New York State Consolidated Laws

Part 1 - Article 3 - Family Court

• NY Laws ›
• Family Court ›
• Article 3 ›
• Part 1

  S 301.1. Purpose. The  purpose  of  this  article  is  to establish
  procedures in accordance with  due  process  of  law  (a)  to  determine
  whether  a  person  is  a  juvenile  delinquent  and  (b)  to  issue  an
  appropriate order of disposition  for  any  person  who  is  adjudged  a
  juvenile  delinquent.  In  any  proceeding under this article, the court
  shall consider the needs and best interests of the respondent as well as
  the need for protection of the community.

  S 301.2. Definitions. As  used in this article, the following terms
  shall have the following meanings:
    1. "Juvenile delinquent" means a  person  over  seven  and  less  than
  sixteen years of age, who, having committed an act that would constitute
  a  crime if committed by an adult, (a) is not criminally responsible for
  such conduct by reason of infancy, or (b) is the defendant in an  action
  ordered  removed  from  a criminal court to the family court pursuant to
  article seven hundred twenty-five of the criminal procedure law.
    2. "Respondent" means the person against whom a  juvenile  delinquency
  petition is filed pursuant to section 310.1. Provided, however, that any
  act  of  the respondent required or authorized under this article may be
  performed by his or her attorney unless expressly provided otherwise.
    3. "Detention" means the temporary care and  maintenance  of  children
  away from their own homes, as defined in section five hundred two of the
  executive  law.  Detention of a person alleged to be or adjudicated as a
  juvenile delinquent shall be authorized only in a facility certified  by
  the  division for youth as a detention facility pursuant to section five
  hundred three of the executive law.
    4. "Secure detention  facility"  means  a  facility  characterized  by
  physically restricting construction, hardware and procedures.
    5.  "Non-secure  detention facility" means a facility characterized by
  the  absence  of  physically  restricting  construction,  hardware   and
  procedures.
    6.  "Fact-finding  hearing"  means  a hearing to determine whether the
  respondent or respondents committed the crime or crimes alleged  in  the
  petition or petitions.
    7.  "Dispositional  hearing"  means a hearing to determine whether the
  respondent requires supervision, treatment or confinement.
    8. "Designated felony act" means an act which, if done  by  an  adult,
  would  be  a  crime: (i) defined in sections 125.27 (murder in the first
  degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the
  first degree); or 150.20 (arson in the first degree) of  the  penal  law
  committed  by  a  person  thirteen, fourteen or fifteen years of age; or
  such conduct committed as a sexually motivated felony, where  authorized
  pursuant  to  section  130.91 of the penal law; (ii) defined in sections
  120.10 (assault in the first degree); 125.20 (manslaughter in the  first
  degree);  130.35 (rape in the first degree); 130.50 (criminal sexual act
  in the first degree); 130.70  (aggravated  sexual  abuse  in  the  first
  degree);  135.20  (kidnapping  in  the second degree) but only where the
  abduction involved the use or threat of use of  deadly  physical  force;
  150.15  (arson  in  the  second  degree) or 160.15 (robbery in the first
  degree) of the penal law committed by a  person  thirteen,  fourteen  or
  fifteen  years of age; or such conduct committed as a sexually motivated
  felony, where authorized pursuant to section 130.91 of  the  penal  law;
  (iii)  defined  in  the  penal law as an attempt to commit murder in the
  first or second degree or kidnapping in the first degree committed by  a
  person  thirteen,  fourteen  or  fifteen  years  of age; or such conduct
  committed as a sexually motivated felony, where authorized  pursuant  to
  section  130.91  of  the  penal  law;  (iv)  defined  in  section 140.30
  (burglary in the  first  degree);  subdivision  one  of  section  140.25
  (burglary  in  the  second  degree);  subdivision  two of section 160.10
  (robbery in the second degree) of the penal law; or  section  265.03  of
  the  penal  law,  where such machine gun or such firearm is possessed on
  school grounds, as that phrase is defined  in  subdivision  fourteen  of
  section  220.00  of  the  penal  law  committed  by a person fourteen or
  fifteen years of age; or such conduct committed as a sexually  motivated
  felony,  where  authorized  pursuant to section 130.91 of the penal law;
  (v) defined in section 120.05 (assault in the second degree)  or  160.10
  (robbery  in  the  second degree) of the penal law committed by a person
  fourteen or fifteen years of age but only where there has been  a  prior
  finding  by  a  court  that  such person has previously committed an act
  which,  if  committed  by an adult, would be the crime of assault in the
  second degree, robbery in the second degree or any designated felony act
  specified  in  paragraph  (i),  (ii),  or  (iii)  of  this   subdivision
  regardless  of  the  age of such person at the time of the commission of
  the prior act; or (vi) other than a misdemeanor committed by a person at
  least seven but less than sixteen years of age, but only where there has
  been two prior findings by the court that such person  has  committed  a
  prior felony.
    9.  "Designated  class  A  felony  act"  means a designated felony act
  defined in paragraph (i) of subdivision eight.
    10. "Secure facility"  means  a  residential  facility  in  which  the
  respondent  may  be placed under this article, which is characterized by
  physically restricting construction, hardware  and  procedures,  and  is
  designated as a secure facility by the division for youth.
    11.  "Restrictive  placement"  means  a  placement pursuant to section
  353.5.
    12. "Presentment agency" means the agency or authority which  pursuant
  to  section  two  hundred  fifty-four  or  two  hundred  fifty-four-a is
  responsible for presenting a juvenile delinquency petition.
    13. "Incapacitated person" means a respondent  who,  as  a  result  of
  mental  illness,  mental  retardation  or  developmental  disability  as
  defined in subdivisions twenty, twenty-one  and  twenty-two  of  section
  1.03  of  the  mental  hygiene  law,  lacks  capacity  to understand the
  proceedings against him or to assist in his own defense.
    14. Any reference in  this  article  to  the  commission  of  a  crime
  includes any act which, if done by an adult, would constitute a crime.
    15.  "Aggravated  circumstances"  shall  have  the same meaning as the
  definition of such term in  subdivision  (j)  of  section  one  thousand
  twelve of this act.
    16.  "Permanency  hearing"  means  an  initial  hearing  or subsequent
  hearing held in accordance with the provisions of this article  for  the
  purpose  of  reviewing  the foster care status of the respondent and the
  appropriateness of the permanency plan developed by the commissioner  of
  social services or the office of children and family services.
    17.  "Designated  educational  official" shall mean (a) an employee or
  representative of a school district who  is  designated  by  the  school
  district  or  (b)  an  employee or representative of a charter school or
  private elementary or secondary school who is designated by such  school
  to  receive  records  pursuant  to  this  article  and to coordinate the
  student's participation in  programs  which  may  exist  in  the  school
  district   or  community,  including:  non-violent  conflict  resolution
  programs,  peer  mediation  programs  and  youth  courts,  extended  day
  programs  and other school violence prevention and intervention programs
  which may exist in the school district or community.  Such  notification
  shall  be kept separate and apart from such student's school records and
  shall be accessible only by the designated  educational  official.  Such
  notification shall not be part of such student's permanent school record
  and  shall not be appended to or included in any documentation regarding
  such student and shall be destroyed at such time as such student  is  no
  longer   enrolled  in  the  school  district.  At  no  time  shall  such
  notification be used for any purpose other than those specified in  this
  subdivision.

  S 301.3. Applicability  of  article to actions and matters occurring
  before and after effective date. 1. The provisions of this article apply
  exclusively to:
    (a) all juvenile delinquency actions and proceedings commenced upon or
  after the effective date thereof and all appeals and other post-judgment
  proceedings relating or attaching thereto; and
    (b) all matters of juvenile delinquency procedure prescribed  in  this
  article which do not constitute a part of any particular action or case,
  occurring upon or after such effective date.
    2. The provisions of this article apply to:
    (a)  all  juvenile delinquency actions and proceedings commenced prior
  to the effective date thereof but still pending on such date; and
    (b) all appeals and other post-judgment proceedings commenced upon  or
  after such effective date which relate or attach to juvenile delinquency
  actions  and  proceedings commenced or concluded prior to such effective
  date provided that, if application of such provisions in any  particular
  case  would  not  be feasible or would work injustice, the provisions of
  article seven pertaining to juvenile delinquency actions apply  thereto,
  as  such  article  seven read immediately prior to the effective date of
  this article.
    3. The provisions of this article do not impair or render  ineffectual
  any  proceedings  or  procedural  matters  which  occurred  prior to the
  effective date thereof.

  S 301.4. Separability  clause.  If  any clause, sentence, paragraph,
  section or part of this article  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,  section or part
  thereof directly involved in the  controversy  in  which  such  judgment
  shall have been rendered.

  S 302.1. Jurisdiction.  1.  The  family court has exclusive original
  jurisdiction over any proceeding to determine  whether  a  person  is  a
  juvenile delinquent.
    2. In determining the jurisdiction of the court the age of such person
  at the time the delinquent act allegedly was committed is controlling.

  S 302.1. Statute  of  limitations. A juvenile delinquency proceeding
  must be commenced within the period of limitation prescribed in  section
  30.10  of  the  criminal  procedure  law or, unless the alleged act is a
  designated felony as defined in  subdivision  eight  of  section  301.2,
  commenced  before the respondent's eighteenth birthday, whichever occurs
  earlier. When the alleged act constitutes a designated felony as defined
  in subdivision eight of section 301.2 such proceeding must be  commenced
  within  such  period  of limitation or before the respondent's twentieth
  birthday, whichever occurs earlier.

  S 302.3. Venue.  1.  Juvenile  delinquency  proceedings  shall  be
  originated in the county in which the act or acts  referred  to  in  the
  petition  allegedly occurred. For purposes of determining venue, article
  twenty of the criminal procedure law shall apply.
    2. Upon motion of the respondent or the appropriate presentment agency
  the family court in which  the  proceedings  have  been  originated  may
  order,  for  good  cause  shown,  that  the proceeding be transferred to
  another county. If the order is issued after motion by  the  presentment
  agency,  the  court may impose such conditions as it deems equitable and
  appropriate to ensure that the transfer does not subject the  respondent
  to an unreasonable burden in making his defense.
    3. Any motion made pursuant to subdivision two by the respondent shall
  be  made within the time prescribed by section 332.2. Any such motion by
  a presentment agency must  be  based  upon  papers  stating  the  ground
  therefor  and  must  be  made  within thirty days from the date that the
  action was originated unless such time is extended for good cause shown.
    4. Except for  designated  felony  act  petitions,  after  entering  a
  finding  pursuant  to subdivision one of section 345.1, and prior to the
  commencement  of  the  dispositional  hearing  the  court  may,  in  its
  discretion  and  for  good  cause  shown,  order  that the proceeding be
  transferred to the county in which the  respondent  resides.  The  court
  shall  not  order  such  a  transfer,  however,  unless  it  grants  the
  respondent and the presentment agency an opportunity  to  state  on  the
  record  whether  each approves or disapproves of such a transfer and the
  reasons therefor. The court shall take into consideration the provisions
  of subdivisions two and three  of  section  340.2  in  determining  such
  transfer.

  S 303.1. Criminal  procedure  law. 1. The provisions of the criminal
  procedure law shall not apply to proceedings under this  article  unless
  the applicability of such provisions are specifically prescribed by this
  act.
    2.   A  court  may,  however,  consider  judicial  interpretations  of
  appropriate provisions of the criminal procedure law to the extent  that
  such  interpretations  may  assist  the  court  in  interpreting similar
  provisions of this article.

  S 303.2. Double  jeopardy.  The  provisions  of article forty of the
  criminal  procedure  law  concerning  double  jeopardy  shall  apply  to
  juvenile delinquency proceedings.

  S 303.3. Defenses. The provisions of articles twenty-five, thirty-five
  and  forty  and  section  30.05  of the penal law shall be applicable to
  juvenile delinquency proceedings.

  S 304.1. Detention. 1. A facility certified by the state division for
  youth as a juvenile facility must be operated  in  conformity  with  the
  regulations  of the state division for youth and shall be subject to the
  visitation and inspection of the state board of social welfare.
    2. No child to whom the provisions of this article may apply shall  be
  detained  in  any  prison,  jail, lockup, or other place used for adults
  convicted of crime or under arrest and charged with  crime  without  the
  approval  of  the state division for youth in the case of each child and
  the statement of its reasons therefor.   The state  division  for  youth
  shall  promulgate  and  publish  the  rules  which  it  shall  apply  in
  determining  whether  approval  should  be  granted  pursuant  to   this
  subdivision.
    3.  The  detention  of  a  child  under  ten  years of age in a secure
  detention facility shall not be directed under any of the provisions  of
  this article.
    4.  A detention facility which receives a child under subdivision four
  of section 305.2 shall immediately notify the child's  parent  or  other
  person  legally responsible for his care or, if such legally responsible
  person is unavailable the person with whom the child  resides,  that  he
  has been placed in detention.

  S 304.2. Temporary  order of protection. (1) Upon application by the
  presentment agency, the court may issue a temporary order of  protection
  against  a  respondent for good cause shown, ex parte or upon notice, at
  any time after a juvenile is taken into  custody,  pursuant  to  section
  305.1  or 305.2 or upon the issuance of an appearance ticket pursuant to
  section 307.1 or upon the filing  of  a  petition  pursuant  to  section
  310.1.
    (2)  A temporary order of protection may contain any of the provisions
  authorized on the making of an order of protection under section 352.3.
    (3) A temporary order of protection is not a finding of wrongdoing.
    (4) A temporary order of protection may  remain  in  effect  until  an
  order of disposition is entered.

  S 305.1. Custody by a private person. 1. A private person may take a
  child under the age of sixteen into custody in cases  in  which  he  may
  arrest  an  adult  for  a  crime  under  section  140.30 of the criminal
  procedure law.
    2. Before taking such child under the age of sixteen into  custody,  a
  private  person  must  inform the child of the cause thereof and require
  him to  submit,  except  when  he  is  taken  into  custody  on  pursuit
  immediately after the commission of a crime.
    3.  After  taking  such child into custody, a private person must take
  the child, without unnecessary delay, to the child's home, to  a  family
  court, or to a police officer or peace officer.

  S 305.2. Custody  by  a  peace officer or a police officer without a
  warrant. 1. For purposes of this section, the  word  "officer"  means  a
  peace officer or a police officer.
    2.  An  officer may take a child under the age of sixteen into custody
  without a warrant in cases in which he may arrest a person for  a  crime
  under article one hundred forty of the criminal procedure law.
    3.  If  an  officer  takes  such  child  into custody or if a child is
  delivered to him under section 305.1, he shall  immediately  notify  the
  parent  or  other person legally responsible for the child's care, or if
  such legally responsible person is unavailable the person with whom  the
  child resides, that the child has been taken into custody.
    4.   After  making  every  reasonable  effort  to  give  notice  under
  subdivision three, the officer shall:
    (a) release the child to the custody of his parents  or  other  person
  legally  responsible  for  his care upon the issuance in accordance with
  section 307.1 of a family court appearance ticket to the child  and  the
  person to whose custody the child is released; or
    (b)  forthwith  and with all reasonable speed take the child directly,
  and without his first being taken to the police station  house,  to  the
  family  court  located  in  the  county in which the act occasioning the
  taking  into  custody  allegedly  was  committed,  unless  the   officer
  determines  that it is necessary to question the child, in which case he
  may take the child to a facility designated by the  chief  administrator
  of  the  courts  as a suitable place for the questioning of children or,
  upon the consent of a parent or other person legally responsible for the
  care of the child, to the child's residence and there question him for a
  reasonable period of time; or
    (c) take the child to a place certified by the office of children  and
  family  services  as  a juvenile detention facility for the reception of
  children; or
    (d) take the child who such officer has decided to take  into  custody
  in  accordance  with  this  section  or  section  305.1 of this part for
  violating the provisions of section 230.00  of  the  penal  law,  to  an
  available short-term safe house as defined in subdivision two of section
  four hundred forty-seven-a of the social services law; or
    (e)  take  the  child,  if  it  appears  that such child is a sexually
  exploited child as defined in paragraph (a), (c) or (d)  of  subdivision
  one of section four hundred forty-seven-a of the social services law, to
  an available short-term safe house, but only if the child consents to be
  taken.
    5.  If  such  child has allegedly committed a designated felony act as
  defined in subdivision eight of section 301.2, and the family  court  in
  the  county  is  in  session, the officer shall forthwith take the child
  directly to such family court, unless the officer takes the child  to  a
  facility for questioning in accordance with paragraph (b) of subdivision
  four.  If such child has not allegedly committed a designated felony act
  and such family court is in session, the officer shall either  forthwith
  take  the  child directly to such family court, unless the officer takes
  the child to a facility for questioning in accordance with paragraph (b)
  of subdivision four or release the child in  accordance  with  paragraph
  (a) of subdivision four.
    6.  In  all  other cases, and in the absence of special circumstances,
  the officer shall release the child in accordance with paragraph (a)  of
  subdivision four.
    7.  A child shall not be questioned pursuant to this section unless he
  and a person required to be notified pursuant to  subdivision  three  if
  present, have been advised:
    (a) of the child's right to remain silent;
    (b)  that  the  statements made by the child may be used in a court of
  law;
    (c)  of  the  child's  right  to  have  an  attorney  present  at such
  questioning; and
    (d) of the child's right to have an attorney provided for him  without
  charge if he is indigent.
    8.  In  determining the suitability of questioning and determining the
  reasonable period of time for questioning such a child, the child's age,
  the presence  or  absence  of  his  parents  or  other  persons  legally
  responsible  for his care and notification pursuant to subdivision three
  shall be included among relevant considerations.

  S 306.1. Fingerprinting  of certain alleged juvenile delinquents. 1.
  Following the arrest of a child alleged to be a juvenile delinquent,  or
  the  filing of a delinquency petition involving a child who has not been
  arrested, the arresting officer or other appropriate police  officer  or
  agency shall take or cause to be taken fingerprints of such child if:
    (a)  the  child is eleven years of age or older and the crime which is
  the  subject  of  the  arrest  or  which  is  charged  in  the  petition
  constitutes a class A or B felony; or
    (b) the child is thirteen years of age or older and the crime which is
  the  subject  of  the  arrest  or  which  is  charged  in  the  petition
  constitutes a class C, D or E felony.
    2.  Whenever  fingerprints  are  required  to  be  taken  pursuant  to
  subdivision one, the photograph and palmprints of the arrested child may
  also be taken.
    3.  The  taking  of fingerprints, palmprints, photographs, and related
  information concerning the child and the facts and circumstances of  the
  acts  charged  in  the  juvenile  delinquency  proceeding  shall  be  in
  accordance  with  standards  established  by  the  commissioner  of  the
  division  of  criminal  justice services and by applicable provisions of
  this article.
    4. Upon the taking of fingerprints pursuant  to  subdivision  one  the
  appropriate  officer or agency shall, without unnecessary delay, forward
  such fingerprints to the division of criminal justice services and shall
  not retain such fingerprints or any copy thereof. Copies of  photographs
  and palmprints taken pursuant to this section shall be kept confidential
  and  only  in  the  exclusive possession of such law enforcement agency,
  separate and apart from files of adults.

  S 306.2. Fingerprinting;  duties of the division of criminal justice
  services. 1. Upon receipt of  fingerprints  taken  pursuant  to  section
  306.1,  the  division  of  criminal  justice  services shall retain such
  fingerprints distinctly identifiable from adult criminal records  except
  as provided in section 354.1, and shall not release such fingerprints to
  a  federal depository or to any person except as authorized by this act.
  The division shall promulgate regulations to protect the confidentiality
  of such fingerprints and  related  information  and  to  prevent  access
  thereto,  by, and the distribution thereof to, persons not authorized by
  law.
    2. Upon receipt of such fingerprints, the division of criminal justice
  services shall classify them and  search  its  records  for  information
  concerning  an  adjudication  or  pending  matter  involving  the person
  arrested. The  division  shall  promptly  transmit  to  such  forwarding
  officer  or  agency  a  report  containing  any information on file with
  respect to such person's previous adjudications and pending matters or a
  report stating that the person arrested has no previous record according
  to its files.  Notwithstanding the foregoing, where the division has not
  received disposition information within two  years  of  an  arrest,  the
  division  shall, until such information or up-to-date status information
  is received, withhold the record of that arrest and any related activity
  in disseminating criminal history information.
    3. Upon receipt of a  report  of  the  division  of  criminal  justice
  services  pursuant  to this section, the recipient office or agency must
  promptly transmit two copies of such report to the family court in which
  the  proceeding  may  be  originated  and  two  copies  thereof  to  the
  presentment  agency  who shall furnish a copy thereof to counsel for the
  respondent.

  S 307.1. Family court appearance ticket. 1. A family court appearance
  ticket is a written notice issued and subscribed by a peace  officer  or
  police  officer,  a  probation  service  director or his designee or the
  administrator responsible for operating  a  detention  facility  or  his
  designee,  directing  a  child  and  his  parent or other person legally
  responsible for his care to appear, without security,  at  a  designated
  probation  service  on  a  specified  return date in connection with the
  child's alleged commission of the crime  or  crimes  specified  on  such
  appearance ticket. The form of a family court appearance ticket shall be
  prescribed by rules of the chief administrator of the courts.
    2.  If  the  crime  alleged  to  have been committed by the child is a
  designated felony as defined by subdivision eight of section 301.2,  the
  return   date  shall  be  no  later  than  seventy-two  hours  excluding
  Saturdays, Sundays and public holidays after  issuance  of  such  family
  court  appearance ticket. If the crime alleged to have been committed by
  such child is not a designated felony, the return date shall be no later
  than fourteen days after the issuance of such appearance ticket.
    3. A copy of the family court appearance ticket shall be forwarded  by
  the   issuing   person   or   agency  to  the  complainant,  respondent,
  respondent's  parent,   and   appropriate   probation   service   within
  twenty-four hours after its issuance.

  S 307.2. Appearance ticket procedures. 1. If a child fails to appear
  on the return date specified on a family court  appearance  ticket,  the
  probation  service  may  refer  the  matter forthwith to the appropriate
  presentment agency or may, in its  discretion,  attempt  to  secure  the
  attendance  of  the  child.  Upon  exercise of its discretion, probation
  services shall take appropriate action  under  law  including,  but  not
  limited to, written notification to the child and parent or other person
  legally  responsible  for  his care or telephone communications with the
  child and parent or other  person  legally  responsible  for  his  care.
  Efforts  to  secure  the attendance of the child shall not extend beyond
  seven days subsequent to such return date and the probation service must
  refer the matter to  the  appropriate  presentment  agency  within  such
  period.  Upon  referral, the presentment agency may take whatever action
  it deems appropriate, including the filing of  a  petition  pursuant  to
  section 311.1.
    2.  If the complainant fails to appear on the return date specified on
  such appearance ticket, the probation service may,  in  its  discretion,
  attempt  to  secure  his  voluntary  attendance.  Upon  exercise  of its
  discretion, probation services may take  appropriate  action  under  law
  including,  but  not limited to, written notification to the complainant
  or telephone communications with the complainant. Efforts to secure  the
  voluntary  attendance  of such person shall not extend beyond seven days
  subsequent to such return date and the probation service shall refer the
  matter to the appropriate presentment agency within  such  period.  Upon
  referral,  the  presentment  agency  may  take  whatever action it deems
  appropriate, including the issuance of a subpoena or  the  filing  of  a
  petition pursuant to section 311.1.
    3.  If a petition is filed subsequent to the issuance of an appearance
  ticket the appearance ticket shall be made part of the probation service
  file.

  S 307.3. Rules of court authorizing release before filing of petition.
  1.    The agency responsible for operating a detention facility pursuant
  to section two hundred eighteen-a of the county law, five hundred  ten-a
  of  the  executive  law  or  other  applicable  provisions of law, shall
  release a child in custody before  the  filing  of  a  petition  to  the
  custody of his parents or other person legally responsible for his care,
  or  if  such legally responsible person is unavailable, to a person with
  whom he resides, when the events occasioning the taking into custody  do
  not  appear to involve allegations that the child committed a delinquent
  act.
    2.  When practicable such agency may release a child before the filing
  of a petition to the custody of his  parents  or  other  person  legally
  responsible  for  his  care,  or  if  such legally responsible person is
  unavailable,  to  a  person  with  whom  he  resides,  when  the  events
  occasioning  the  taking into custody appear to involve allegations that
  the child committed a delinquent act.
    3. If a child is released under this section, the child and the person
  legally responsible  for  his  care  shall  be  issued  a  family  court
  appearance ticket in accordance with section 307.1.
    4.  If  the  agency for any reason does not release a child under this
  section, such child shall be brought    before  the  appropriate  family
  court  within seventy-two hours or the next day the court is in session,
  whichever is sooner. Such agency shall thereupon file an application for
  an order pursuant to section 307.4 and shall forthwith serve a  copy  of
  the application upon the appropriate presentment agency. Nothing in this
  subdivision  shall preclude the adjustment of suitable cases pursuant to
  section 308.1.

  S 307.4. Hearing  following  detention. 1. If a child in custody is
  brought before a judge of the family court before a  petition  is  filed
  upon  a  written  application  pursuant  to  subdivision four of section
  307.3, the judge shall hold a  hearing  for  the  purpose  of  making  a
  preliminary   determination   of  whether  the  court  appears  to  have
  jurisdiction over the child.
    2. At such hearing the court must appoint an attorney to represent the
  child pursuant to the provisions of section two  hundred  forty-nine  if
  independent legal representation is not available to such child.
    3.  The  provisions  of  sections  320.3 and 341.2 shall apply at such
  hearing.
    4. After such hearing, the judge shall order the release of the  child
  to the custody of his parent or other person legally responsible for his
  care if:
    (a) the court does not appear to have jurisdiction, or
    (b)  the  events  occasioning the taking into custody do not appear to
  involve allegations that the child committed a delinquent act, or
    (c) the events occasioning the taking into custody appear  to  involve
  acts  which  constitute juvenile delinquency, unless the court finds and
  states facts and reasons which would support a detention order  pursuant
  to section 320.5.
    5.  Such  hearing  shall  be held within seventy-two hours of the time
  detention commenced or the next day the court is in  session,  whichever
  is sooner.
    6. The appropriate presentment agency shall present the application at
  a hearing pursuant to this section.
    7.  A  petition shall be filed and a probable-cause hearing held under
  section 325.1 within four days of the conclusion of a hearing under this
  section. If a petition is not filed within four days the child shall  be
  released.
    8. Upon a finding of facts and reasons which support a detention order
  pursuant  to  section  320.5  of  this  chapter,  the  court  shall also
  determine and state in any order directing detention:
    (a) whether the continuation of the child in the child's home would be
  contrary to the best interests of the child based upon, and limited  to,
  the  facts  and  circumstances available to the court at the time of the
  hearing held in accordance with this section; and
    (b) where appropriate and consistent with the need for  protection  of
  the community, whether reasonable efforts were made prior to the date of
  the  court  hearing  that  resulted  in  the  detention  order issued in
  accordance with this section  to  prevent  or  eliminate  the  need  for
  removal  of  the  child  from  his or her home or, if the child had been
  removed from his or her home prior  to  the  initial  appearance,  where
  appropriate   and  consistent  with  the  need  for  protection  of  the
  community, whether reasonable efforts were made to make it possible  for
  the child to safely return home.

  S 308.1. Rules of court for preliminary procedure. 1. Rules of court
  shall  authorize  and  determine  the  circumstances  under  which   the
  probation  service may confer with any person seeking to have a juvenile
  delinquency  petition  filed,  the  potential   respondent   and   other
  interested  persons  concerning  the  advisability  of requesting that a
  petition be filed.
    2. Except as provided in subdivisions three and four of this  section,
  the  probation  service  may,  in accordance with rules of court, adjust
  suitable cases  before  a  petition  is  filed.  The  inability  of  the
  respondent  or  his  or  her  family  to make restitution shall not be a
  factor in a decision to adjust a case or  in  a  recommendation  to  the
  presentment  agency pursuant to subdivision six of this section. Nothing
  in this section shall prohibit the probation service or the  court  from
  directing a respondent to obtain employment and to make restitution from
  the  earnings  from  such  employment.  Nothing  in  this  section shall
  prohibit the probation service or the court from directing  an  eligible
  person  to  complete  an  education  reform  program  in accordance with
  section four hundred fifty-eight-l of the social services law.
    3. The probation service shall not adjust a case in  which  the  child
  has  allegedly  committed a designated felony act unless it has received
  the written approval of the court.
    4. The probation service shall not adjust a case in  which  the  child
  has  allegedly committed a delinquent act which would be a crime defined
  in  section  120.25,  (reckless  endangerment  in  the  first   degree),
  subdivision  one of section 125.15, (manslaughter in the second degree),
  subdivision  one  of  section  130.25,  (rape  in  the  third   degree),
  subdivision  one  of  section  130.40, (criminal sexual act in the third
  degree), subdivision one or two of section 130.65, (sexual abuse in  the
  first  degree),  section 135.65, (coercion in the first degree), section
  140.20, (burglary in the third degree), section 150.10,  (arson  in  the
  third   degree),   section   160.05,  (robbery  in  the  third  degree),
  subdivision two, three or four of section 265.02,  (criminal  possession
  of  a  weapon in the third degree), section 265.03, (criminal possession
  of a  weapon  in  the  second  degree),  or  section  265.04,  (criminal
  possession  of  a dangerous weapon in the first degree) of the penal law
  where the child has previously had one or more adjustments of a case  in
  which  such  child  allegedly  committed  an  act which would be a crime
  specified in this subdivision unless it has  received  written  approval
  from the court and the appropriate presentment agency.
    5. The fact that a child is detained prior to the filing of a petition
  shall  not  preclude  the  probation service from adjusting a case; upon
  adjusting such a case the probation service shall notify  the  detention
  facility to release the child.
    6.  The  probation service shall not transmit or otherwise communicate
  to the presentment agency any statement made by the child to a probation
  officer. However,  the  probation  service  may  make  a  recommendation
  regarding  adjustment  of the case to the presentment agency and provide
  such information, including any report made by the arresting officer and
  record of previous adjustments and arrests, as it shall deem relevant.
    7. No statement made to the probation service prior to the filing of a
  petition may be admitted into evidence at a fact-finding hearing or,  if
  the  proceeding is transferred to a criminal court, at any time prior to
  a conviction.
    8. The probation service may not prevent  any  person  who  wishes  to
  request  that  a petition be filed from having access to the appropriate
  presentment agency for that purpose.
    9. Efforts at adjustment pursuant to rules of court under this section
  may not extend for a period of more than two months without leave of the
  court, which may extend the period for an additional two months.
    10.  If  a case is not adjusted by the probation service, such service
  shall notify the appropriate presentment  agency  of  that  fact  within
  forty-eight hours or the next court day, whichever occurs later.
    11.  The probation service may not be authorized under this section to
  compel any person to appear at any conference, produce  any  papers,  or
  visit any place.
    12.  The  probation  service shall certify to the division of criminal
  justice services  and  to  the  appropriate  police  department  or  law
  enforcement  agency  whenever  it  adjusts a case in which the potential
  respondent's fingerprints were taken pursuant to section  306.1  in  any
  manner  other than the filing of a petition for juvenile delinquency for
  an act which, if committed by  an  adult,  would  constitute  a  felony,
  provided, however, in the case of a child eleven or twelve years of age,
  such  certification  shall  be  made  only if the act would constitute a
  class A or B felony.
    13. The provisions of this section shall not apply where the  petition
  is  an  order  of  removal to the family court pursuant to article seven
  hundred twenty-five of the criminal procedure law.

  S 310.1. Originating  a  juvenile  delinquency  proceeding.  1.  A
  proceeding to adjudicate a person a juvenile delinquent is originated by
  the filing of a petition.
    2. Only a presentment agency  may  originate  a  juvenile  delinquency
  proceeding.
    3.  If  the  appropriate agency does not originate a proceeding within
  thirty days of receipt of notice from the probation service pursuant  to
  subdivision  ten  of  section  308.1,  it  shall  notify  in writing the
  complainant of that fact.

  S 310.2. Speedy  trial. After a petition has been filed, or upon the
  signing of an order  of  removal  pursuant  to  section  725.05  of  the
  criminal   procedure  law,  the  respondent  is  entitled  to  a  speedy
  fact-finding hearing.

  S 311.1. The  petition;  definition  and  contents.  1.  A  petition
  originating a juvenile delinquency proceeding is a written accusation by
  an authorized presentment agency.
    2. A petition shall charge at least one crime and  may,  in  addition,
  charge  in  separate  counts one or more other crimes, provided that all
  such crimes are joinable in accord with section 311.6.
    3. A petition must contain:
    (a) the name of the family court in which it is filed;
    (b) the title of the action;
    (c) the fact that the respondent is a person under  sixteen  years  of
  age at the time of the alleged act or acts;
    (d) a separate accusation or count addressed to each crime charged, if
  there be more than one;
    (e) the precise crime or crimes charged;
    (f)  a statement in each count that the crime charged was committed in
  a designated county;
    (g) a statement in each count  that  the  crime  charged  therein  was
  committed  on, or on or about, a designated date, or during a designated
  period of time;
    (h) a plain and concise factual statement in each count which, without
  allegations of an evidentiary nature,  asserts  facts  supporting  every
  element  of  the  crime  charged and the respondent's commission thereof
  with sufficient precision to  clearly  apprise  the  respondent  of  the
  conduct which is the subject of the accusation;
    (i)  the  name or names, if known, of other persons who are charged as
  co-respondents in the family court or as  adults  in  a  criminal  court
  proceeding in the commission of the crime or crimes charged;
    (j) a statement that the respondent requires supervision, treatment or
  confinement; and
    (k) the signature of the appropriate presentment attorney.
    4.  A petition shall be verified in accordance with the civil practice
  law and rules and shall conform to the provisions of section 311.2.
    5. If the petition alleges that the respondent committed a  designated
  felony  act,  it  shall  so  state,  and the term "designated felony act
  petition" shall be prominently marked thereon. Certified copies of prior
  delinquency findings shall constitute sufficient proof of such  findings
  for  the  purpose  of  filing  a  designated felony petition. If all the
  allegations of a designated felony act are dismissed or withdrawn or the
  respondent is found to have committed crimes which  are  not  designated
  felony acts, the term "designated felony act petition" shall be stricken
  from the petition.
    6. The form of petition shall be prescribed by the chief administrator
  of the courts. A petition shall be entitled "In the Matter of", followed
  by the name of the respondent.
    7.  When  an  order  of  removal  pursuant  to  article  seven hundred
  twenty-five of the criminal procedure law is filed with the clerk of the
  court, such order and those pleadings and proceedings,  other  than  the
  minutes  of  any  hearing inquiry or trial, grand jury proceeding, or of
  any plea accepted or entered, held in this action that has not yet  been
  transcribed  shall  be  transferred  with it and shall be deemed to be a
  petition filed pursuant to subdivision one of section  310.1  containing
  all  of  the  allegations  required by this section notwithstanding that
  such allegations may not be set forth in the manner therein  prescribed.
  Where the order or the grand jury request annexed to the order specifies
  an  act  that  is  a designated felony act, the clerk shall annex to the
  order a sufficient statement and marking to make it a designated  felony
  act  petition.  The date such order is filed with the clerk of the court
  shall be deemed the date a petition was filed under  this  article.  For
  purposes  of  service  in  accord  with section 312.1, however, only the
  order of removal shall be  deemed  the  petition.  All  minutes  of  any
  hearing  inquiry  or trial held in this action, the minutes of any grand
  jury  proceeding  and the minutes of any plea accepted and entered shall
  be transferred to the family court within thirty days.

  S 311.2. Sufficiency of petition. A petition, or a count thereof, is
  sufficient on its face when:
    1. it substantially conforms to the requirements prescribed in section
  311.1; and
    2. the allegations of the factual part of the petition, together  with
  those  of  any  supporting  depositions  which may accompany it, provide
  reasonable cause to believe that the respondent committed the  crime  or
  crimes charged; and
    3.  non-hearsay  allegations of the factual part of the petition or of
  any supporting depositions establish, if true,  every  element  of  each
  crime charged and the respondent's commission thereof.

  S 311.3. Petition;  fact-finding  hearings.  1.  When  two  or  more
  respondents are charged in separate petitions with  the  same  crime  or
  crimes  the  court  shall  conduct a single or consolidated fact-finding
  hearing. The  court,  however,  upon  motion  of  a  respondent  or  the
  presentment  agency,  may,  in  its discretion and for good cause shown,
  order that any respondent be granted  a  fact-finding  hearing  separate
  from  the  other respondents. Such motion must be made within the period
  prescribed in section 332.2.
    2. If such petitions, in addition to charging the same crime or crimes
  against the different respondents, charge other  crimes  not  common  to
  all,  the  court  may nevertheless conduct a single fact-finding hearing
  for the crime or crimes common to all.

  S 311.4. Substitution  of petition or finding. 1. At any time in the
  proceedings the court, upon motion of a respondent or  its  own  motion,
  may,  with the consent of the presentment agency and with the consent of
  the respondent, substitute a petition alleging that the respondent is in
  need of supervision for a petition alleging that  the  respondent  is  a
  juvenile delinquent.
    2.  At  the  conclusion  of  the dispositional hearing the court, upon
  motion of the respondent or its own motion, may in  its  discretion  and
  with  the  consent  of  the  respondent,  substitute  a finding that the
  respondent is a person in need of supervision for  a  finding  that  the
  respondent is a juvenile delinquent.
    3.  In  any  proceeding under this article based upon an arrest for an
  act of prostitution, there is a presumption that  the  respondent  meets
  the  criteria  as a victim of a severe form of trafficking as defined in
  section 7105 of title 22 of the United States Code (Trafficking  Victims
  Protection  Act of 2000). Upon the motion of the respondent, without the
  consent  of  the  presentment  agency,  a  petition  alleging  that  the
  respondent  is  in  need  of  supervision  shall  be substituted for the
  delinquency petition. If, however, the respondent  has  been  previously
  adjudicated as a juvenile delinquent under this article for an act which
  would  be  a  crime  pursuant to article two hundred thirty of the penal
  law,  if  the  respondent  was  an  adult,  or   expresses   a   current
  unwillingness  to  cooperate  with  specialized  services  for  sexually
  exploited youth, continuing with the  delinquency  proceeding  shall  be
  within the court's discretion. The necessary findings of fact to support
  the  continuation  of  the  delinquency  proceeding  shall be reduced to
  writing and made part of the court record. If, subsequent to issuance of
  a substitution order under this subdivision and prior to the  conclusion
  of the fact finding hearing on the petition alleging that the respondent
  is a person in need of supervision, the respondent is not in substantial
  compliance  with  a  lawful  order  of  the court, the court may, in its
  discretion,  substitute  the  original  petition   alleging   that   the
  respondent  is  a juvenile delinquent for the petition alleging that the
  respondent is in need of supervision.

  S 311.5. Amendment  of the petition. 1. At any time before or during
  the fact-finding  hearing,  the  court  may,  upon  application  of  the
  presentment  agency and with notice to the respondent and an opportunity
  to be heard, order the amendment of a petition with respect to  defects,
  errors  or  variances  from the proof relating to matters of form, time,
  place, names of persons and the like, when such amendment does not  tend
  to  prejudice  the  respondent  on  the  merits. Upon permitting such an
  amendment, the court must, upon application of the respondent, order any
  adjournment which may be necessary to accord the respondent an  adequate
  opportunity to prepare his defense.
    2. A petition may not be amended for the purpose of curing:
    (a) a failure to charge or state a crime; or
    (b) legal insufficiency of the factual allegations; or
    (c) a misjoinder of crimes.

  S 311.6. Joinder,  severance  and  consolidation.  1. Two crimes are
  joinable and may be included as separate counts  in  the  same  petition
  when:
    (a)  they  are  based  upon  the  same  act  or upon the same criminal
  transaction, as that term is defined in subdivision two; or
    (b) even though  based  upon  different  criminal  transactions,  such
  crimes, or the criminal transactions underlying them, are of such nature
  that either proof of the first crime would be material and admissible as
  evidence in chief upon a fact-finding hearing of the second, or proof of
  the  second would be material and admissible as evidence in chief upon a
  fact-finding hearing of the first; or
    (c) even though based upon different criminal transactions,  and  even
  though  not  joinable pursuant to paragraph (b), such crimes are defined
  by the same or similar statutory provisions  and  consequently  are  the
  same or similar in law.
    2. "Criminal transaction" means conduct which establishes at least one
  crime, and which is comprised of two or more or a group of acts either:
    (a) so closely related and connected in point of time and circumstance
  of commission as to constitute a single criminal incident; or
    (b)  so  closely  related  in  criminal  purpose  or  objective  as to
  constitute elements or integral parts of a single criminal venture.
    3. In any case where two or more crimes or groups of crimes charged in
  a petition are based upon different  criminal  transactions,  and  where
  their joinability rests solely upon the fact that such crimes, or as the
  case  may be at least one offense of each group, are the same or similar
  in law, as prescribed in paragraph (c) of subdivision one, the court, in
  the interest of justice and for good cause shown, may  upon  application
  of either the respondent or the presentment agency order that any one of
  such  crimes  or  groups of crimes be tried separately from the other or
  others, or that two or more thereof be  tried  together  but  separately
  from  two  or  more others thereof. Such application must be made within
  the period prescribed in section 332.2.
    4. When two or more  petitions  against  the  same  respondent  charge
  different  crimes  of  a  kind  that  are  joinable in a single petition
  pursuant to subdivision one, the court may, upon application  of  either
  the  presentment  agency  or  respondent  order  that  such petitions be
  consolidated and treated as a single petition for trial  purposes.  Such
  application  must be made within the period prescribed in section 332.2.
  If the respondent requests consolidation with respect  to  crimes  which
  are,  pursuant  to  paragraph (a) of subdivision one, of a kind that are
  joinable in a single petition by reason of being based upon the same act
  or criminal transaction, the court must order such consolidation  unless
  good cause to the contrary be shown.

  S 312.1. Issuance and service of summons. 1. After a petition has been
  filed,  the  court  may cause a copy thereof and a summons to be issued,
  requiring the respondent personally  and  his  parent  or  other  person
  legally responsible for his care, or, if such legally responsible person
  is  not  available,  a  person  with  whom he resides, to appear for the
  initial appearance as defined by section  320.1  at  a  time  and  place
  named.  The  summons  shall  be signed by a judge or by the clerk of the
  court.
    2. Service of a summons and petition shall be made by  delivery  of  a
  true  copy  thereof  to  the  person summoned at least twenty-four hours
  before the time stated therein for appearance.
    3. If  after  reasonable  effort,  personal  service  as  provided  in
  subdivision  two  is  not  made,  the  court  may  at  any  stage in the
  proceedings make an order providing for service in any manner the  court
  directs.

  S 312.2. Issuance  of a warrant. 1.   The court may issue a warrant,
  directing  that  the  respondent  personally  or  other  person  legally
  responsible  for  his or her care or, if such legally responsible person
  is not available, a person with whom  he  or  she  resides,  be  brought
  before the court, when a petition has been filed and it appears that:
    (a) a summons cannot be served; or
    (b)  such  person  has  refused  to  obey  a  summons  or family court
  appearance ticket; or
    (c)  the  respondent  or  other  person  is  likely   to   leave   the
  jurisdiction; or
    (d) a summons, in the court's opinion, would be ineffectual; or
    (e) a respondent has failed to appear.
    2.  Upon  issuance  of  a  warrant  due to the respondent's failure to
  appear for a scheduled court date, the court shall adjourn the matter to
  a date certain within thirty days for a report on the  efforts  made  to
  secure  the  respondent's  appearance in court. The court may order that
  the person legally responsible for the respondent's  care  or,  if  such
  legally  responsible  person  is  not  available, a person with whom the
  respondent resides, appear on the adjourned  date.  Upon  receiving  the
  report,  for  good  cause,  the  court may order further reports and may
  require further appearances of the person legally  responsible  for  the
  respondent's  care  or,  if  such  person  legally  responsible  is  not
  available, a person with whom the respondent resides. Upon receiving the
  initial or any subsequent report, the court shall set forth  in  writing
  its  findings of fact as to the efforts, if any, made up to that date to
  secure the respondent's appearance in court.

   S 315.1. Motion  to  dismiss; defective petition. 1. A petition or a
  count thereof is defective when:
    (a) it does not substantially conform to the  requirements  stated  in
  sections  311.1 and 311.2; provided that a petition may not be dismissed
  as  defective,  but  must  instead  be  amended  when  the   defect   or
  irregularity  is  of  a  kind that may be cured by amendment pursuant to
  section 311.5, and where the presentment agency moves to so amend; or
    (b)  the  allegations  demonstrate  that  the  court  does  not   have
  jurisdiction of the crime charged; or
    (c)  the  statute  defining  the  crime charged is unconstitutional or
  otherwise invalid.
    2. An order dismissing a petition as  defective  may  be  issued  upon
  motion of the respondent or of the court itself.
    3. A motion to dismiss under this section must be made within the time
  provided for in section 332.2.

  S 315.2. Motion to dismiss in furtherance of justice. 1. A petition or
  any part or count thereof may at any time be dismissed in furtherance of
  justice  when,  even  though  there  may  be no basis for dismissal as a
  matter of law, such dismissal  is  required  as  a  matter  of  judicial
  discretion  by the existence of some compelling further consideration or
  circumstances clearly demonstrating that a  finding  of  delinquency  or
  continued  proceedings  would  constitute  or  result  in  injustice. In
  determining   whether   such   compelling   further   consideration   or
  circumstances  exist, the court shall, to the extent applicable, examine
  and consider, individually and collectively, the following:
    (a) the seriousness and circumstances of the crime;
    (b) the extent of harm caused by the crime;
    (c) any exceptionally serious misconduct of law enforcement  personnel
  in  the investigation and arrest of the respondent or in the presentment
  of the petition;
    (d) the history, character and condition of the respondent;
    (e) the needs and best interest of the respondent;
    (f) the need for protection of the community; and
    (g) any other relevant fact indicating that a finding would  serve  no
  useful purpose.
    2.  An  order  dismissing a petition in the interest of justice may be
  issued upon motion of the presentment agency, the court itself or of the
  respondent. Upon issuing such an order, the court  must  set  forth  its
  reasons therefor upon the record.
    3.  Such  a motion brought by the presentment agency or the respondent
  must be in writing and may be filed at any time subsequent to the filing
  of the petition. Notice of the motion shall be served upon the  opposing
  party  not  less than eight days prior to the return date of the motion.
  Answering affidavits shall be served at least  two  days  prior  to  the
  return date of such motion.

  S 315.3. Adjournment  in contemplation of dismissal. 1. Except where
  the petition alleges that the  respondent  has  committed  a  designated
  felony act, the court may at any time prior to the entering of a finding
  under  section  352.1  and with the consent of the respondent order that
  the  proceeding  be  "adjourned  in  contemplation  of  dismissal".   An
  adjournment  in  contemplation  of  dismissal  is  an adjournment of the
  proceeding, for a period not to  exceed  six  months,  with  a  view  to
  ultimate  dismissal  of  the  petition  in  furtherance of justice. Upon
  issuing such an order, providing such terms and conditions as the  court
  deems appropriate, the court must release the respondent. The court may,
  as a condition of an adjournment in contemplation of dismissal order, in
  cases  where  the  record  indicates that the consumption of alcohol may
  have been a contributing factor, require the respondent  to  attend  and
  complete  an  alcohol  awareness  program  established  pursuant  to  of
  subdivision (a) of section 19.07 of the mental hygiene  law.  The  court
  may,  as  a  condition  of  an adjournment in contemplation of dismissal
  order, in cases where the record indicates that  the  respondent  is  an
  eligible  person as defined in section four hundred fifty-eight-l of the
  social services law and has allegedly committed an eligible  offense  as
  defined in such section, direct the respondent to attend and complete an
  education  reform  program  established pursuant to section four hundred
  fifty-eight-l of the social services law. Upon ex parte  motion  by  the
  presentment agency, or upon the court's own motion, made at the time the
  order  is  issued  or  at  any  time  during its duration, the court may
  restore the matter to the calendar. If the proceeding is  not  restored,
  the  petition  is,  at  the expiration of the order, deemed to have been
  dismissed by the court in furtherance of justice.
    2. Rules of court shall define the permissible  terms  and  conditions
  which  may  be  included in an order that the proceeding be adjourned in
  contemplation of dismissal; such permissible terms  and  conditions  may
  include  supervision  by  the  probation service, a requirement that the
  respondent cooperate with a mental  health,  social  services  or  other
  appropriate  community facility or agency to which the respondent may be
  referred and a requirement that the respondent comply  with  such  other
  reasonable  conditions  as  the court shall determine to be necessary or
  appropriate to ameliorate the conduct which gave rise to the  filing  of
  the  petition  or  to  prevent placement with the commissioner of social
  services or the division for youth.
    3. An order adjourning a petition in contemplation of dismissal may be
  issued upon motion of the presentment agency, the court itself,  or  the
  respondent.  Upon  issuing  such  an order, the court must set forth its
  reasons therefor upon the record.

 Top of Page