STATE OF NEW YORK ________________________________________________________________________ 8565--A IN SENATE February 14, 2024 ___________ Introduced by Sens. ASHBY, WEBER -- read twice and ordered printed, and when printed to be committed to the Committee on Codes -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the criminal procedure law, in relation to allowing courts to consider the risk of continued substance abuse in certain instances The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 510.10 of the criminal procedure law is amended by 2 adding three new subdivisions 5-a, 5-b and 5-c to read as follows: 3 5-a. Notwithstanding the provisions of subdivisions three and four of 4 this section, the court may, in its discretion, commit the principal to 5 the custody of the sheriff for a period of no more than fifteen days, if 6 such principal has a substantial risk of continued substance abuse and 7 there is a likelihood of serious harm to such principal and there exists 8 no alternative less restrictive means available to confine or supervise 9 such principal in order to prevent the principal's substantial risk of 10 continued substance abuse upon release from custody. Alternative and 11 less restrictive means of confinement and supervision shall mean avail- 12 able immediate commitment of such principal in a state licensed 13 substance abuse treatment center, drug rehabilitation center or mental 14 health facility. In making its determination, the court may consider the 15 following factors, including but not limited to: 16 (a) admission by the principal that they are addicted to a controlled 17 substance; 18 (b) requests by the principal's immediate family members to hold the 19 principal in custody to prevent the likelihood of serious harm; 20 (c) a record of the principal's arrests for similar offenses related 21 to substance abuse; 22 (d) documentation of reasons for any failed attempts to complete drug 23 court; 24 (e) the arresting officer's testimony of the principal's intoxication 25 or of witnessing the principal's use of a controlled substance; and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09129-05-4
S. 8565--A 2 1 (f) the principal's possession of a controlled substance or possession 2 of paraphernalia related thereto. 3 5-b. Upon the commitment of such principal to the custody of the sher- 4 iff, or an available, less restrictive means of confinement and super- 5 vision, the court shall order a duly licensed professional to monitor 6 such principal as needed to evaluate the principal's need for treatment 7 and/or medications, and to complete an evaluation for addiction to a 8 controlled substance. Treatment, including but not limited to medica- 9 tions, shall be provided to the principal without unnecessary delay, as 10 recommended by such licensed professional. The principal's complete 11 evaluation, including recommendations for the continued custody of such 12 principal, considerations for participation in a judicial diversion 13 program, immediate release from custody, and any other proposals for the 14 care and treatment of such principal shall be provided to the court 15 without unnecessary delay and within no more than seventy-two hours from 16 the completion of such principal's evaluation. The principal, such prin- 17 cipal's counsel and the district attorney's office shall be provided a 18 copy of the principal's evaluation upon request to the court. 19 5-c. The principal shall be afforded the opportunity for a hearing to 20 request the principal's immediate release from the custody of the sher- 21 iff or confinement in a treatment or mental health facility, prior to 22 the arraignment of such principal. If within seventy-two hours of the 23 court's receipt of the principal's request for such hearing, the princi- 24 pal is not brought before a local criminal court, the principal shall be 25 immediately released from the sheriff's custody or confinement in a 26 treatment facility or mental health facility and served an appearance 27 ticket. The principal shall be entitled to introduce their controlled 28 substance evaluation including any recommendations made by a licensed 29 physician that principal should not be held in custody of the sheriff or 30 confined at a treatment or mental health facility and that the principal 31 is not in substantial risk for substance abuse, or there is not a like- 32 lihood of the principal inflicting serious harm upon their release from 33 custody. The court shall consider the principal's complete evaluation 34 including treatment recommendations, record of arrests, convictions and 35 any record of participation in any drug court and shall decide whether 36 to immediately release such principal from the custody of the sheriff or 37 confinement in a treatment facility or mental health facility, or to 38 remand the principal to the custody of the sheriff or confinement in a 39 treatment facility or mental health facility for the remainder of the 40 principal's fifteen day period of custody or confinement. 41 § 2. The opening paragraph and subparagraphs (i), (xx) and (xxi) of 42 paragraph (b) of subdivision 1 of section 530.20 of the criminal proce- 43 dure law, the opening paragraph as amended by section 6 of subpart A of 44 part VV of chapter 56 of the laws of 2023, subparagraph (i) as amended 45 by section 3 of part UU of chapter 56 of the laws of 2020, subparagraph 46 (xx) as amended and subparagraph (xxi) as added by section 4 of subpart 47 C of part UU of chapter 56 of the laws of 2022, are amended and a new 48 subparagraph (xxii) is added to read as follows: 49 Where the principal stands charged with a qualifying offense, the 50 court, unless otherwise prohibited by law, may in its discretion release 51 the principal pending trial on the principal's own recognizance or under 52 non-monetary conditions, fix bail, order non-monetary conditions in 53 conjunction with fixing bail, or, where the defendant is charged with a 54 qualifying offense [which is a felony], the court may commit the princi- 55 pal to the custody of the sheriff. The court shall explain its choice of 56 securing order on the record or in writing. A principal stands charged
S. 8565--A 3 1 with a qualifying offense when [he or she] such principal stands charged 2 with: 3 (i) a felony enumerated in section 70.02 of the penal law[, other than 4 robbery in the second degree as defined in subdivision one of section 5 160.10 of the penal law, provided, however, that burglary in the second 6 degree as defined in subdivision two of section 140.25 of the penal law 7 shall be a qualifying offense only where the defendant is charged with 8 entering the living area of the dwelling]; 9 (xx) any felony or class A misdemeanor involving harm to an identifi- 10 able person or property, or any charge of criminal possession of a 11 firearm as defined in section 265.01-b of the penal law where such 12 charge arose from conduct occurring while the defendant was released on 13 [his or her] their own recognizance, released under conditions, or had 14 yet to be arraigned after the issuance of a desk appearance ticket for a 15 separate felony or class A misdemeanor involving harm to an identifiable 16 person or property, provided, however, that the prosecutor must show 17 reasonable cause to believe that the defendant committed the instant 18 crime and any underlying crime. For the purposes of this subparagraph, 19 any of the underlying crimes need not be a qualifying offense as defined 20 in this subdivision. For the purposes of this paragraph, "harm to an 21 identifiable person or property" shall include but not be limited to 22 theft of or damage to property. However, based upon a review of the 23 facts alleged in the accusatory instrument, if the court determines that 24 such theft is negligible and does not appear to be in furtherance of 25 other criminal activity, the principal shall be released on [his or her] 26 their own recognizance or under appropriate non-monetary conditions; 27 [or] 28 (xxi) criminal possession of a weapon in the third degree as defined 29 in subdivision three of section 265.02 of the penal law or criminal sale 30 of a firearm to a minor as defined in section 265.16 of the penal 31 law[.]; or 32 (xxii) a controlled substance offense as defined in article two 33 hundred twenty of the penal law. 34 § 3. Subdivision 1 of section 530.20 of the criminal procedure law is 35 amended by adding three new paragraphs (c), (e) and (f) to read as 36 follows: 37 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this 38 subdivision, the court may, in its discretion, commit the principal to 39 the custody of the sheriff for a period of no more than fifteen days, if 40 such principal has a substantial risk of continued substance abuse and 41 there is a likelihood of serious harm to such principal and there exists 42 no alternative less restrictive means available to confine or supervise 43 such principal in order to prevent the principal's substantial risk of 44 continued substance abuse upon release from custody. Alternative and 45 less restrictive means of confinement and supervision shall mean avail- 46 able immediate commitment of such principal in a state licensed 47 substance abuse treatment center, drug rehabilitation center or mental 48 health facility. In making its determination, the court may consider the 49 following factors, including but not limited to: 50 (i) admission by the principal that they are addicted to a controlled 51 substance; 52 (ii) requests by the principal's immediate family members to hold the 53 principal in custody to prevent the likelihood of serious harm; 54 (iii) a record of the principal's arrests for similar offenses related 55 to substance abuse;
S. 8565--A 4 1 (iv) documentation of reasons for any failed attempts to complete drug 2 court; 3 (v) the arresting officer's testimony of witnessing the principal's 4 use of a controlled substance; and 5 (vi) the principal's possession of a controlled substance or 6 possession of paraphernalia related thereto. 7 (e) Upon the commitment of such principal to the custody of the sher- 8 iff, or an available, less restrictive means of confinement and super- 9 vision, the court shall order a duly licensed professional to monitor 10 such principal as needed to evaluate the principal's need for treatment 11 and/or medications, and to complete an evaluation for addiction to a 12 controlled substance. Treatment, including but not limited to medica- 13 tions, shall be provided to the principal without unnecessary delay, as 14 recommended by such licensed professional. The principal's complete 15 evaluation, including recommendations for the continued custody of such 16 principal, immediate release from custody, and any other proposals for 17 the care and treatment of such principal shall be provided to the court 18 without unnecessary delay and within no more than seventy-two hours from 19 the completion of such principal's evaluation. The principal, such prin- 20 cipal's counsel and the district attorney's office shall be provided a 21 copy of the principal's evaluation upon request to the court. 22 (f) The principal shall be afforded the opportunity for a hearing to 23 request the principal's immediate release from the custody of the sher- 24 iff or confinement in a treatment or mental health facility, prior to 25 the arraignment of such principal. If within seventy-two hours of the 26 court's receipt of the principal's request for such hearing, the princi- 27 pal is not brought before a local criminal court, the principal shall be 28 immediately released from the sheriff's custody or confinement in a 29 treatment facility or mental health facility and served an appearance 30 ticket. The principal shall be entitled to introduce their controlled 31 substance evaluation including any recommendations made by a licensed 32 physician that principal should not be held in custody of the sheriff or 33 confined at a treatment or mental health facility and that the principal 34 is not in substantial risk for substance abuse, or there is not a like- 35 lihood of the principal inflicting serious harm upon their release from 36 custody. The court shall consider the principal's complete evaluation 37 including treatment recommendations, record of arrests, convictions and 38 any record of participation in any drug court and shall decide whether 39 to immediately release such principal from the custody of the sheriff or 40 confinement in a treatment facility or mental health facility, or to 41 remand the principal to the custody of the sheriff or confinement in a 42 treatment facility or mental health facility for the remainder of the 43 principal's fifteen day period of custody or confinement. 44 § 4. Section 530.40 of the criminal procedure law is amended by adding 45 three new subdivisions 5-a, 5-b and 5-c to read as follows: 46 5-a. Notwithstanding the provisions of subdivisions three and four of 47 this section, the court may, in its discretion, commit the principal to 48 the custody of the sheriff for a period of no more than fifteen days, if 49 such principal has a substantial risk of continued substance abuse and 50 there is a likelihood of serious harm to such principal and there exists 51 no alternative less restrictive means available to confine or supervise 52 such principal in order to prevent the principal's substantial risk of 53 continued substance abuse upon release from custody. Alternative and 54 less restrictive means of confinement and supervision shall mean avail- 55 able immediate commitment of such principal in a state licensed 56 substance abuse treatment center, drug rehabilitation center or mental
S. 8565--A 5 1 health facility. In making its determination, the court may consider the 2 following factors, including but not limited to: 3 (a) admission by the principal that they are addicted to a controlled 4 substance; 5 (b) requests by the principal's immediate family members to hold the 6 principal in custody to prevent the likelihood of serious harm; 7 (c) a record of the principal's arrests for similar offenses related 8 to substance abuse; 9 (d) documentation of reasons for any failed attempts to complete drug 10 court; 11 (e) the arresting officer's testimony of the principal's intoxication 12 or of witnessing the principal's use of a controlled substance; and 13 (f) the principal's possession of a controlled substance or possession 14 of paraphernalia related thereto. 15 5-b. Upon the commitment of such principal to the custody of the sher- 16 iff, or an available, less restrictive means of confinement and super- 17 vision, the court shall order a duly licensed professional to monitor 18 such principal as needed to evaluate the principal's need for treatment 19 and/or medications, and to complete an evaluation for addiction to a 20 controlled substance. Treatment, including but not limited to medica- 21 tions, shall be provided to the principal without unnecessary delay, as 22 recommended by such licensed professional. The principal's complete 23 evaluation, including recommendations for the continued custody of such 24 principal, immediate release from custody, and any other proposals for 25 the care and treatment of such principal shall be provided to the court 26 without unnecessary delay and within no more than seventy-two hours from 27 the completion of such principal's evaluation. The principal, such prin- 28 cipal's counsel and the district attorney's office shall be provided a 29 copy of the principal's evaluation upon request to the court. 30 5-c. The principal shall be afforded the opportunity for a hearing to 31 request the principal's immediate release from the custody of the sher- 32 iff or confinement in a treatment or mental health facility, prior to 33 the arraignment of such principal. If within seventy-two hours of the 34 court's receipt of the principal's request for such hearing, the princi- 35 pal is not brought before a local criminal court, the principal shall be 36 immediately released from the sheriff's custody or confinement in a 37 treatment facility or mental health facility and served an appearance 38 ticket. The principal shall be entitled to introduce their controlled 39 substance evaluation including any recommendations made by a licensed 40 physician that principal should not be held in custody of the sheriff or 41 confined at a treatment or mental health facility and that the principal 42 is not in substantial risk for substance abuse, or there is not a like- 43 lihood of the principal inflicting serious harm upon their release from 44 custody. The court shall consider the principal's complete evaluation 45 including treatment recommendations, record of arrests, convictions and 46 any record of participation in any drug court and shall decide whether 47 to immediately release such principal from the custody of the sheriff or 48 confinement in a treatment facility or mental health facility, or to 49 remand the principal to the custody of the sheriff or confinement in a 50 treatment facility or mental health facility for the remainder of the 51 principal's fifteen day period of custody or confinement. 52 § 5. Subdivision 1 of section 510.30 of the criminal procedure law, as 53 amended by section 4 of subpart A of part VV of chapter 56 of the laws 54 of 2023, is amended to read as follows: 55 1. With respect to any principal, the court in all cases, unless 56 otherwise provided by law, must impose a securing order in accordance
S. 8565--A 6 1 with section 510.10 of this article, and shall explain the basis for its 2 determination and choice of securing order on the record or in writ- 3 ing[.], which shall include, but not be limited to, whether the princi- 4 pal has a substantial risk of continued substance abuse and there is a 5 likelihood of serious harm to such principal and there exists no alter- 6 native less restrictive means available to confine or supervise such 7 principal in order to prevent the principal's substantial risk of 8 continued substance abuse upon release from custody. Alternative and 9 less restrictive means of confinement and supervision shall mean avail- 10 able immediate commitment of such principal in a state licensed 11 substance abuse treatment center, drug rehabilitation center or mental 12 health facility. In making its determination, the court may consider the 13 following factors, including but not limited to: 14 (a) admission by the principal that they are addicted to a controlled 15 substance; 16 (b) requests by the principal's immediate family members to hold the 17 principal in custody to prevent the likelihood of serious harm; 18 (c) a record of the principal's arrests for similar offenses related 19 to substance abuse; 20 (d) documentation of reasons for any failed attempts to complete drug 21 court; 22 (e) the arresting officer's testimony of witnessing the principal's 23 use of a controlled substance; and 24 (f) the principal's possession of a controlled substance or possession 25 of paraphernalia related thereto. 26 § 6. Section 140.20 of the criminal procedure law is amended by adding 27 a new subdivision 9 to read as follows: 28 9. If after arresting a person, for any offense, a police officer 29 reasonably believes the arrested person is likely addicted to a 30 controlled substance, such arrested person may be temporarily held in 31 custody but must be brought before a local criminal court without unnec- 32 essary delay for a determination of whether the arrested person should 33 be committed to the custody of the sheriff under subdivision five-a of 34 section 510.10, paragraph (c) of subdivision one of section 530.20 or 35 subdivision five-a of section 530.40 of this chapter. In making a deter- 36 mination that the arrested person is likely addicted to a controlled 37 substance and is at substantial risk for continued substance abuse upon 38 release from custody, a police officer may consider the following 39 factors, including but not limited to: 40 (a) the arrested person appears intoxicated, impaired or incapacitated 41 at the time of the arrest, or in the hours following the arrest and 42 while the arrested person is in the custody of the arresting officers or 43 while physically present at the police station; 44 (b) admission by the arrested person that they are addicted to a 45 controlled substance; 46 (c) requests by the arrested person's known immediate family members, 47 or fellow residential cohabitants, to hold the arrested person in custo- 48 dy in order to prevent the likelihood of serious harm; 49 (d) knowledge of the arrested person's record of arrests for similar 50 offenses directly related to substance abuse; 51 (e) the arresting officer witnessed the arrested person use a 52 controlled substance; and 53 (f) the arresting officer found the arrested person in possession of a 54 controlled substance or paraphernalia related thereto at the time of the 55 arrest, or upon a search of such arrested person. 56 § 7. This act shall take effect immediately.