BILL NUMBER: S5681
SPONSOR: SALAZAR
 
TITLE OF BILL:
An act to amend the penal law and the criminal procedure law, in
relation to second felony drug offenders; and to repeal subdivision 4 of
section 70.70 of the penal law relating thereto
 
PURPOSE:
To ensure that all individuals facing drug charges are treated similar-
ly, without regard to prior non-drug related convictions.
 
SUMMARY OF PROVISIONS:
Section 1: Amends paragraph (a) of subdivision 3 of section 70.70 of the
penal law.
Section 2: Repeals subdivision 4 of section 70.70 of the penal law.
Section 3: Amends paragraph (a) of subdivision 1 of section 216.00 of
the criminal procedure law.
Section 4: Sets forth the effective date.
 
JUSTIFICATION:
When the "Rockefeller drug laws" were revised in 2004 and 2009,
sentences were reduced for people charged with drug crimes. These were
positive steps forward in New York regarding the goal of transforming
the criminal legal system to be more humane and just.
However, an anomaly in these reforms was presented in 2009 with the
introduction of a new provision that mandated sentence enhancements for
individuals charged with non-violent drug offenses if they had a prior
violent felony conviction. (Penal Law 70.70(4)).
This had never previously been required. As a result of the addition of
Penal Law 70.70(4) and the exclusion of a category of drug offenders
from eligibility for judicial diversion, people charged with drug crimes
are the only people charged with non-violent offenses whose sentences
are enhanced because they have a predicate felony conviction for a
violent crime. In the 2009 "Rockefeller drug law" revisions, these indi-
viduals were rendered ineligible for the judicial diversion program even
though it has been demonstrated that community-based drug treatment is a
far more effective and cost-effective way to reduce recidivism than
incar- ceration, thus benefiting not just the individual but also their
communities and the public at large.
New York must repeal 70.70 (4), to realign New York's sentencing laws,
allowing individuals charged with drug crimes to be treated identically
with individuals charged with other non-violent offenses, basing
sentences on their current offenses and not prior criminal history.
CPL 216.00 must also be amended, making these individuals eligible for
the judicial diversion program so judges can send them to treatment
rather than incarceration when that is appropriate. Because individuals
with prior violent felony convictions are not eligible for merit time,
both CPL 216.00 (1)(a)(i) and (ii) and a portion of (iii) must be
stricken in order to make these individuals eligible for the judicial
diversion program. These amendments will move New York one step closer
to meeting the current calls for criminal legal system reforms and
social justice.
This bill is supported, among others, by the NYS Office of Court Admin-
istration Criminal Law Advisory Committee.
 
RACIAL JUSTICE AND SOCIAL JUSTICE IMPACT:
Given the well-documented systemic racism in the criminal legal system,
these laws no doubt have a disproportionate impact on New York's Black
and Latinx communities, as individuals in these communities are dispro-
portionately arrested and convicted for drug offenses far beyond their
population and drug usage rates. This bill, to repeal PL 70.70 (4), and
amend CPL § 216.00, would move New York one step closer to addressing
inequities in the legal system.
 
LEGISLATIVE HISTORY:
SENATE:
2024: S301 (Salazar) - Referred to Codes
2023: S301 (Salazar) - Referred to Codes
2021-2022: S6638A (Salazar)- Referred to Codes
ASSEMBLY:
2024: A1317 (Aubry) - Referred to Codes
2023: A1317 (Aubry) - Referred to Codes
2021-2022: A7453A (Aubry)- Referred to Codes
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
This act will take effect immediately and shall apply to cases where a
sentence is imposed on or after the effective date.

Statutes affected:
S5681: 70.70 penal law, 70.70(3) penal law, 70.70(4) penal law, 216.00 criminal procedure law, 216.00(1) criminal procedure law