§ 216.05 Judicial diversion program; court procedures.\n 1. At any time after the arraignment of an eligible defendant, but\nprior to the entry of a plea of guilty or the commencement of trial, the\ncourt at the request of the eligible defendant, may order an alcohol and\nsubstance use evaluation. An eligible defendant may decline to\nparticipate in such an evaluation at any time. The defendant shall\nprovide a written authorization, in compliance with the requirements of\nany applicable state or federal laws, rules or regulations authorizing\ndisclosure of the results of the assessment to the defendant's attorney,\nthe prosecutor, the local probation department, the court, authorized\ncourt personnel and other individuals specified in such authorization\nfor the sole purpose of determining whether the defendant should be\noffered judicial diversion for treatment for substance use, alcohol use\nand any co-occurring mental disorder or mental illness.\n 2. Upon receipt of the completed alcohol and substance use evaluation\nreport, the court shall provide a copy of the report to the eligible\ndefendant and the prosecutor.\n 3. (a) Upon receipt of the evaluation report either party may request\na hearing on the issue of whether the eligible defendant should be\noffered alcohol or substance use treatment pursuant to this article. At\nsuch a proceeding, which shall be held as soon as practicable so as to\nfacilitate early intervention in the event that the defendant is found\nto need alcohol or substance use treatment, the court may consider oral\nand written arguments, may take testimony from witnesses offered by\neither party, and may consider any relevant evidence including, but not\nlimited to, evidence that:\n (i) the defendant had within the preceding ten years (excluding any\ntime during which the offender was incarcerated for any reason between\nthe time of the acts that led to the youthful offender adjudication and\nthe time of commission of the present offense) been adjudicated a\nyouthful offender for: (A) a violent felony offense as defined in\nsection 70.02 of the penal law; or (B) any offense for which a merit\ntime allowance is not available pursuant to subparagraph (ii) of\nparagraph (d) of subdivision one of section eight hundred three of the\ncorrection law; and\n (ii) in the case of a felony offense defined in subdivision five of\nsection 410.91 of this chapter, or section 165.10, 165.11, 190.79 or\n190.80 of the penal law, any statement of or submitted by the victim, as\ndefined in paragraph (a) of subdivision two of section 380.50 of this\nchapter.\n (b) Upon completion of such a proceeding, the court shall consider and\nmake findings of fact with respect to whether:\n (i) the defendant is an eligible defendant as defined in subdivision\none of section 216.00 of this article;\n (ii) the defendant has a history of alcohol or substance use;\n (iii) such alcohol or substance use is a contributing factor to the\ndefendant's criminal behavior;\n (iv) the defendant's participation in judicial diversion could\neffectively address such use; and\n (v) institutional confinement of the defendant is or may not be\nnecessary for the protection of the public.\n 4. When an authorized court determines, pursuant to paragraph (b) of\nsubdivision three of this section, that an eligible defendant should be\noffered alcohol or substance use treatment, or when the parties and the\ncourt agree to an eligible defendant's participation in alcohol or\nsubstance use treatment, an eligible defendant may be allowed to\nparticipate in the judicial diversion program offered by this article.\nPrior to the court's issuing an order granting judicial diversion, the\neligible defendant shall be required to enter a plea of guilty to the\ncharge or charges; provided, however, that no such guilty plea shall be\nrequired when:\n (a) the people and the court consent to the entry of such an order\nwithout a plea of guilty; or\n (b) based o
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