NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5897
SPONSOR: Paulin (MS) TITLE OF BILL:
An act to amend the family court act, in relation to adjudication and
violation procedures in juvenile delinquency and persons in need of
supervision cases
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.
Significant gaps exist in the procedural framework governing juvenile
delinquency (JD) and persons in need of supervision (PINS) cases, each
in the area of violations of court orders. Further, a procedural gap is
evident in the PINS statutory framework for the fact-finding stage of
the proceeding, as has repeatedly been identified by appellate courts.
This measure would eliminate these gaps by clarifying applicable proce-
dures in cases of alleged violations of orders of probation and orders
of conditional discharge in JD proceedings and with respect to allocu-
tions for admissions and violations of suspended judgments and orders of
probation in PINS cases.
With respect to violations of orders of probation and conditional
discharge, the measure effectuates the apparent legislative intention to
provide identical provisions to toll such dispositional orders while
violation proceedings are pending. While sections 360.2 and 360.3 of the
Family Court Act articulate a procedure governing violations of
probation and of conditional discharge, references to conditional
discharge appear inadvertently to have been omitted from two subdivi-
sions of those sections. In Matter of Donald MM, 231 A.D.2d 810 (3rd
Dept., 1996), lye. app. denied, 89 N.Y.2d 804 (1996), the Appellate
Division, Third Department, read into section 360.2(4) a requirement
that the period of a conditional discharge be tolled during pendency of
a violation petition, as in probation violation cases. The Court held
that omission of the requirement was unintentional, as "it is apparent
from a reading of all provisions of this statute that the Legislature
did not intend for probationary periods and conditional discharges to be
treated differently." This measure incorporates this tolling requirement
into section 360.2(4) of the Family Court Act. Using the same rationale,
it remedies a similar gap in subdivision five of the same section, which
requires credit for the period of pendency of a violation petition to be
given in cases in which the violation has not been sustained.
With respect to PINS proceedings, the measure adds a new section 743 to
the Family Court Act, establishing a judicial allocution procedure for
accepting admissions in PINS cases analogous to the allocution required
in JD cases (Family Court Act § 321.3). The measure would require Family
Court, before accepting an admission in a PINS case, to ascertain that
the juvenile respondent committed the act or acts as to which an admis-
sion is being entered, is voluntarily waiving his or her right to a
hearing and is aware of the dispositional alternatives that may be
ordered as a result of the adjudication that is the likely consequence
of the admission. Additionally, the measure corrects an apparently inad-
vertent omission of a phrase in subdivision (h) of section 735 of the
Family Court Act. The absence of an explicit allocution procedure in
the PINS statute has generated extensive appellate litigation. In Matter
of Tabitha L.L., 87 N.Y.2d 1009 (1996), the Court of Appeals held that
it would be inappropriate to incorporate section 321.3 of the Family
Court Act into Article 7 in the absence of specific legislative authori-
zation. It did not determine whether an allocution procedure is consti-
tutionally required, since that issue was not preserved for appellate
review. In a subsequent case, Matter of Tabitha E., 271 A.D.2d 719, 720
(3rd Dept., 2000), however, the Appellate Division, Third Department,
held it to be reversible error for Family Court to accept an admission
in a PINS proceeding without first advising respondent of her right to
remain silent. Accord, Matter of Ashley R., 42 A.D.3d 689 (3d Dept.,
2007); Matter of Marquis S., 26 A.D.3d 757 (4th Dept., 2006); Matter of
Steven Z, 19 A.D.3d 783 (3d Dept., 2005); Matter of Matthew RR., 9
A.D.3d 514 (3d Dept., 2004); Matter of Nichole A., 300 A.D.2d 947 (3'
Dept., 2002); Matter of Jodi VV, 295 A.D.2d 659 (3rd Dept., 2002);
Matter of Shaun U., 288 A.D.2d 708 (3rd Dept., 2001). We believe that
considerations of due process -- as compelling in PINS as in JD cases --
militate in favor of equivalent protections and, therefore, urge the
Legislature to enact a provision for PINS cases comparable to the allo-
cution requirement applicable to ID proceedings.
The final two amendments to the PINS statutes would delineate procedures
for violations of orders of suspended judgment and violations of
probation, drawing upon existing JD procedures. See Family Court Act §§
360.2, 360.3. Violations of both orders of probation and suspended judg-
ment would require the filing of a verified petition, a hearing at which
the juvenile is represented by counsel and a determination by competent
proof that the juvenile committed the violation charged without just
cause. Periods of dispositions of suspended judgment and probation would
be tolled during the pendency of the violation petition. The juvenile
must be advised of his or her rights. See, e.g., Matter of Jessica GG.,
19 A.D.3d 765 (3d Dept., 2005); Matter of Ashley A., 296 A.D.2d 627 (3'
Dept., 2002).
Upon finding a violation, the Family Court would be authorized to
adjourn the matter for a new dispositional hearing in accordance with
subdivision (b) or (c) of section 749 of the Family Court Act or, at
minimum, provide the juvenile with an opportunity to present evidence.
See Matter of Casey W, 3 A.D.3d 785 (3d Dept., 2004); Matter of Josiah
RR., 277 A.D.2d 654 (3rd Dept., 2000). The court would be permitted to
revoke, continue or modify the order of probation or suspended judgment.
If the order is revoked, the court must order a different dispositional
alternative enumerated in section 754(a), state the reasons for its
determination and make the findings required by section 754(b) of the
Family Court Act. See Matter of Nathaniel J1, 265 A.D.2d 660 (3rd Dept.,
1999), after remittitur, 270 A.D.2d 783 3rd Dept., 2000) (PINS probation
violation matter remanded twice for specific findings, first with
respect to the reasons for the disposition and second as to the 16-year
old respondent's needs, if any, for independent living services).* In
matters, such as Nathaniel JJ, in which the juvenile was placed pursuant
to Family Court Act § 756, these findings are mandated as well by the
Federal and State Adoption and Safe Families Acts (Public Law 105-89; L.
1999, c.7; L. 2000, c. 145).
This measure, which would have no fiscal impact upon the State, would
take effect 90 days after becoming a law.
2013-14 LEGISLATIVE HISTORY:
Senate 3831-A (Sen. Gallivan) (Rules)
Assembly 2602-B (M. of A. Paulin) (Passed)
2012 LEGISLATIVE HISTORY:
Senate 7581 (Sen. Gallivan) (Rules)
Assembly 10520 (Committee on Rules, at request of M. of A. Paulin, et
al) (Codes)
* The final appeal in Matter of Nathaniel 11, 274 A.D.2d 611 (3rd Dept.,
2000) was dismissed as moot since the appellant had been released from
placement.
STATE OF NEW YORK
________________________________________________________________________
5897
2015-2016 Regular Sessions
IN ASSEMBLY
March 6, 2015
___________
Introduced by M. of A. PAULIN, LUPARDO, CRESPO, JAFFEE, GALEF, MAGEE,
MOYA, RIVERA, TITONE, WEPRIN -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Children
and Families
AN ACT to amend the family court act, in relation to adjudication and
violation procedures in juvenile delinquency and persons in need of
supervision cases
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivisions 4 and 5 of section 360.2 of the family court
2 act, as added by chapter 920 of the laws of 1982, are amended to read as
3 follows:
4 4. If a petition is filed under subdivision one, the period of
5 probation as prescribed by section 353.2 or conditional discharge as
6 prescribed by section 353.1 shall be interrupted as of the date of the
7 filing of the petition. Such interruption shall continue until a final
8 determination as to the petition has been made by the court pursuant to
9 a hearing held in accordance with section 360.3 or until such time as
10 the respondent reaches the maximum age of acceptance into [a division
11 for youth] an office of children and family services facility.
12 5. If the court determines that there was no violation of probation or
13 conditional discharge by the respondent, the period of interruption
14 shall be credited to the period of probation or conditional discharge,
15 as applicable.
16 § 2. Subdivision (h) of section 735 of the family court act, as added
17 by section 7 of part E of chapter 57 of the laws of 2005, is amended to
18 read as follows:
19 (h) No statement made to the designated lead agency or to any agency
20 or organization to which the potential respondent has been referred,
21 prior to the filing of the petition, or if the petition has been filed,
22 prior to the time the respondent has been notified that attempts at
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD05971-04-5
A. 5897 2
1 diversion will not be made or have been terminated, or prior to the
2 commencement of a fact-finding hearing if attempts at diversion have not
3 terminated previously, may be admitted into evidence at a fact-finding
4 hearing or, if the proceeding is transferred to a criminal court, at any
5 time prior to a conviction.
6 § 3. The family court act is amended by adding a new section 743 to
7 read as follows:
8 § 743. Acceptance of an admission. (a) Before accepting an admission,
9 the court shall advise the respondent of his or her right to a fact-
10 finding hearing. The court shall also ascertain through allocution of
11 the respondent and his or her parent or person legally responsible for
12 his or her care, if present, that the respondent:
13 (i) committed the act or acts to which an admission is being entered;
14 (ii) is voluntarily waiving his or her right to a fact-finding hear-
15 ing; and
16 (iii) is aware of the possible specific dispositional orders.
17 The provisions of this subdivision shall not be waived.
18 (b) Upon acceptance of an admission, the court shall state the reasons
19 for its determination and shall enter a fact-finding order. The court
20 shall schedule a dispositional hearing in accordance with subdivision
21 (b) or (c) of section seven hundred forty-nine of this part.
22 § 4. Section 776 of the family court act is amended to read as
23 follows:
24 § 776. Failure to comply with terms and conditions of suspended judg-
25 ment. [If a] A respondent [is] brought before the court for failure to
26 comply with reasonable terms and conditions of [a] an order of suspended
27 judgment [issued under this article and if,] shall be subject to section
28 seven hundred seventy-nine-a of this part. If, after hearing, the court
29 [is satisfied] determines by competent proof that the respondent without
30 just cause failed to comply with such terms and conditions, the court
31 may adjourn the matter for a new dispositional hearing in accordance
32 with subdivision (b) or (c) of section seven hundred forty-nine of this
33 article. The court may revoke the [suspension] order of suspended judg-
34 ment and proceed to make any order that might have been made at the time
35 judgment was suspended.
36 § 5. Section 779 of the family court act is amended to read as
37 follows:
38 § 779. [Failure] Jurisdiction and supervision of respondent placed on
39 probation; failure to comply with terms of probation. [If a] (a) A
40 respondent who is placed on probation in accordance with section seven
41 hundred fifty-seven of this article shall remain under the legal juris-
42 diction of the court pending expiration or termination of the period of
43 probation.
44 (b) The probation service shall supervise the respondent during the
45 period of such legal jurisdiction.
46 (c) A respondent [is] brought before the court for failure to comply
47 with reasonable terms and conditions of an order of probation issued
48 under section seven hundred fifty-seven of this article [and if,] shall
49 be subject to section seven hundred seventy-nine-a of this article. If,
50 after a hearing pursuant to such section, the court [is satisfied]
51 determines by competent proof that the respondent without just cause
52 failed to comply with such terms and conditions, the court may adjourn
53 the matter for a new dispositional hearing in accordance with subdivi-
54 sion (b) or (c) of section seven hundred forty-nine of this article. The
55 court may revoke the order of probation and proceed to make any order
A. 5897 3
1 that might have been made at the time the order of probation was
2 entered.
3 § 6. Section 779-a of the family court act, as amended by chapter 309
4 of the laws of 1996, is amended to read as follows:
5 § 779-a. [Declaration of delinquency concerning juvenile delinquents
6 and persons in need of supervision.] Petition and hearing on violation
7 of order of probation or suspended judgment. (a) If, at any time during
8 the period of [a disposition of] probation, the [court] petitioner,
9 probation service or appropriate presentment agency has reasonable cause
10 to believe the respondent has violated a condition of the disposition,
11 [it] the petitioner, probation service or appropriate presentment agency
12 may [declare the respondent delinquent and] file a [written declaration
13 of delinquency. Upon such filing, the respondent shall be declared
14 delinquent of his disposition of probation and such disposition shall be
15 tolled. The] violation petition.
16 (b) The petition must be verified and subscribed by the petitioner,
17 probation service or the appropriate presentment agency. The petition
18 must specify the condition or conditions of the order violated and a
19 reasonable description of the date, time, place and specific manner in
20 which the violation occurred. Non-hearsay allegations of the factual
21 part of the petition or of any supporting depositions must establish, if
22 true, every violation charged.
23 (c) Upon the filing of a violation petition, the court [then] must
24 promptly take reasonable and appropriate action to cause the respondent
25 to appear before it for the purpose of enabling the court to make a
26 final determination with respect to the alleged delinquency. [The] Where
27 the respondent is on probation pursuant to section seven hundred fifty-
28 seven of this article, the time for prompt court action shall not be
29 construed against the probation service when the respondent has abscond-
30 ed from probation supervision and the respondent's whereabouts are
31 unknown. The court must be notified promptly of the circumstances of any
32 such probationers.
33 (d) If a petition is filed under subdivision (a) of this section and
34 the petition satisfies the requirements of subdivision (b) of this
35 section, the period of probation or suspended judgment prescribed by
36 section seven hundred fifty-five or seven hundred fifty-seven of this
37 article shall be interrupted as of the date of the filing of the peti-
38 tion. Such interruption shall continue until a final determination of
39 the petition or until such time as the respondent reaches the maximum
40 age of acceptance into placement with the commissioner of social
41 services. If the court dismisses the violation petition, the period of
42 interruption shall be credited to the period of probation or suspended
43 judgment.
44 (e) Hearing on violation. (i) The court may not revoke an order of
45 probation or suspended judgment unless the court has found by competent
46 proof that the respondent has violated a condition of such order in an
47 important respect and without just cause and that the respondent has had
48 an opportunity to be heard. The respondent is entitled to a hearing
49 promptly after a violation petition has been filed. The respondent is
50 entitled to counsel at all stages of the proceeding and may not waive
51 representation by counsel except as provided in section two hundred
52 forty-nine-a of this act.
53 (ii) At the time of the respondent's first appearance following the
54 filing of a violation petition, the court must:
55 (A) advise the respondent of the contents of the petition and furnish
56 a copy to the respondent;
A. 5897 4
1 (B) advise the respondent that he or she is entitled to counsel at all
2 stages of a proceeding under this section and appoint an attorney pursu-
3 ant to section two hundred forty-nine of this act if independent legal
4 representation is not available to the respondent. If practicable, the
5 court shall appoint the same attorney who represented the respondent in
6 the original proceedings under this article; and
7 (C) determine whether the respondent should be released or detained
8 pursuant to section seven hundred twenty of this article.
9 (iii) Upon request, the court shall grant a reasonable adjournment to
10 the respondent to prepare for the hearing.
11 (iv) At the hearing, the court may receive any evidence that is rele-
12 vant, competent and material. The respondent may cross-examine witnesses
13 and present evidence on his or her own behalf. The court's determination
14 must be based upon competent evidence.
15 (v) At the conclusion of the hearing, the court may adjourn the matter
16 for a new dispositional hearing in accordance with subdivision (b) or
17 (c) of section seven hundred forty-nine of this article. The court may
18 revoke, continue or modify the order of probation or suspended judgment.
19 If the court revokes the order, it shall order a different disposition
20 pursuant to subdivision one of section seven hundred fifty-four of this
21 article and shall make findings in accordance with subdivision two of
22 such section. If the court continues the order of probation or
23 suspended judgment, it shall dismiss the petition of violation.
24 § 7. This act shall take effect on the ninetieth day after it shall
25 have become a law and shall apply to petitions for violations of
26 probation, conditional discharge and suspended judgment filed on or
27 after such effective date.
