charge was terminated in favor of the person, the person had been adjudicated a youthful offender in the past, or where the person was convicted of a violation and the criminal record was ultimately sealed. This provision would add a prohibition of discrimination by employers in cases where convictions are sealed pursuant to the reform legislation.

Section 14-a: Research & Analysis

This provision would require the state to collect data and conduct research and analysis of the effectiveness of the JDP.

Section 15: Assigning JDP Cases to Certain Courts

  • Cases eligible for JDP are to be assigned to court parts, according to the chief administrator, by virtue of the structure of those court parts, to judges who have other drug cases, are trained, or are in the best position to provide effective supervision over such cases.
  • The Chief Administrator must give due weight to the need for diverted defendants to make regular court appearances and be closely monitored by the court.

Section 16: OASAS Standards

OASAS must monitor in-prison treatment, and issue guidelines to the Department of Corrections.

Section 17: Exclusions for Convictions for Sale of Drugs to Child

The reform laws of 2004 would be amended to exclude those convicted of sale of drugs to a child.

Section 18: Shock Incarceration Provision

  • Allows a judge to sentence drug offenders to shock incarceration.
  • If for medical or mental health reasons, the offender cannot participate in a traditional shock incarceration program, s/he would be sentenced to an alternative shock incarceration program, if s/he consents to such placement.
  • Participants in alternative shock incarceration programs are subject to the same requirements as other shock participants.

Section 19: Eligibility for Probation Upon Consent of Prosecutor

Expands eligibility for probation to those convicted of drug-related B-level felonies, but who are also second felony offenders, only upon consent of the prosecutor.

Section 20: Excludes Second Felony B-Offenders from Probation Sentences Eligibility

Allows those convicted of B-level felonies to be sentenced to probation, but only if they are not second felony offenders.

Section 21: Excluding Certain Felony Offenders from Sentence Reductions

Excludes from sentence reduction that was put in place under the 2004/5 reform legislation those who are convicted of criminal sale of a controlled substance to a child (defined in Section 28 of this bill).

Section 22: Sentencing Technical Change

Makes a non-substantive technical change to the law by adding a certain sentencing provision under which certain offenders can be sentenced.

Section 23: Alternative Definite Sentences for Certain B-Level Felony Offenders

Expands eligibility for alternative definite sentences to B-level felony offenders, except for those convicted of criminal sale of a controlled substance to a child (defined in Section 28 of this bill).

Section 24: Probation Sentences for Second Felony Drug Offenders

Allows the court to sentence a second felony drug offender convicted of a Class B felony to lifetime probation, and allows second felony drug offenders convicted of lower level felony offenses (C, D, Es) to fixed probation terms.

Section 25: Alternative Sentences for C, D, E Felonies

This provision authorizes the court to impose an alternative definite sentence for Class C, D, and E felonies if the court considers the authorized sentence to be too harsh.

Section 26: Sentencing for Major Trafficker

Provides for sentence for a major trafficker (defined in section 29 of the bill), which is the sentence that an A-I level felony offender would receive, but allows a judge to consider the circumstances to determine whether a definite sentence is too harsh.

Section 27: Kingpin Crimes

Adds subdivisions 18, 19, and 20 to section 220 of the Penal Law, defining certain "kingpin" crimes:

  1. Controlled substance organization
  2. Director
  3. Profiteer

Section 28: Criminal Sale of a Controlled Substance to a Child

Adds a new crime to the Penal Law, Criminal Sale of a Controlled Substance to a Child (new Penal Law section 220.48).

Section 29: Operating as a Major Trafficker

Adds a new crime, Operating as a Major Trafficker (new Penal Law section 220.77)

Section 30: Adding Operation as a Major Trafficker to Existing Statutes

Adds the new crime, Operating as a Major Trafficker (new Penal Law section 220.77) to lists of other serious crimes.

Section 31: Adding Operation as a Major Trafficker to Existing Statutes

Adds the new crime, Operating as a Major Trafficker (new Penal Law section 220.77) to lists of other serious crimes in addition to the ones enumerated in Section 30 of this bill.

Section 32: Severability Provision

Provides that should a court determine that any portion of this law is invalid, the rest of the law separate and apart from the invalid provision will be deemed valid.

Section 33: Effective Dates

Act will take effect immediately except for some provisions:

Section 3: 60th day after passage

Sections 4-10: 6 months after passage

Sections 11, 26, 27, 28, 29, 30, and 31: Nov. 1 after passage

Section 9: 6 months after passage, except for amendments to Criminal Procedure Law section 440.46(4), pursuant to section 9 of the Act, which shall take effect immediately.

Sections 4, 5, 6, 7, 8, 17, 19, 20, 22, 23, 24, 25: Shall apply to offenses committed on or after the date that the bill becomes law, and to those committed before provided that the sentence has not been imposed on or before such time.