THE NEW DRUG LAWS

1. The Legal Aid Society Criminal Defense Practice William Gibney Director Special Litigation Unit 212-577-3419 Slides prepared by: AL O’CONNOR NEW YORK STATE DEFENDERS ASSOCIATION THE NEW DRUG LAWS

2. New Sentencing Options First Felony Drug - Class B through E (including sale near schools) Imprisonment not required – Probation, splits, local jail authorized Prison sentences remain same Judicial Diversion authorized

3. New Sentencing Options Second Felony Offenders (prior non-violent) Class C, D and E – imprisonment not required, probation, splits, local jail authorized Judicial Diversion Authorized Prison terms the same, except Class C minimum reduced to 1 ½ from 2

4. New Sentencing Options Second Felony Offenders Class B (prior non-violent) Judicial Diversion authorized If not diverted, imprisonment mandatory – minimum reduced from 3 ½ to 2 years Client may be SHOCK eligible

5. New Sentencing Options Second Felony Offenders (prior violent) None – mandatory prison terms unchanged SHOCK Class B – categorically ineligible SHOCK - Class C, D and E - Limited eligibility (e.g., where prior violent did not result in state prison sentence) – judicial placement included No Willard parole supervision sentence

6. Willard Parole Supervision Sentence D.A. consent eliminated for Willard sentences Many property crime felonies, including newly added burglary in the third degree Property crimes - second felony offenders only (prior non-violent)

7. Willard Parole Supervision Sentence Property Crimes: Criminal mischief in the second and third degrees Grand larceny in the fourth degree (P.L. § 155.30 except subdivisions 7 and 11) Grand larceny in the third degree (except firearms) Unauthorized use of a vehicle in the second degree Criminal possession of a stolen property in the third and fourth degrees (except firearms) Forgery in the second degree Criminal possession of forged instrument in the second degree Unlawfully using slugs in the first degree Burglary in the third degree

8. Willard Parole Supervision Sentence Drug Crimes – Class B (first felony offenders) Class C, D, and E – second felony offenders (prior non-violent)

9. SHOCK New authority for direct judicial placement - drug cases Eligible inmate – eligible for release on parole or conditional release within 3 years, and has not reached the age of 50 Not previously committed to DOCS No second felony Class B drug offenders (prior violent) No current violent, homicide, sex, A-I, or escape convictions

10. SHOCK Eligibility Under 50 First Bid Out in 3 No second B drug (prior violent) No SHAVE (Sex, Homicide, A-I, Violent, Escape)

11. SHOCK – Direct judicial placement Penal Law § 60.04 (7) On defendant’s motion, the court may order DOCS to place an otherwise eligible defendant directly in the SHOCK incarceration program SHOCK to “promptly commence” DOCS may determine that inmate “has a medical or mental health condition that will render the inmate unable to successfully complete” the program

12. SHOCK – Direct judicial placement DOCS must offer alternative program, completion of which will lead to release on same terms as SHOCK Inmate may object to alternative program After a hearing, court authorized to modify sentence

13. Rolling SHOCK admissions DOCS may select SHOCK participants at reception centers, or at a general confinement facility when the otherwise eligible inmate is within 3 years of release

14. Judicial Diversion New CPL § 216 – effective 10/7/09 Eligible: All Class B through E drug and marijuana felonies All Willard-eligible felonies (property crimes) First felony offenders and second felony offenders (with prior non-violent)

15. Judicial Diversion - Ineligible Second felony offenders with predicate violent felony Note: Clients charged with Willard list property crimes where prior violent was outside 10 year look back are eligible for diversion, even though Willard sentence is not available. Predicate felony sex offense, homicide conviction, P.L. Art. 263 crime, aggravated harassment of employee by inmate

16. Judicial Diversion - Ineligible Predicate Class A felony drug conviction Client ever adjudicated second or persistent violent felony offender Currently charged with violent felony or merit ineligible crime, which requires imprisonment upon conviction, as long as charge is pending.

17. Judicial Diversion - Procedure Request for alcohol or substance abuse evaluation by defendant at any time prior to guilty plea or commencement of trial Report by court approved entity, licensed health care professional with experience in treatment of alcohol and substance abuse, or addiction and substance abuse counselor credentialed by OASAS

18. Judicial Diversion - Procedure Recommendations: • Whether defendant has history of alcohol or substance abuse or dependence, including “co-occurring mental disorder or mental illness and the relationship between abuse or dependence” and mental condition • Whether it could be effectively addressed by diversion • Treatment modality, level of care and length of proposed treatment

19. Judicial Diversion - Procedure Findings of fact with respect to whether: the defendant is statutorily eligible for diversion; the defendant has a history of alcohol or substance abuse or dependence; which is a contributing factor to the defendant’s criminal behavior;

20. Judicial Diversion - Procedure Findings of fact with respect to whether: the defendant’s participation in judicial diversion could effectively address such abuse or dependence; and institutional confinement of the defendant is or may not be necessary for the protection of the public

21. Judicial Diversion - Procedure Guilty plea required except where it is “likely to result in severe collateral consequences” Securing order releasing defendant to conditions of diversion program participation

22. Judicial Diversion - Procedure Successful completion can lead to: Interim probation – followed by withdrawal of guilty plea and dismissal of indictment (or SCI) Interim probation – followed by reduction to misdemeanor Withdrawal of plea and dismissal of indictment (or SCI)

23. Judicial Diversion - Procedure Violation of program conditions: Modification of conditions Graduated sanctions Termination Failure in program 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 by Penal Law § 70.70 (2)(b)(c) - i.e., probation and local jail.

24. Conditional Sealing (CPL § 160.58) Drug, marijuana and Willard-eligible crimes Must complete judicial diversion, DTAP or similar judicially sanctioned substance abuse program Sealing available for up to 3 prior drug or marijuana misdemeanor convictions Notice & hearing rights for D.A.

25. Conditional Sealing (CPL § 160.58) Seal undone when charged with new crime – permanently undone if subsequently convicted Despite sealing, records available to law enforcement, “qualified agencies” with rap sheet access, for gun licensing purposes, and police agency employment checks. Effective: June 6, 2009

26. Resentencing of Class B drug offenders Class B old law sentences where indeterminate maximum more than 3 years Accompanying Class C, E and E drug sentences “imposed at the same time” or “included in the same order of commitment” as the Class B drug sentence Excluded: Also in custody for violent felony or merit time ineligible crime Prior violent felony conviction less than 10 years old as measured from the date of resentencing application Ever adjudicated a second or persistent violent felony offender