Drug Law Reform

LAWS OF NEW YORK, 2009
CHAPTER 56
 
AN  ACT  to amend the Correction Law, Criminal Procedure Law, Executive Law, Judiciary Law, Mental Hygiene Law, and the Penal Law to include several significant changes to the sentencing statutes and related laws governing felony drug prosecutions.

Became a law April 7, 2009, with the approval of the Governor.
Passed by a majority vote, three-fifths being present.
 
The People of the State of New York, represented in Senate and  Assembly, do enact as follows:

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 residential dormitories which provide intensive alcohol and substance abuse treatment services to inmates who: (i) are otherwise eligible for temporary 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 within 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 conditional 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 promulgated 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 department's eight designated alcohol and substance abuse treatment correctional annexes having a combined total capacity of two thousand five 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 treatment 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 ninety-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 judicially 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 successfully 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 incarceration 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. The court may only seal the records of the defendant's arrests, prosecutions 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 information that occurred in other jurisdictions. The division is hereby authorized to receive such information from the Federal Bureau of Investigation 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 county 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 sanctioned 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, palmprints 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;

    (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 application 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 employment 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 thereto.

    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 subdivision, 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 commission 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 subparagraph (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 felony 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 paragraph (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 paragraph 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 professional 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 participate in such an evaluation at any time. The defendant shall provide a written authorization, in compliance with the requirements of any applicable state or federal laws, rules or regulations authorizing disclosure of the results of the assessment to the defendant's attorney, the prosecutor, 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 evaluation report, the court shall provide a copy of the report to the eligible 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 including, but not limited to, evidence that:

    (i) the defendant had within the preceding ten years (excluding any time during which the offender was incarcerated for any reason between the time of the acts that led to the youthful offender adjudication and the time of commission of the present offense) been adjudicated a youthful offender for: (A) a violent felony offense as defined in section 70.02 of the penal law; or (B) any offense for which a merit time allowance is not available pursuant to subparagraph (ii) of paragraph (d) of subdivision one of section eight hundred three of the correction law; and

    (ii) in the case of a felony offense defined in subdivision 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 effectively address such abuse or dependence; and

    (v) institutional confinement of the defendant is or may not be necessary for the protection of the public.

    4. When an authorized court determines, pursuant to paragraph (b) of subdivision three of this section, that an eligible defendant should be offered alcohol or substance 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 determines that a plea of guilty shall not be required. For purposes of this subdivision, exceptional circumstances exist when, regardless of the ultimate disposition of the case, the entry of a plea of guilty is likely to result in severe collateral consequences.

    5. The defendant shall agree on the record or in writing to abide by the release conditions set by the court, which, shall include: participation in a specified period of alcohol or substance 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 evaluation and any health care professionals responsible for providing such treatment or monitoring the defendant's progress in such treatment; and may include: (i) periodic court appearances, which may include periodic urinalysis; (ii) a requirement that the defendant refrain from engaging in criminal behaviors.

    6. Upon an eligible defendant's agreement to abide by the conditions set by the court, the court shall issue a securing order providing for bail or release on the defendant's own recognizance and conditioning any release upon the agreed upon conditions. The period of alcohol or substance 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 insurance law or article forty-four of the public health law, or who is covered by a self-funded plan which provides coverage for the diagnosis and treatment of chemical abuse and chemical dependence however defined in such policy; shall first seek reimbursement for such treatment in accordance with the provisions of such policy or contract.

    8. During the period of a defendant's participation in the judicial diversion program, the court shall retain jurisdiction of the defendant. 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 defendant to appear or issue a bench warrant to a police officer or an appropriate peace officer directing him or her to take the defendant into custody and bring the defendant before the court without unnecessary delay. The provisions of subdivision one of section 530.60 of this chapter 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 condition of his or her release under the judicial diversion program, the court may modify the conditions thereof, reconsider the order of recognizance or bail pursuant to subdivision two of section 510.30 of this chapter, or terminate the defendant's participation in the judicial diversion program; and when applicable proceed with the defendant's sentencing in accordance with the agreement. Notwithstanding any provision of law to the contrary, the court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed on a felony drug offender pursuant to paragraph (b) or (c) of subdivision two of section 70.70 of the penal law taking into account the length of time the defendant spent in residential treatment and how best to continue treatment while the defendant is serving that sentence. In determining what action to take for a violation of a release condition, the court shall consider all relevant circumstances, including the views of the prosecutor, the defense and the alcohol or substance 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 sanctions 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 termination is necessary to preserve public safety. Nor shall anything in this subdivision be construed as precluding the prosecution of a defendant for the commission of a different offense while participating in the judicial diversion program.

    (e) A defendant may at any time advise the court that he or she wishes to terminate participation in the judicial diversion program, at which time the court shall proceed with the case and, where applicable, shall impose sentence in accordance with the plea agreement. Notwithstanding any provision of law to the contrary, the court may impose any sentence authorized for the crime of conviction in accordance with the plea agreement, or any lesser sentence authorized to be imposed on a felony drug offender pursuant to paragraph (b) or (c) of subdivision two of section 70.70 of the penal law taking into account the length of time the defendant spent in residential treatment and how best to continue treatment while the defendant is serving that sentence.

    10. Upon the court's determination that the defendant has successfully completed the required period of alcohol or substance 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 diversion program. Such disposition may include, but is not limited to: (a) requiring the defendant to undergo a period of interim probation supervision and, upon the defendant's successful completion of the interim probation supervision term, notwithstanding the provision of any other law, permitting the defendant to withdraw his or her guilty plea and dismissing the indictment; or (b) requiring the defendant to undergo a period of interim probation supervision and, upon successful completion of the interim probation supervision term, notwithstanding the provision of any other law, permitting the defendant to withdraw his or her guilty plea, enter a guilty plea to a misdemeanor offense and sentencing the defendant as promised in the plea agreement, which may include a period of probation supervision pursuant to section 65.00 of the penal law; or (c) allowing the defendant to withdraw his or her guilty plea and dismissing the indictment.

    11. Nothing in this article shall be construed as restricting or prohibiting courts or district attorneys from using other lawful procedures or models for placing appropriate persons into alcohol or substance abuse treatment.

 


  § 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 determines 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 larceny 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 subdivision 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 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 aforementioned 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 institutional 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 previous 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

    (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 adjudicated.

 

           § 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 subdivision two, be taken to the court of appeals by either the defendant or the people from any adverse or partially adverse order of an intermediate 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 intermediate 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 intermediate 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 methamphetamine manufacturing material in the first degree as defined in section 220.71 of the penal law, criminal possession of precursors of methamphetamine as defined in section 220.72 of the penal law, unlawful manufacture 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 manufacture of methamphetamine in the first degree as defined in section 220.75 of the penal law, unlawful disposal of methamphetamine laboratory material 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 following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training 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 federal 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 telephone access for crime victims. In the case of an oral statement made in accordance with subdivision one of section 440.50 of the criminal procedure law, the parole board member shall present a written report of the statement to the parole board. A crime victim's representative shall mean the crime victim's closest surviving relative, the committee or guardian of such person, or the legal representative of any such person. Such statement submitted by the victim or victim's representative may include information concerning threatening or intimidating conduct toward the victim, the victim's representative, or the victim's family, made by the person sentenced and occurring after the sentencing. Such information may include, but need not be limited to, the threatening or intimidating conduct of any other person who or which is directed by the person sentenced. Notwithstanding the provisions of this section, in making the parole release decision for persons whose minimum period of imprisonment was not fixed pursuant to the provisions of subdivision one of this section, in addition to the factors listed in this paragraph the board shall consider the factors listed in paragraph (a) of subdivision one of this section.

 

     § 13. The section heading and subdivisions 1, 3 and 4 of section 259-j of the executive law, the section heading and subdivisions 1 and 3 as separately amended by section 10 of part F and section 1 of part N of chapter 62 of the laws of 2003, subdivision 4 as amended by chapter 310 of the laws of 2008, are amended to read as follows:

    Merit termination of sentence and discharge from presumptive release, parole [and], conditional release and release to post-release supervision. 1. The division of parole may grant to any person a merit termination of sentence from presumptive release, parole [or from], conditional release or release to post-release supervision prior to the expiration of the full term or maximum term, provided it is determined by the division of parole that such merit termination is in the best interests of society, such person is not required to register as a sex offender pursuant to article [six-c] six-C of the correction law, and such person is not on presumptive release, parole [or], conditional release or release to post-release supervision from a term of imprisonment imposed for any of the following offenses, or for an attempt to commit any of the following offenses:

    (a) a violent felony offense as defined in section 70.02 of the penal law;

    (b) murder in the first degree or murder in the second degree;

    (c) an offense defined in article one hundred thirty of the penal law;

    (d) unlawful imprisonment in the first degree, kidnapping in the first degree, or kidnapping in the second degree, in which the victim is less than seventeen years old and the offender is not the parent of the victim;

    (e) an offense defined in article two hundred thirty of the penal law involving the prostitution of a person less than nineteen years old;

    (f) disseminating indecent material to minors in the first degree or disseminating indecent material to minors in the second degree;

    (g) incest;

    (h) an offense defined in article two hundred sixty-three of the penal law;

    (i) a hate crime as defined in section 485.05 of the penal law; or

    (j) an offense defined in article four hundred ninety of the penal law.

    3. A merit termination of sentence may be granted after two years of presumptive release [or], parole, conditional release or release to post-release supervision to a person serving a sentence for a class A felony offense as defined in article two hundred twenty of the penal law. A merit termination of sentence may be granted to all other eligible persons after one year of presumptive release, parole [or], conditional release or release to post-release supervision.

    4. Except where a determinate sentence was imposed for a felony[,] other than a felony defined in article two hundred twenty or article two hundred twenty-one of the penal law, if the board of parole is satisfied that an absolute discharge from presumptive release, parole [or], conditional release or release to a period of post-release supervision is in the best interests of society, the board may grant such a discharge prior to the expiration of the full term or maximum term to any person who has been on unrevoked presumptive release, parole [or], conditional release or release to post-release supervision for at least three consecutive years. A discharge granted under this section shall constitute a termination of the sentence with respect to which it was granted. No such discharge shall be granted unless the board of parole is satisfied that the parolee or releasee, otherwise financially able to comply with an order of restitution and the payment of any mandatory surcharge, sex offender registration fee or DNA databank fee previously imposed by a court of competent jurisdiction, has made a good faith effort to comply therewith.

 

           § 14. Subdivision 16 of section 296 of the executive law, as amended by chapter 639 of the laws of 2007, is amended to read as follows:

    16. It shall be an unlawful discriminatory practice, unless specifically required or permitted by statute, for any person, agency, bureau, corporation or association, including the state and any political subdivision thereof, to make any inquiry about, whether in any form of application or otherwise, or to act upon adversely to the individual involved, any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, or by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law, in connection with the licensing, employment or providing of credit or insurance to such individual; provided, [however, that the] further, that no person shall be required to divulge information pertaining to any arrest or criminal accusation of such individual not then pending against that individual which was followed by a termination of that criminal action or proceeding in favor of such individual, as defined in subdivision two of section 160.50 of the criminal procedure law, or by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law, or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law. The provisions [hereof] of this subdivision shall not apply to the licensing activities of governmental bodies in relation to the regulation of guns, firearms and other deadly weapons or in relation to an application for employment as a police officer or peace officer as those terms are defined in subdivisions thirty-three and thirty-four of section 1.20 of the criminal procedure law; provided further that the provisions of this subdivision shall not apply to an application for employment or membership in any law enforcement agency with respect to any arrest or criminal accusation which was followed by a youthful offender adjudication, as defined in subdivision one of section 720.35 of the criminal procedure law, or by a conviction for a violation sealed pursuant to section 160.55 of the criminal procedure law, or by a conviction which is sealed pursuant to section 160.58 of the criminal procedure law.

 

           § 14-a. Subdivision 4 of section 837 of the executive law is amended by adding a new paragraph (b-1) to read as follows:

    (b-1) collect data and undertake research, studies and analyses of judicial diversion programs including but not limited to the judicial diversion program described in article two hundred sixteen of the criminal procedure law; and

 

           § 15. Subdivision 2 of section 212 of the judiciary law is amended by adding a new paragraph (r) to read as follows:

    (r) Ensure that cases eligible for judicial diversion pursuant to article two hundred sixteen of the criminal procedure law shall be assigned to court parts in the manner provided by the chief administrator and that, to the extent practicable, such cases are presided over by judges who, by virtue of the structure, caseload and resources of the parts and the judges' training, are in the best position to provide effective supervision over such cases, such as the drug treatment courts. In compliance with these provisions, the chief administrator shall give due weight to the need for diverted defendants to make regular court appearances, and be closely supervised by the court, for the duration of drug treatment and the pendency of the criminal charge.

 

           § 16. Section 19.07 of the mental hygiene law is amended by adding a new subdivision (h) to read as follows:

    (h) The office of alcoholism and substance abuse services shall monitor programs providing care and treatment to inmates in correctional facilities operated by the department of correctional services who have a history of alcohol or substance abuse or dependence. The office shall also develop guidelines for the operation of alcohol and substance abuse treatment programs in such correctional facilities in order to ensure that such programs sufficiently meet the needs of inmates with a history of alcohol or substance abuse or dependence and promote the successful transition to treatment in the community upon release. No later than the first day of December of each year, the office shall submit a report regarding the adequacy and effectiveness of alcohol and substance abuse treatment programs operated by the department of correctional services to the governor, the temporary president of the senate, the speaker of the assembly, the chairman of the senate committee on crime victims, crime and correction, and the chairman of the assembly committee on correction.

 

           § 17. Subdivisions 3 and 5 of section 60.04 of the penal law, as added by chapter 738 of the laws of 2004, are amended to read as follows:

    3. Class B felonies. Every person convicted of a class B felony must be sentenced to imprisonment in accordance with the applicable provisions of section 70.70 of this [title] chapter, [unless such person is convicted of a class B felony and is sentenced to] a definite sentence of imprisonment with a term of one year or less or probation in accordance with section 65.00 of this [title] chapter provided, however, a person convicted of criminal sale of a controlled substance to a child as defined in section 220.48 of this chapter must be sentenced to a determinate sentence of imprisonment in accordance with the applicable provisions of section 70.70 of this chapter or to a sentence of probation in accordance with the opening paragraph of paragraph (b) of subdivision one of section 65.00 of this chapter.

    5. Multiple felony offender. Where the court imposes a sentence pursuant to subdivision three of section 70.70 of this chapter upon a second felony drug offender, as defined in paragraph (b) of subdivision one of section 70.70 of this [title] chapter, it must sentence such offender to imprisonment in accordance with the applicable provisions of section 70.70 of this [title] chapter, a definite sentence of imprisonment with a term of one year or less, or probation in accordance with section 65.00 of this chapter, provided, however, that where the court imposes a sentence upon a class B second felony drug offender, it must sentence such offender to a determinate sentence of imprisonment in accordance with the applicable provisions of section 70.70 of this chapter or to a sentence of probation in accordance with the opening paragraph of paragraph (b) of subdivision one of section 65.00 of this chapter. When the court imposes sentence on a second felony drug offender pursuant to subdivision four of section 70.70 of this chapter, it must impose a determinate sentence of imprisonment in accordance with such subdivision.

 

           § 18. Section 60.04 of the penal law is amended by adding a new subdivision 7 to read as follows:

    7. a. Shock incarceration participation. When the court imposes a sentence of imprisonment which requires a commitment to the department of correctional services upon a person who stands convicted of a controlled substance or marihuana offense, upon motion of the defendant, the court may issue an order directing that the department of correctional services enroll the defendant in the shock incarceration program as defined in article twenty-six-A of the correction law, provided that the defendant is an eligible inmate, as described in subdivision one of section eight hundred sixty-five of the correction law. Notwithstanding the foregoing provisions of this subdivision, any defendant to be enrolled in such program pursuant to this subdivision shall be governed by the same rules and regulations promulgated by the department of correctional services, including without limitation those rules and regulations establishing requirements for completion and such rules and regulations governing discipline and removal from the program.

    b. (i) In the event that an inmate designated by court order for enrollment in the shock incarceration program requires a degree of medical care or mental health care that cannot be provided at a shock incarceration facility, the department, in writing, shall notify the inmate, provide a proposal describing a proposed alternative-to-shock-incarceration program, and notify him or her that he or she may object in writing to placement in such alternative-to-shock-incarceration program. If the inmate objects in writing to placement in such alternative-to-shock-incarceration program, the department of correctional services shall notify the sentencing court, provide such proposal to the court, and arrange for the inmate's prompt appearance before the court. The court shall provide the proposal and notice of a court appearance to the people, the inmate and the appropriate defense attorney. After considering the proposal and any submissions by the parties, and after a reasonable opportunity for the people, the inmate and counsel to be heard, the court may modify its sentencing order accordingly, notwithstanding the provisions of section 430.10 of the criminal procedure law.

    (ii) An inmate who successfully completes an alternative-to-shock-incarceration program within the department of correctional services shall be treated in the same manner as a person who has successfully completed the shock incarceration program, as set forth in subdivision four of section eight hundred sixty-seven of the correction law.

 

           § 19. The opening paragraph of paragraph (b) of subdivision 1 of section 65.00 of the penal law, as amended by chapter 410 of the laws of 1979, is amended to read as follows:

    The court, with the concurrence of either the administrative judge of the court or of the judicial district within which the court is situated or such administrative judge as the presiding justice of the appropriate appellate division shall designate, may sentence a person to a period of probation upon conviction of a class A-II felony [or a class B felony] defined in article two hundred twenty, the class B felony defined in section 220.48 of this chapter or any other class B felony defined in article two hundred twenty of this chapter where the person is a second felony drug offender as defined in paragraph (b) of subdivision one of section 70.70 of this chapter, if the prosecutor either orally on the record or in a writing filed with the indictment recommends that the court sentence such person to a period of probation upon the ground that such person has or is providing material assistance in the investigation, apprehension or prosecution of any person for a felony defined in article two hundred twenty or the attempt or the conspiracy to commit any such felony, and if the court, having regard to the nature and circumstances of the crime and to the history, character and condition of the defendant is of the opinion that:

 

           § 20. Subparagraphs (i) and (ii) of paragraph (a) of subdivision 3 of section 65.00 of the penal law, subparagraph (i) as amended by chapter 264 of the laws of 2003, subparagraph (ii) as amended by chapter 738 of the laws of 2004, are amended to read as follows:

    (i) For a felony, other than a class A-II felony [or a class B felony] defined in article two hundred twenty of this chapter or the class B felony defined in section 220.48 of this chapter, or any other class B felony defined in article two hundred twenty of this chapter committed by a second felony drug offender, or a sexual assault, the period of probation shall be five years;

    (ii) For a class A-II felony [controlled substance] drug offender as defined in paragraph (a) of subdivision one of section 70.71 of this [chapter or a class B second felony drug offender as defined in paragraph (b) of subdivision one of section 70.70 of this] chapter as described in paragraph (b) of subdivision one of this section, or a class B felony committed by a second felony drug offender described in paragraph (b) of subdivision one of this section, the period of probation shall be life[, and for a class B felony drug offender as defined in paragraph (a) of subdivision one of section 70.70 of this chapter, the period of probation shall be twenty-five years] and for a class B felony defined in section 220.48 of this chapter, the period of probation shall be twenty-five years;

 

           § 21. Subparagraph (i) of paragraph (a) of subdivision 2 of section 70.70 of the penal law, as amended by chapter 436 of the laws of 2006, is amended to read as follows:

    (i) for a class B felony, the term shall be at least one year and shall not exceed nine years, except that for the class B felony of criminal sale of a controlled substance in or near school grounds as defined in subdivision two of section 220.44 of this chapter or on a school bus as defined in subdivision seventeen of section 220.00 of this chapter or criminal sale of a controlled substance to a child as defined in section 220.48 of this chapter, the term shall be at least two years and shall not exceed nine years;

 

           § 22. Paragraph (b) of subdivision 2 of section 70.70 of the penal law, as added by chapter 738 of the laws of 2004, is amended to read as follows:

    (b) Probation. Notwithstanding any other provision of law, the court may sentence a defendant convicted of a class B, class C, class D or class E felony offense defined in article two hundred twenty or two hundred twenty-one of this chapter to probation in accordance with the provisions of [section] sections 60.04 and 65.00 of this chapter.

 

           § 23. Paragraph (c) of subdivision 2 and paragraphs (a) and (b) of subdivision 3 of section 70.70 of the penal law, as added by chapter 738 of the laws of 2004, are amended and subdivision 2 is amended by adding a new paragraph (d) to read as follows:

    (c) Alternative definite sentence for class B, class C, class D, and class E felonies. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class C, class D or class E felony offense defined in article two hundred twenty or two hundred twenty-one of this chapter, or a class B felony defined in article two hundred twenty of this chapter, other than the class B felony defined in section 220.48 of this chapter, as added by a chapter of the laws of two thousand nine the court may impose a definite sentence of imprisonment and fix a term of one year or less.

    (d) The court may direct that a determinate sentence imposed on a defendant convicted of a class B felony, other than the class B felony defined in section 220.48 of this chapter, pursuant to this subdivision be executed as a sentence of parole supervision in accordance with section 410.91 of the criminal procedure law.

    (a) Applicability. This subdivision shall apply to a second felony drug offender whose prior felony conviction was not a violent felony.

    (b) Authorized sentence. Except as provided in [paragraph] paragraphs (c) [or], (d) and (e) of this subdivision, when the court has found pursuant to the provisions of section 400.21 of the criminal procedure law that a defendant is a second felony drug offender who stands convicted of a class B, class C, class D or class E felony offense defined in article two hundred twenty or two hundred twenty-one of this chapter the court shall impose a determinate sentence of imprisonment. Such determinate sentence shall include as a part thereof a period of post-release supervision in accordance with section 70.45 of this article. The terms of such determinate sentence shall be imposed by the court in whole or half years as follows:

    (i) for a class B felony, the term shall be at least [three and one-half] two years and shall not exceed twelve years;

    (ii) for a class C felony, the term shall be at least [two] one and one-half years and shall not exceed eight years;

    (iii) for a class D felony, the term shall be at least one and one-half years and shall not exceed four years; and

    (iv) for a class E felony, the term shall be at least one and one-half years and shall not exceed two years.

 

           § 24. Paragraph (c) of subdivision 3 of section 70.70 of the penal law, as added by chapter 738 of the laws of 2004, is amended to read as follows:

    (c) [Lifetime probation] Probation. Notwithstanding any other provision of law, the court may sentence a [defendant] second felony drug offender convicted of a class B felony [defined in article two hundred twenty of this chapter] to lifetime probation in accordance with the provisions of section 65.00 of this chapter and may sentence a second felony drug offender convicted of a class C, class D or class E felony to probation in accordance with the provisions of section 65.00 of this chapter.

 

           § 25. Subdivision 3 of section 70.70 of the penal law is amended by adding a new paragraph (e) to read as follows:

    (e) Alternate definite sentence for class C, class D and class E felonies. If the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose a determinate sentence upon a person convicted of a class C, class D or class E felony offense defined in article two hundred twenty or two hundred twenty-one of this chapter, the court may impose a definite sentence of imprisonment and fix a term of one year or less.

 

           § 26. Paragraph (a) of subdivision 2 of section 70.71 of the penal law, as added by chapter 738 of the laws of 2004, is amended and a new subdivision 5 is added to read as follows:

    (a) Applicability. Except as provided in subdivision three [or], four or five of this section, this subdivision shall apply to a person convicted of a class A felony as defined in article two hundred twenty of this chapter.

    5. Sentence of imprisonment for operating as a major trafficker.

    (a) Applicability. This subdivision shall apply to a person convicted of the class A-I felony of operating as a major trafficker as defined in section 220.77 of this chapter.

    (b) Authorized sentence. Except as provided in paragraph (c) of this subdivision, the court shall impose an indeterminate term of imprisonment for an A-I felony, in accordance with the provisions of section 70.00 of this article.

    (c) Alternative determinate sentence. If a defendant stands convicted of violating section 220.77 of this chapter, and if the court, having regard to the nature and circumstances of the crime and the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose the indeterminate sentence for a class A-I felony specified under section 70.00 of this article, the court may instead impose the determinate sentence of imprisonment authorized by clause (i) of subparagraph (b) of subdivision two of this section for a class A-I drug felony; in such case, the reasons for the court's opinion shall be set forth on the record.

 

           § 27. Section 220.00 of the penal law is amended by adding three new subdivisions 18, 19 and 20 to read as follows:

    18. "Controlled substance organization" means four or more persons sharing a common purpose to engage in conduct that constitutes or advances the commission of a felony under this article.

    19. "Director" means a person who is the principal administrator, organizer, or leader of a controlled substance organization or one of several principal administrators, organizers, or leaders of a controlled substance organization.

    20. "Profiteer" means a person who: (a) is a director of a controlled substance organization; (b) is a member of a controlled substance organization and has managerial responsibility over one or more other members of that organization; or (c) arranges, devises or plans one or more transactions constituting a felony under this article so as to obtain profits or expected profits. A person is not a profiteer if he or she is acting only as an employee; or if he or she is acting as an accommodation to a friend or relative; or if he or she is acting only under the direction and control of others and exercises no substantial, independent role in arranging or directing the transactions in question.

 

           § 28. The penal law is amended by adding a new section 220.48 to read as follows: § 220.48 Criminal sale of a controlled substance to a child.

    A person is guilty of criminal sale of a controlled substance to a child when, being over twenty-one years old, he or she knowingly and unlawfully sells a controlled substance in violation of section 220.34 or 220.39 of this article to a person less than seventeen years old.

    Criminal sale of a controlled substance to a child is a class B felony.

   

§ 29. The penal law is amended by adding a new section 220.77 to read as follows: § 220.77 Operating as a major trafficker.

    A person is guilty of operating as a major trafficker when:

    1. Such person acts as a director of a controlled substance organization during any period of twelve months or less, during which period such controlled substance organization sells one or more controlled substances, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more; or

    2. As a profiteer, such person knowingly and unlawfully sells, on one or more occasions within six months or less, a narcotic drug, and the proceeds collected or due from such sale or sales have a total aggregate value of seventy-five thousand dollars or more.

    3. As a profiteer, such person knowingly and unlawfully possesses, on one or more occasions within six months or less, a narcotic drug with intent to sell the same, and such narcotic drugs have a total aggregate value of seventy-five thousand dollars or more.

    Operating as a major trafficker is a class A-I felony.

     § 30. Paragraph (a) of subdivision 1 of section 460.10 of the penal law, as separately amended by chapters 312 and 472 of the laws of 2008, is amended to read as follows:

    (a) Any of the felonies set forth in this chapter: sections 120.05, 120.10 and 120.11 relating to assault; sections 125.10 to 125.27 relating to homicide; sections 130.25, 130.30 and 130.35 relating to rape; sections 135.20 and 135.25 relating to kidnapping; section 135.35 relating to labor trafficking; section 135.65 relating to coercion; sections 140.20, 140.25 and 140.30 relating to burglary; sections 145.05, 145.10 and 145.12 relating to criminal mischief; article one hundred fifty relating to arson; sections 155.30, 155.35, 155.40 and 155.42 relating to grand larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to health care fraud; article one hundred sixty relating to robbery; sections 165.45, 165.50, 165.52 and 165.54 relating to criminal possession of stolen property; sections 165.72 and 165.73 relating to trademark counterfeiting; sections 170.10, 170.15, 170.25, 170.30, 170.40, 170.65 and 170.70 relating to forgery; sections 175.10, 175.25, 175.35, 175.40 and 210.40 relating to false statements; sections 176.15, 176.20, 176.25 and 176.30 relating to insurance fraud; sections 178.20 and 178.25 relating to criminal diversion of prescription medications and prescriptions; sections 180.03, 180.08, 180.15, 180.25, 180.40, 180.45, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.20, 200.22, 200.25, 200.27, 215.00, 215.05 and 215.19 relating to bribery; sections 187.10, 187.15, 187.20 and 187.25 relating to residential mortgage fraud, sections 190.40 and 190.42 relating to criminal usury; section 190.65 relating to schemes to defraud; sections 205.60 and 205.65 relating to hindering prosecution; sections 210.10, 210.15, and 215.51 relating to perjury and contempt; section 215.40 relating to tampering with physical evidence; sections 220.06, 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43, 220.46, 220.55 [and], 220.60 and 220.77 relating to controlled substances; sections 225.10 and 225.20 relating to gambling; sections 230.25, 230.30, and 230.32 relating to promoting prostitution; section 230.34 relating to sex trafficking; sections 235.06, 235.07, 235.21 and 235.22 relating to obscenity; sections 263.10 and 263.15 relating to promoting a sexual performance by a child; sections 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 and the provisions of section 265.10 which constitute a felony relating to firearms and other dangerous weapons; and sections 265.14 and 265.16 relating to criminal sale of a firearm; and section 275.10, 275.20, 275.30, or 275.40 relating to unauthorized recordings; and sections 470.05, 470.10, 470.15 and 470.20 relating to money laundering; or

 

           § 31. Paragraphs (a) and (b) of subdivision 7 of section 480.00 of the penal law, as added by chapter 655 of the laws of 1990, are amended to read as follows:

    (a) a conviction of a person for a violation of section 220.18, 220.21, 220.41, [or] 220.43, or 220.77 of this chapter, or where the accusatory instrument charges one or more of such offenses, conviction upon a plea of guilty to any of the felonies for which such plea is otherwise authorized by law or a conviction of a person for conspiracy to commit a violation of section 220.18, 220.21, 220.41, [or] 220.43, or 220.77 of [the penal law] this chapter, where the controlled substances which are the object of the conspiracy are located in the real property which is the subject of the forfeiture action; or

    (b) three or more violations of any of the felonies defined in section 220.09, 220.16, 220.18, 220.21, 220.31, 220.34, 220.39, 220.41, 220.43, 220.77, or 221.55 of this chapter, which violations do not constitute a single criminal offense as defined in subdivision one of section 40.10 of the criminal procedure law, or a single criminal transaction, as defined in paragraph (a) of subdivision two of section 40.10 of the criminal procedure law, and at least one of which resulted in a conviction of such offense, or where the accusatory instrument charges one or more of such felonies, conviction upon a plea of guilty to a felony for which such plea is otherwise authorized by law; or

 

           § 32. Severability. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid and after exhaustion of all further judicial review, the judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part of this act directly involved in the controversy in which the judgment shall have been rendered.

 

           § 33. This act shall take effect immediately; provided however that:

    (a) section three of this act shall take effect on the sixtieth day after it shall have become a law;

    (b) sections four and ten of this act shall take effect six months after this act shall have become a law;

    (c) sections eleven, twenty-six, twenty-seven, twenty-eight, twenty-nine, thirty and thirty-one of this act shall take effect on the first of November next succeeding the date on which it shall have become a law;

    (d) section sixteen of this act shall take effect on the one hundred twentieth day after it shall have become a law;

    (e) section nine of this act shall take effect six months after it shall have become a law, except that the amendments to subdivision 4 of section 440.46 of the criminal procedure law made by section nine of this act shall take effect immediately;

    (f) sections four, five, six, seven, eight, seventeen, nineteen, twenty, twenty-two, twenty-three, twenty-four, and twenty-five of this act shall apply to offenses committed on or after the date this act shall have become a law, and shall also apply to offenses committed before such date provided that sentence upon conviction for such offense has not been imposed on or before such date; and

    (g) provided further that the amendments to section 410.91 of the criminal procedure law made by sections six and eight of this act shall not affect the repeal of such section and shall be deemed to be repealed therewith.

  

§ 2. Severability clause. If any clause, sentence, paragraph, subdivision, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section or part thereof directly involved in the controversy in which such judgment shall have been rendered. It is hereby declared to be the intent of the legislature that this act would have been enacted even if such invalid provisions had not been included herein.

   

§ 3. This act shall take effect immediately provided, however, that the applicable effective date of Parts A through AAA of this act shall be as specifically set forth in the last section of such Parts.


PART L


Section 1. Subdivision 1 of section 865 of the correction law, as amended by chapter 738 of the laws of 2004, is amended to read as follows:

    1. "Eligible inmate" means a person sentenced to an indeterminate term of imprisonment who will become eligible for release on parole within three years or sentenced to a determinate term of imprisonment who will become eligible for conditional release within three years, who has not reached the age of [forty] fifty years, who has not previously been convicted of a felony upon which an indeterminate or determinate term of imprisonment was imposed and who was between the ages of sixteen and [forty] fifty years at the time of commission of the crime upon which his or her present sentence was based except, however, an eligible inmate shall not include a person sentenced [to a determinate sentence of three and one-half years or more] as a second felony drug offender pursuant to subdivision [three] four of section 70.70 of the penal law for a conviction of a class B felony offense defined in article two hundred twenty of the penal law. Notwithstanding the foregoing, no person who is convicted of any of the following crimes shall be deemed eligible to participate in this program: (a) a violent felony offense as defined in article seventy of the penal law, (b) an A-I felony offense, (c) [manslaughter in the second degree, vehicular manslaughter in the second degree, vehicular manslaughter in the first degree, and criminally negligent] any homicide offense as defined in article one hundred twenty-five of the penal law, (d) [rape in the second degree, rape in the third degree, criminal sexual act in the second degree, criminal sexual act in the third degree, attempted sexual abuse in the first degree, attempted rape in the second degree and attempted criminal sexual act in the second degree] any felony sex offense as defined in [articles one hundred ten and] article one hundred thirty of the penal law and (e) any escape or absconding offense as defined in article two hundred five of the penal law.

 

           § 2. Subdivision 2 of section 865 of the correction law, as added by chapter 261 of the laws of 1987, is amended to read as follows:

    2. "Shock incarceration program" means a program pursuant to which eligible inmates are selected [directly at reception centers] to participate in the program and serve a period of six months in a shock incarceration facility, which shall provide rigorous physical activity, intensive regimentation and discipline and rehabilitation therapy and programming. Such inmates may be selected either: (i) at a reception center; or (ii) at a general confinement facility when the otherwise eligible inmate then becomes eligible for release on parole within three years in the case of an indeterminate term of imprisonment, or then becomes eligible for conditional release within three years in the case of a determinate term of imprisonment.

 

           § 3. Subdivision 2 of section 866 of the correction law, as added by chapter 261 of the laws of 1987, is amended to read as follows:

    2. [For each reception center the] The commissioner shall appoint or cause to be appointed a shock incarceration selection committee at one or more designated correctional facilities, which shall meet on a regularly scheduled basis to review all eligible inmates transferred to such facility for screening and all applications for the shock incarceration program.

 

           

§ 4. The correction law is amended by adding a new section 803-b to read as follows:

    § 803-b. Limited credit time allowances for inmates serving indeterminate or determinate sentences imposed for specified offenses. 1. Definitions. As used in this section the following terms shall have the following meanings:

    (a) "eligible offender" means a person under the custody of the department or confined in a facility in the department of mental hygiene, other than a person who is subject to a sentence imposed for murder in the first degree as defined in section 125.27 of the penal law, an offense defined in article one hundred thirty of such law, or an attempt or a conspiracy to commit any such offense, who is otherwise subject to:

    (i) an indeterminate sentence imposed for any class A-I felony offense other than criminal possession of a controlled substance in the first degree as defined in section 220.21 of the penal law or criminal sale of a controlled substance in the first degree as defined in section 220.43 of such law or an attempt or a conspiracy to commit such controlled substance offense; or

    (ii) an indeterminate or determinate sentence imposed for an offense listed in subdivision one of section 70.02 of the penal law; or

    (iii) an indeterminate or determinate sentence imposed for an offense defined in article one hundred twenty-five of the penal law.

    (b) "limited credit time benefit" means:

    (i) in the case of an eligible offender who is subject to an indeterminate sentence with a maximum term of life imprisonment, such offender shall be eligible for release six months before the completion of the controlling minimum period of imprisonment as defined by subdivision one of section 70.40 of the penal law; or

    (ii) (A) in the case of an eligible offender who is not subject to an indeterminate sentence with a maximum term of life imprisonment, such offender shall be eligible for conditional release six months earlier than as provided by paragraph (b) of subdivision one of section 70.40 of the penal law, provided that the department determines such offender has earned the full amount of good time authorized by section eight hundred three of this article; the withholding of any good behavior time credit by the department shall render an inmate ineligible for the credit defined herein;

    (B) in the event the limited credit time benefit defined herein causes such conditional release date to precede the parole eligibility date as calculated pursuant to subdivision one of section 70.40 of the penal law, a limited credit time benefit shall also be applied to the parole eligibility date, but only to the extent necessary to cause such parole eligibility date to be the same date as the conditional release date;

    (C) an inmate shall not be eligible for the credit defined herein if he or she is returned to the department pursuant to a revocation of presumptive release, parole, conditional release, or post-release supervision and has not been sentenced to an additional indeterminate or determinate term of imprisonment.

    (iii) Regardless of the number of sentences to which an eligible offender is subject, the limited credit time benefit authorized pursuant to this section shall be limited to a single six-month credit applied to such person's parole eligibility date pursuant to subparagraph (i) of this paragraph or to such person's conditional release date pursuant to subparagraph (ii) of this paragraph. Except as provided in clause (B) of subparagraph (ii) of this paragraph, the limited credit time benefit authorized pursuant to this section shall not be applied to an eligible offender's parole eligibility date and conditional release date.

    (c) "significant programmatic accomplishment" means that the inmate:

    (i) participates in no less than two years of college programming; or

    (ii) obtains a masters of professional studies degree; or

    (iii) successfully participates as an inmate program associate for no less than two years; or

    (iv) receives a certification from the state department of labor for his or her successful participation in an apprenticeship program; or

    (v) successfully works as an inmate hospice aid for a period of no less than two years.

    (d) "serious disciplinary infraction" or "overall poor institutional record" shall be defined in regulations promulgated by the commissioner and need not be the same as the regulations promulgated for the meaning of serious disciplinary infraction pursuant to paragraph (d) of subdivision one of section eight hundred three of this article.

    (e) "disqualifying judicial determination" means a judicial determination that the person, while an inmate, commenced or continued a civil action or proceeding or claim that was found to be frivolous as defined in subdivision (c) of section eight thousand three hundred three-a of the civil practice law and rules, or an order of a federal court pursuant to rule 11 of the federal rules of civil procedure imposing sanctions in an action commenced by a person while an inmate against a state agency, officer or employee.

    2. Every eligible offender under the custody of the department or confined in a facility in the department of mental hygiene may earn a limited credit time allowance if such offender successfully participates in the work and treatment program assigned pursuant to section eight hundred five of this article and:

    (a) successfully completes one or more significant programmatic accomplishments; and

    (b) has not committed a serious disciplinary infraction or maintained an overall negative institutional record as defined in rules and regulations promulgated by the commissioner; and

    (c) has not received a disqualifying judicial determination.

    3. No person shall have the right to demand or require the credit authorized by this section. The commissioner may revoke at any time such credit for any disciplinary infraction committed by the inmate or for any failure to continue to participate successfully in any assigned work and treatment program after the certificate of earned eligibility has been awarded. Any action by the commissioner pursuant to this section shall be deemed a judicial function and shall not be reviewable if done in accordance with law.    


§ 5. This act shall take effect immediately.

The Legislature of the STATE OF NEW YORK ss:
     Pursuant to the authority vested in us by section 70-b of the Public Officers Law, we hereby jointly certify that this slip copy of this session law was printed under our direction and, in accordance with such section, is entitled to be read into evidence.

MALCOLM A. SMITH
Temporary President of the Senate
SHELDON SILVER
Speaker of the Assembly