Legal Research

New York Legislation: Part AAA of New York Chapter Law 59 of 2009

By David Badertscher, PLL

The following is that part of Chapter Law 56 2009 of the State of New York which relates to Rockefeller drug reform legislation. Chapter Law 56  (A156-A/S56A) was signed by the Governor on December 7, 2009.

PART AAA

     Section 1.  Subdivision 18 of section 2  of  the  correction  law,  as
   amended  by  chapter  738  of  the  laws  of 2004, is amended to read as
   follows:
     18. "Alcohol and substance  abuse  treatment  correctional  annex."  A
   medium security correctional facility consisting of one or more residen-
   tial  dormitories  which  provide  intensive alcohol and substance abuse
   treatment services to inmates who: (i) are otherwise eligible for tempo-
   rary release, or (ii) stand convicted of a felony defined in article two
   hundred twenty or two hundred twenty-one of the penal law, and are with-
   in six months of being an eligible inmate as that  term  is  defined  in
   subdivision  two  of  section  eight  hundred  fifty-one of this chapter
   including such inmates who are participating in such program pursuant to
   subdivision six of section 60.04 of the penal law.  Notwithstanding  the
   foregoing  provisions  of this subdivision, any inmate to be enrolled in
   this program pursuant to subdivision six of section 60.04 of  the  penal
   law  shall  be governed by the same rules and regulations promulgated by
   the department, including without limitation those rules and regulations
   establishing requirements for completion and those rules and regulations
   governing discipline and removal from the program.  No  such  period  of
   court  ordered  corrections  based drug abuse treatment pursuant to this
   subdivision shall be required to extend beyond  the  defendant's  condi-
   tional  release  date. Such treatment services may be provided by one or
   more outside service providers pursuant to contractual  agreements  with
   both  the department and the division of parole, provided, however, that
   any such provider shall be  required  to  continue  to  provide,  either
   directly  or  through formal or informal agreement with other providers,
   alcohol and substance abuse  treatment  services  to  inmates  who  have
   successfully  participated  in  such  provider's incarcerative treatment
   services and who have been paroled or conditionally released  under  the
   supervision  of  the  division  of parole and who are, as a condition of
   their parole or conditional release, required to participate in  alcohol
   or  substance  abuse  treatment.  Such  incarcerative  services shall be
   provided in the facility in accordance with minimum standards promulgat-
   ed by the department after consultation with the  office  of  alcoholism
   and  substance  abuse  services.  Such  services  to  parolees  shall be
   provided in accordance with standards promulgated  by  the  division  of
   parole  after  consultation  with the office of alcoholism and substance
   abuse services. Notwithstanding any other provision of law,  any  person
   who  has  successfully  completed  no  less than six months of intensive
   alcohol and substance abuse treatment services in  one  of  the  depart-
   ment's  eight  designated  alcohol and substance abuse treatment correc-
   tional annexes having a combined total capacity  of  two  thousand  five

   CHAP. 56                          114
 
   hundred  fifty  beds may be transferred to a program operated by or at a
   residential treatment facility, provided however, that a person under  a
   determinate  sentence  as  a  second  felony drug offender for a class B
   felony  offense  defined in article two hundred twenty of the penal law,
   who was sentenced pursuant to section 70.70 of such law,  shall  not  be
   eligible to be transferred to a program operated at a residential treat-
   ment  facility  until  the time served under imprisonment for his or her
   determinate sentence, including any jail time credited pursuant to  [the
   provisions of article seventy] subdivision three of section 70.30 of the
   penal  law,  shall  be at least [eighteen] nine months. The commissioner
   shall report annually to the temporary president of the senate  and  the
   speaker of the assembly commencing January first, nineteen hundred nine-
   ty-two  as to the efficacy of such programs including but not limited to
   a comparative analysis of state-operated and private sector provision of
   treatment services and recidivism. Such report shall  also  include  the
   number of inmates received by the department during the reporting period
   who  are  subject  to  a sentence which includes enrollment in substance
   abuse treatment in accordance with subdivision six of section  60.04  of
   the  penal  law,  the  number of such inmates who are not placed in such
   treatment program and the reasons for such occurrences.
     § 2. Section 867 of the correction law is  amended  by  adding  a  new
   subdivision 2-a to read as follows:
     2-a.  Subdivisions  one and two of this section shall apply to a judi-
cially sentenced shock incarceration inmate only to the extent that  the
screening  committee  may  determine whether the inmate has a medical or
mental health condition that will render the inmate unable  to  success-
fully  complete  the  shock  incarceration  program, and the facility in
which the inmate  will  participate  in  such  program.  Notwithstanding
subdivision five of this section, an inmate sentenced to shock incarcer-
ation  shall  promptly  commence  participation in the program when such
inmate is an eligible inmate pursuant  to  subdivision  one  of  section
eight  hundred sixty-five of this article.
     §  3.  The  criminal  procedure law is amended by adding a new section
   160.58 to read as follows:
   § 160.58 Conditional sealing of certain controlled substance,  marihuana
or specified offense convictions.
1. A defendant convicted of any offense defined in article two hundred
twenty or two hundred twenty-one of the penal law or a specified offense
defined  in  subdivision  five of section 410.91 of this chapter who has
successfully completed a judicial diversion program  under  article  two
hundred sixteen of this chapter, or one of the programs heretofore known
as drug treatment alternative to prison or another judicially sanctioned
drug  treatment  program  of similar duration, requirements and level of
supervision, and has completed the sentence imposed for the  offense  or
offenses,  is  eligible to have such offense or offenses sealed pursuant
to this section.
2. The court that sentenced the defendant to a  judicially  sanctioned
drug  treatment  program  may  on  its own motion, or on the defendant's
motion, order that all official  records  and  papers  relating  to  the
arrest,  prosecution  and  conviction  which resulted in the defendant's
participation in the judicially sanctioned  drug  treatment  program  be
conditionally  sealed.    In such case, the court may also conditionally
seal the arrest, prosecution and conviction records  for  no  more  than
three of the defendant's prior eligible misdemeanors, which for purposes
of  this subdivision shall be limited to misdemeanor offenses defined in
article two hundred twenty or two hundred twenty-one of the  penal  law.

                                     115                           CHAP. 56
 
   The  court  may only seal the records of the defendant's arrests, prose-
cutions and convictions when:
(a)  the sentencing court has requested and received from the division
of criminal justice services or the Federal Bureau  of  Investigation  a
fingerprint  based  criminal  history record of the defendant, including
any sealed or suppressed information. The division of  criminal  justice
services  shall also include a criminal history report, if any, from the
Federal Bureau of Investigation regarding any criminal history  informa-
tion  that  occurred  in  other  jurisdictions.  The  division is hereby
authorized to receive such information from the Federal Bureau of Inves-
tigation for this purpose. The parties shall  be  permitted  to  examine
these records;
(b)  the  defendant or court has identified the misdemeanor conviction
or convictions for which relief may be granted;
(c) the court has received documentation that the sentences imposed on
the eligible misdemeanor convictions have been completed, or if no  such
documentation  is  reasonably  available,  a  sworn  affidavit  that the
sentences imposed on the prior misdemeanors have been completed; and
(d) the court has notified the district attorney of each  jurisdiction
in  which the defendant has been convicted of an offense with respect to
which sealing is sought, and the court or  courts  of  record  for  such
offenses,  that  the  court  is  considering  sealing the records of the
defendant's eligible misdemeanor convictions. Both the district attorney
and the court shall be given a reasonable opportunity, which  shall  not
be  less  than  thirty days, in which to comment and submit materials to
aid the court in making such a determination.
3. At the request of the defendant or the district attorney of a coun-
ty in which the defendant committed a crime that is the subject  of  the
sealing  application,  the  court  may conduct a hearing to consider and
review any relevant evidence offered by either party that would aid  the
court  in  its  decision  whether to seal the records of the defendant's
arrests, prosecutions and convictions. In making such  a  determination,
the court shall consider any relevant factors, including but not limited
to:  (i)  the  circumstances  and seriousness of the offense or offenses
that resulted in the conviction or convictions; (ii)  the  character  of
the  defendant,  including his or her completion of the judicially sanc-
tioned treatment  program  as  described  in  subdivision  one  of  this
section;  (iii) the defendant's criminal history; and (iv) the impact of
sealing the defendant's records upon his or her rehabilitation  and  his
or her successful and productive reentry and reintegration into society,
and on public safety.
4.  When a court orders sealing pursuant to this section, all official
records  and  papers  relating  to  the   arrests,   prosecutions,   and
convictions,  including  all duplicates and copies thereof, on file with
the division of criminal justice services or any court shall  be  sealed
and  not  made  available  to  any  person  or public or private agency;
provided, however, the division shall  retain  any  fingerprints,  palm-
prints and photographs, or digital images of the same.
5.  When  the court orders sealing pursuant to this section, the clerk
of such court shall immediately notify the commissioner of the  division
of criminal justice services, and any court that sentenced the defendant
for  an  offense  which  has  been  conditionally  sealed, regarding the
records that shall be sealed pursuant to this section.
6. Records sealed pursuant to this subdivision shall be made available
to:
(a) the defendant or the defendant's designated agent;

   CHAP. 56                          116
 
     (b) qualified agencies, as defined  in  subdivision  nine  of  section
eight  hundred  thirty-five  of the executive law, and federal and state
law enforcement agencies, when acting within  the  scope  of  their  law
enforcement duties; or
(c)  any  state or local officer or agency with responsibility for the
issuance of licenses to possess guns, when the person has made  applica-
tion for such a license; or
(d)  any  prospective employer of a police officer or peace officer as
those terms are defined in subdivisions thirty-three and thirty-four  of
section  1.20 of this chapter, in relation to an application for employ-
ment as a police officer or peace officer; provided, however, that every
person who is an applicant for the position of police officer  or  peace
officer  shall  be  furnished  with a copy of all records obtained under
this paragraph and afforded an opportunity to make an explanation there-
to.
7. The court shall not seal the defendant's record  pursuant  to  this
section while any charged offense is pending.
8.  If, subsequent to the sealing of records pursuant to this subdivi-
sion, the person who is the subject of such records is arrested  for  or
formally  charged  with  any misdemeanor or felony offense, such records
shall be unsealed immediately and remain  unsealed;  provided,  however,
that  if  such new misdemeanor or felony arrest results in a termination
in favor of the accused as  defined  in  subdivision  three  of  section
160.50  of  this  article or by conviction for a non criminal offense as
described in section 160.55 of this article, such unsealed records shall
be conditionally sealed pursuant to this section.
     § 4. The criminal procedure law is amended by adding a new article 216
   to read as follows:
                                  ARTICLE 216
JUDICIAL DIVERSION PROGRAM FOR CERTAIN FELONY
OFFENDERS
Section 216.00 Definitions.
216.05 Judicial diversion program; court procedures.
§ 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 two  hundred  twenty  or  two  hundred
twenty-one of the penal law or any other specified offense as defined in
subdivision four of section 410.91 of this chapter, provided, however, a
defendant is not an "eligible defendant" if he or she:
(a)  within  the  preceding ten years, excluding any time during which
the offender was incarcerated for any reason between the time of commis-
sion 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 subpara-
graph (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 felo-
ny 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 para-

                                     117                           CHAP. 56
 
   graph (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  para-
graph or paragraph (a) or (b) of this subdivision may become an eligible
defendant upon the prosecutor's consent.
2. "Alcohol and substance abuse evaluation" means a written assessment
and  report  by  a court-approved entity or licensed health care profes-
sional experienced in the treatment of alcohol and substance  abuse,  or
by an addiction and substance abuse counselor credentialed by the office
of  alcoholism and substance abuse services 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 abuse or alcohol or substance dependence, as such terms are
defined in the diagnostic and statistical manual  of  mental  disorders,
fourth edition, and a co-occurring mental disorder or mental illness and
the relationship between such abuse or dependence and mental disorder or
mental illness, if any;
(b)  a  recommendation  as  to  whether  the  defendant's  alcohol  or
substance abuse or dependence, 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 abuse or dependence  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.
§ 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 abuse evaluation. An eligible defendant may decline to partic-
ipate  in such an evaluation at any time.  The defendant shall provide a
written authorization, in compliance with the requirements of any appli-
cable state or federal laws, rules or regulations authorizing disclosure
of the results of the assessment to the defendant's attorney, the prose-
cutor, 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 abuse or dependence,
alcohol abuse or dependence and  any  co-occurring  mental  disorder  or
mental illness.
2.  Upon  receipt  of the completed alcohol and substance abuse evalu-
ation report, the court shall provide a copy of the report to the eligi-
ble 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 abuse 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  abuse  treatment, the court may
consider oral and written arguments, may take testimony  from  witnesses
offered  by either party, and may consider any relevant evidence includ-
ing, but not limited to, evidence that:

   CHAP. 56                          118
 
     (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 youth-
ful  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 allow-
ance 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  four  of
section  410.91  of  this  chapter, 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 abuse or
dependence;
(iii) such alcohol or substance abuse or dependence is a  contributing
factor to the defendant's criminal behavior;
(iv)  the defendant's participation in judicial diversion could effec-
tively address such abuse or dependence; and
(v) institutional confinement of the defendant is or may not be neces-
sary 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 abuse treatment, or when  the  parties  and
the  court  agree to an eligible defendant's participation in alcohol or
substance abuse 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  deter-
mines  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 like-
ly 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:  partic-
ipation in a specified period of alcohol or substance abuse 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 abuse evalu-
ation 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.
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

                                     119                           CHAP. 56
 
   bail or release on the defendant's own recognizance and conditioning any
release  upon  the  agreed  upon  conditions.  The  period of alcohol or
substance abuse 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 abuse 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 insur-
ance 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.
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  abuse 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 or has failed to
appear before the court as requested, the court shall direct the defend-
ant to appear or issue a bench warrant to a police officer or an  appro-
priate  peace  officer  directing  him or her to take the defendant into
custody and bring the defendant before  the  court  without  unnecessary
delay. The provisions of subdivision one of section 530.60 of this chap-
ter  relating  to revocation of recognizance or bail 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 condi-
tion of his or her release under the  judicial  diversion  program,  the
court  may modify the conditions thereof, reconsider the order of recog-
nizance 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

   CHAP. 56                          120
 
   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 abuse 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 abuse 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  sanc-
tions  designed  to address such inappropriate behaviors, protect public
safety and facilitate, where  possible,  successful  completion  of  the
alcohol or substance abuse 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 termi-
nation is necessary to preserve public safety.  Nor  shall  anything  in
this subdivision be construed as precluding the prosecution of a defend-
ant 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  abuse  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 diver-
sion program.  Such disposition may include, but is not limited to:  (a)
requiring  the defendant to undergo a period of interim probation super-
vision 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  proce-
dures  or  models  for  placing  appropriate  persons  into  alcohol  or
substance abuse treatment.

                                     121                           CHAP. 56
 
     § 5. Subdivision 6 of section 390.30 of the criminal procedure law, as
   amended by chapter 216 of the laws  of  1999,  is  amended  to  read  as
   follows:
     6.  Interim  probation supervision. In any case where the court deter-
   mines that a defendant is eligible for  a  sentence  of  probation,  the
   court,  after  consultation  with the prosecutor and upon the consent of
   the defendant, may adjourn the sentencing to a specified date and  order
   that  the  defendant  be  placed on interim probation supervision. In no
   event may the sentencing be adjourned for a period  exceeding  one  year
   from  the  date  the  conviction is entered, except that upon good cause
shown, the court may, upon the defendant's consent,  extend  the  period
for  an  additional  one  year  where the defendant has agreed to and is
still participating in a substance abuse treatment program in connection
with a court designated a drug court by the chief administrator  of  the
courts.  When ordering that the defendant be placed on interim probation
   supervision,  the  court  shall impose all of the conditions relating to
   supervision specified in subdivision three of section 65.10 of the penal
   law and may impose any or all of the conditions relating to conduct  and
   rehabilitation  specified  in subdivisions two, four and five of section
   65.10 of such law; provided, however, that the defendant must receive  a
   written  copy  of any such conditions at the time he or she is placed on
   interim probation supervision. The defendant's record of compliance with
   such conditions, as well as any other  relevant  information,  shall  be
   included  in  the  presentence  report,  or  updated presentence report,
   prepared pursuant to this section, and  the  court  must  consider  such
   record and information when pronouncing sentence.
     § 6. Subdivision 2 of section 410.91 of the criminal procedure law, as
   added by chapter 3 of the laws of 1995, is amended to read as follows:
     2.  A  defendant is an "eligible defendant" for purposes of a sentence
   of parole supervision when such defendant is a [second] felony  offender
   convicted  of  a specified offense or offenses as defined in subdivision
   five of this section, who stands convicted of no other  felony  offense,
   who has not previously been convicted of either a violent felony offense
   as  defined  in section 70.02 of the penal law, a class A felony offense
   or a class B felony offense other than a class B felony offense  defined
in article two hundred twenty of the penal law, and is not subject to an
   undischarged term of imprisonment.
     §  7. Subdivision 4 of section 410.91 of the criminal procedure law is
   REPEALED.
     § 8. Subdivision 5 of section 410.91 of the criminal procedure law, as
   added by chapter 3 of the laws of 1995, is amended to read as follows:
     5. For the purposes of this  section,  a  "specified  offense"  is  an
   offense  defined  by  any  of the following provisions of the penal law:
   burglary in the third degree as  defined  in  section  140.20,  criminal
   mischief  in  the  third  degree  as defined in section 145.05, criminal
   mischief in the second degree as defined in section 145.10, grand larce-
   ny in the fourth degree as defined in subdivision one, two, three, four,
   five, six, eight, nine or ten of section 155.30, grand  larceny  in  the
   third  degree  as  defined  in section 155.35 (except where the property
   consists of one or more firearms, rifles or shotguns), unauthorized  use
   of a vehicle in the second degree as defined in section 165.06, criminal
   possession  of stolen property in the fourth degree as defined in subdi-
   vision one,  two,  three,  five  or  six  of  section  165.45,  criminal
   possession  of stolen property in the third degree as defined in section
   165.50 (except where the property consists  of  one  or  more  firearms,
   rifles  or shotguns), forgery in the second degree as defined in section

   CHAP. 56                          122
 
   170.10, criminal possession of a forged instrument in the second  degree
   as defined in section 170.25, unlawfully using slugs in the first degree
   as  defined in section 170.60, or an attempt to commit any of the afore-
   mentioned  offenses  if  such attempt constitutes a felony offense; or a
class B felony offense defined in article two  hundred  twenty  where  a
sentence  is  imposed  pursuant  to  paragraph (a) of subdivision two of
section 70.70 of the penal law; or any class  C,  class  D  or  class  E
   controlled  substance  or marihuana felony offense as defined in article
   two hundred twenty or two hundred twenty-one.
     § 9. The criminal procedure law is amended by  adding  a  new  section
   440.46 to read as follows:
   § 440.46 Motion for resentence; certain controlled substance offenders.
1.  Any  person  in  the  custody  of  the  department of correctional
services convicted of a class B felony offense defined  in  article  two
hundred  twenty  of  the  penal law which was committed prior to January
thirteenth, two thousand five, who is serving an indeterminate  sentence
with a maximum term of more than three years, may, except as provided in
subdivision  five  of  this  section,  upon  notice  to  the appropriate
district attorney, apply to be resentenced to a determinate sentence  in
accordance  with  sections 60.04 and 70.70 of the penal law in the court
which imposed the sentence.
2. As part of any such application, the defendant may also move to  be
resentenced  to  a determinate sentence in accordance with section 70.70
of the penal law for any one or more class C, D, or  E  felony  offenses
defined  in  article two hundred twenty or two hundred twenty-one of the
penal law, the sentence or sentences  for  which  were  imposed  by  the
sentencing  court at the same time or were included in the same order of
commitment as such class B felony.
3. The provisions of section twenty-three  of  chapter  seven  hundred
thirty-eight  of  the  laws  of  two  thousand  four  shall  govern  the
proceedings on and determination of a motion brought  pursuant  to  this
section;  provided, however that the court's consideration of the insti-
tutional record of confinement of such person shall include but  not  be
limited  to such person's participation in or willingness to participate
in treatment or other programming while incarcerated and  such  person's
disciplinary  history.  The  fact  that a person may have been unable to
participate in treatment or other programming while incarcerated despite
such person's willingness to do so shall not be  considered  a  negative
factor in determining a motion pursuant to this section.
4.  Subdivision one of section seven hundred seventeen and subdivision
four of section seven hundred twenty-two of  the  county  law,  and  the
related provisions of article eighteen-A of such law, shall apply to the
preparation  of  and  proceedings  on  motions pursuant to this section,
including any appeals.
5. The provisions of this section shall not apply to any person who is
serving a sentence on  a  conviction  for  or  has  a  predicate  felony
conviction  for  an exclusion offense. For purposes of this subdivision,
an "exclusion offense" is:
(a) a crime for which the person was previously convicted  within  the
preceding  ten  years,  excluding any time during which the offender was
incarcerated for any reason between the time of commission of the previ-
ous felony and the time of commission of the present felony, which  was:
(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

                                     123                           CHAP. 56
 
     (b) a second violent felony offense pursuant to section 70.04  of  the
penal  law  or  a  persistent violent felony offense pursuant to section
70.08 of the penal law for which the person has previously been  adjudi-
cated.
     §  10.  Subdivision 1 of section 450.90 of the criminal procedure law,
   as amended by chapter 498 of the laws of 2002, is  amended  to  read  as
   follows:
     1.  Provided  that  a  certificate  granting leave to appeal is issued
   pursuant to section 460.20, an appeal may, except as provided in  subdi-
   vision  two, be taken to the court of appeals by either the defendant or
   the people from any adverse or partially adverse order of an  intermedi-
   ate  appellate  court  entered upon an appeal taken to such intermediate
   appellate court pursuant to section 450.10, 450.15, or 450.20,  or  from
   an order granting or denying a motion to set aside an order of an inter-
   mediate  appellate  court  on  the  ground  of ineffective assistance or
   wrongful deprivation of appellate counsel, or by either the defendant or
the people from any adverse or partially adverse order of an  intermedi-
ate  appellate  court  entered upon an appeal taken to such intermediate
appellate court from an order entered pursuant to section 440.46 of this
chapter.  An order of an intermediate appellate court is adverse to  the
   party  who was the appellant in such court when it affirms the judgment,
   sentence or order appealed from, and is adverse to the party who was the
   respondent in such court when it  reverses  the  judgment,  sentence  or
   order  appealed from. An appellate court order which modifies a judgment
   or order appealed from is partially adverse to each party.
     § 11. Paragraph (c) of subdivision 8 of section 700.05 of the criminal
   procedure law, as amended by chapter 394 of the laws of 2005, is amended
   to read as follows:
     (c) Criminal possession of  a  controlled  substance  in  the  seventh
   degree  as  defined  in  section  220.03  of  the  penal  law,  criminal
   possession of a controlled substance in the fifth degree as  defined  in
   section  220.06  of  the  penal law, criminal possession of a controlled
   substance in the fourth degree as defined in section 220.09 of the penal
   law, criminal possession of a controlled substance in the  third  degree
   as  defined in section 220.16 of the penal law, criminal possession of a
   controlled substance in the second degree as defined in  section  220.18
   of  the  penal law, criminal possession of a controlled substance in the
   first degree as defined in section 220.21 of  the  penal  law,  criminal
   sale of a controlled substance in the fifth degree as defined in section
   220.31  of the penal law, criminal sale of a controlled substance in the
   fourth degree as defined in section 220.34 of the  penal  law,  criminal
   sale of a controlled substance in the third degree as defined in section
   220.39  of the penal law, criminal sale of a controlled substance in the
   second degree as defined in section 220.41 of the  penal  law,  criminal
   sale of a controlled substance in the first degree as defined in section
   220.43  of  the penal law, criminally possessing a hypodermic instrument
   as defined in section 220.45 of the penal law,  criminal  possession  of
   methamphetamine  manufacturing  material in the second degree as defined
   in section 220.70 of the penal law, criminal possession of  methampheta-
   mine  manufacturing  material  in the first degree as defined in section
   220.71 of the penal law, criminal possession of precursors of methamphe-
   tamine as defined in section 220.72 of the penal law, unlawful  manufac-
   ture of methamphetamine in the third degree as defined in section 220.73
   of  the penal law, unlawful manufacture of methamphetamine in the second
   degree as defined in section 220.74 of the penal law, unlawful  manufac-
   ture of methamphetamine in the first degree as defined in section 220.75

   CHAP. 56                          124
 
   of  the penal law, unlawful disposal of methamphetamine laboratory mate-
   rial as defined in section 220.76 of the penal law, operating as a major
trafficker as defined in section  220.77  of  the  penal  law,  criminal
   possession of marihuana in the first degree as defined in section 221.30
   of  the  penal  law,  criminal  sale of marihuana in the first degree as
   defined in section 221.55 of the penal law, promoting  gambling  in  the
   second  degree  as defined in section 225.05 of the penal law, promoting
   gambling in the first degree as defined in section 225.10 of  the  penal
   law,  possession  of gambling records in the second degree as defined in
   section 225.15 of the penal law, possession of gambling records  in  the
   first  degree  as  defined  in  section  225.20  of  the  penal law, and
   possession of a gambling device as defined  in  section  225.30  of  the
   penal law;
     §  12.  Subparagraph  (A) of paragraph (c) of subdivision 2 of section
   259-i of the executive law, as separately amended by chapters 40 and 126
   of the laws of 1999, is amended to read as follows:
     (A) Discretionary release on parole shall not be granted merely  as  a
   reward  for  good  conduct  or  efficient  performance  of  duties while
   confined but after considering if  there  is  a  reasonable  probability
   that,  if  such  inmate  is released, he will live and remain at liberty
   without violating the law, and that his release is not incompatible with
   the welfare of society and will not so deprecate the seriousness of  his
   crime  as  to  undermine  respect  for law. In making the parole release
   decision, the guidelines adopted pursuant to subdivision four of section
   two hundred fifty-nine-c of this article shall require that the  follow-
   ing  be considered: (i) the institutional record including program goals
   and accomplishments, academic achievements, vocational education, train-
   ing or work assignments, therapy and  interpersonal  relationships  with
   staff  and  inmates;  (ii)  performance,  if  any, as a participant in a
   temporary release  program;  (iii)  release  plans  including  community
   resources,  employment,  education  and  training  and  support services
   available to the inmate; (iv) any deportation order issued by the feder-
   al government against the inmate while in the custody of the  department
   of  correctional  services  and any recommendation regarding deportation
   made by the commissioner of  the  department  of  correctional  services
   pursuant to section one hundred forty-seven of the correction law; [and]
   (v)  any statement made to the board by the crime victim or the victim's
   representative, where the crime victim is deceased  or  is  mentally  or
   physically  incapacitated;  and  (vi)  the  length  of  the  determinate
sentence to which the inmate would be subject had he or she  received  a
sentence pursuant to section 70.70 or section 70.71 of the penal law for
a  felony  defined  in article two hundred twenty or article two hundred
twenty-one of the penal law.  The board shall provide  toll  free  tele-
   phone access for crime victims. In the case of an oral statement made in
   accordance with su
Full post as published by New York Supreme Court Criminal Term Library on April 14, 2009 (boomark
			/ email).
	
	
	
	
	
	



	



		
		

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