New York State Consolidated Laws
Family Court Act
Part 1 - Article 3 - Family Court
JURISDICTION AND PRELIMINARY PROCEDURES
Section |
Description |
301.1 |
Purpose. |
301.2 |
Definitions. |
301.3 |
Applicability of article to actions and matters occurring before and after effective date. |
301.4 |
Separability clause. |
302.1 |
Jurisdiction. |
302.2 |
Statute of limitations. |
302.3 |
Venue. |
303.1 |
Criminal procedure law. |
303.2 |
Double jeopardy. |
303.3 |
Defenses. |
304.1 |
Detention. |
304.2 |
Temporary order of protection. |
305.1 |
Custody by a private person. |
305.2 |
Custody by a peace officer or a police officer without a warrant. |
306.1 |
Fingerprinting of certain alleged juvenile delinquents. |
306.2 |
Fingerprinting; duties of the division of criminal justice services. |
307.1 |
Family court appearance ticket. |
307.2 |
Appearance ticket procedures. |
307.3 |
Rules of court authorizing release before filing of petition. |
307.4 |
Hearing following detention. |
308.1 |
Rules of court for preliminary procedure. |
310.1 |
Originating a juvenile delinquency proceeding. |
310.2 |
Speedy trial |
311.1 |
The petition; definition and contents. |
311.2 |
Sufficiency of petition. |
311.3 |
Petition; fact-finding hearings. |
311.4 |
Substitution of petition or finding. |
311.5 |
Amendment of the petition. |
311.6 |
Joinder, severance and consolidation. |
312.1 |
Issuance and service of summons. |
312.2 |
Issuance of a warrant. |
315.1 |
Motion to dismiss; defective petition. |
315.2 |
Motion to dismiss in furtherance of justice. |
315.2 |
Adjournment in contemplation of dismissal. |
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.
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