FAQs About New York State’s Judicial Diversion Program
Q. What section of the law authorizes the New York State Judicial Diversion Program?
A. New York Criminal Procedure Law Article 216
Q. When was the law enacted?
A. April 24, 2009
Q. When did the law take effect?
A. October 6, 2009
Q. Who is eligible to participate in the Judicial Diversion Program?
A. Defendants charged in an indictment or superior court information with a Class B, C, D, or E felony controlled substance offense or marijuana offense. [CPL § 216 (1)]
Q. Who is not eligible to participate in the Judicial Diversion Program?
A. A defendant is not eligible –without consent of the prosecutor-if he has been convicted of a violent felony within the last ten years. A defendant is not eligible –without consent of the prosecutor-if he has been previously adjudicated a second violent felony offender or a persistent violent felony offender. A defendant is not eligible–without consent of the prosecutor- if presently charged with a violent felony offense. A defendant is not eligible –without the consent of the prosecutor- if he has been convicted within ten years of a merit time ineligible offense or is presently charged with a merit time ineligible offense. [CPL § 216 (1)(a)(b)]
Q. When can a defendant request to be in the Judicial Diversion Program?
A. Anytime after the arraignment but before the entering of a plea of guilty or the commencement of a trial. [CPL § 216.05(1)]
Q. What is the first step in the process?
A. An eligible defendant requests an alcohol and substance abuse evaluation. [CPL §216.05(1)]
Q. Does the Court have to order an alcohol and substance abuse evaluation?
A. The court may order an alcohol and substance abuse evaluation for an eligible defendant. [CPL §216.05(1)]
Q. Who gets a copy of the alcohol and substance abuse evaluation?
A. The defendant signs an authorization allowing the alcohol and substance abuse evaluation to be released to the court, prosecutor, defense counsel, local probation department and any other person specified in the authorization for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance abuse or dependence or alcohol abuse or dependence and any co-occurring mental disorder or mental illness. [CPL §216.05(1)]
Q. What happens after the alcohol and substance abuse evaluation has been completed?
A. The Court provides a copy of the evaluation to the defendant and the prosecutor. At which point, either party may request a hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment. [CPL §216.05(2)(3)]
Q. When is the hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment held?
A. The hearing on the issue of whether the eligible defendant should be offered alcohol or substance abuse treatment is to 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. [CPL §216.05(3)(a)]
Q. What type of proof is permitted at the hearing?
A. The parties are authorized to make oral arguments and take witness testimony. [CPL §216.05(3)(a)]
Q. What does the Court consider when deciding whether the eligible defendant should be offered alcohol or substance abuse treatment?
A. The court is to consider and make findings of fact as to whether: the defendant is an eligible defendant; the defendant has a history of alcohol or substance abuse; the defendant’s substance abuse or dependence was a contributing factor to defendant’s criminal behavior; the judicial diversion program could effectively address the defendant’s alcohol or substance abuse problem; imprisonment may not be needed to protect society. [CPL §216.05(3)(b)]
Q. Must the defendant plead guilty to the charge or charges before the Court will issue an order granting judicial diversion?
A. Yes. Unless the People and the Court consent to the entry of an order granting judicial diversion without a plea of guilty or the court finds that a plea of guilty is not required due to the existence of exceptional circumstances. [CPL §216.05(4)]
Q. What constitutes exceptional circumstances?
A. Exceptional circumstances exist when-regardless of the ultimate disposition of the case- a guilty plea will result in severe collateral consequences. . [CPL §216.05(4)(a)(b)]
Q. What conditions will be placed upon an eligible defendant who is placed on judicial diversion?
A. The eligible defendant will be required to agree to: participate in a specific treatment program; make periodic court appearances; provide periodic urinalysis; and refrain from engaging in criminal behavior. .[CPL §216.05(5)]
Q. Who pays for the treatment program?
A. The eligible defendant’s must first seek reimbursement from their insurance coverage in accordance with the provisions of their policy or contract. . [CPL §216.05(7)]
Q. Does the eligible defendant need to return to Court while in the judicial diversion program?
A. The Court retains jurisdiction over the eligible defendant and may require the eligible defendant upon reasonable notice to appear in court at any time to monitor the eligible defendant’s progress in the alcohol or substance abuse program. . [CPL §216.05(8)]
Q. What happens if the eligible defendant violates their release conditions?
A. The Court will direct the defendant to appear in Court or issue a bench warrant directing the police to bring the eligible defendant before the Court for the purpose of conducting a summary proceeding to determine if the defendant did violate the conditions of release. [CPL §216.05(9)(a)]
Q. What happens if the Court determines that the defendant violated the conditions of release?
A. The court has several options including modifying the conditions of release; reconsider the defendant's release status; terminate the eligible defendant’s participation in the judicial diversion program; and/or sentence the eligible defendant in accordance with the plea agreement. [CPL §216.05(9)(c)]
Q. What does the Court consider when deciding what action to take in response to a violation of the conditions of release?
A. The Court must consider all relevant circumstances. The court must consider the views of the defense counsel, the prosecutor and the treatment provider. The Court must also consider the extent to which persons who ultimately successfully complete a substance abuse program 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 is also to consider using a system of graduated and appropriate responses or sanctions designed to address inappropriate behaviors, protect public safety and where possible facilitate successful completion of the alcohol and substance abuse treatment program. [CPL §216.05(9)(c)]
Q. Can an eligible defendant terminate his participation in the judicial diversion program?
A. An eligible defendant may notify the court at any time that he or she wishes to terminate their participation in the judicial diversion program. [CPL §216.05(9)(e)]
Q. What happens if an eligible defendant does terminate his or her participation in the judicial diversion program?
A. The case will proceed and where applicable, the court will impose sentence in accordance with the plea agreement. [CPL §216.05(9)(e)]
Q. What happens if the defendant successfully completes the treatment program and has complied with all other conditions of his release?
A. The Court will 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. [CPL §216.05(10)]
Q. What are some of the final dispositions that might appear in defendant’s agreement to participate in the Judicial Diversion Program?
A. A final disposition can include but is not limited to: a period of supervised probation followed by a withdrawal of the guilty plea and dismissing the indictment; a period of supervised probation followed by a withdrawal of the guilty plea and the entering of a plea of guilty to a misdemeanor; or withdrawal of the guilty plea and dismissing the indictment. [CPL §216.05(10)(a)(b)(c)]
