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A05891 Summary:

BILL NOA05891C
 
SAME ASSAME AS S02800-C
 
SPONSORJoyner
 
COSPNSRSimon, Dickens, Carroll, Aubry, Barron, O'Donnell, Dinowitz, Forrest, Jackson, Hevesi, Mitaynes, Gonzalez-Rojas, Otis, Epstein, Kelles, Cruz, Reyes, Zinerman, Seawright, Pretlow, Anderson, Burdick, Burgos, Quart, Rosenthal L, Peoples-Stokes, Bronson
 
MLTSPNSR
 
Amd §§305.2 & 724, Fam Ct Act; amd §§140.20, 140.27 & 140.40, CP L
 
Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles and sixteen and seventeen year olds into custody.
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A05891 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5891--C
                                                                Cal. No. 194
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 1, 2021
                                       ___________
 
        Introduced   by  M.  of  A.  JOYNER,  SIMON,  DICKENS,  CARROLL,  AUBRY,
          O'DONNELL, DINOWITZ, FORREST, JACKSON, HEVESI, MITAYNES,  GONZALEZ-RO-
          JAS, OTIS, EPSTEIN, KELLES, CRUZ, REYES, ZINERMAN, SEAWRIGHT, PRETLOW,
          ANDERSON,  BURDICK,  BURGOS -- read once and referred to the Committee
          on Children  and  Families  --  committee  discharged,  bill  amended,
          ordered  reprinted  as  amended  and  recommitted to said committee --
          reported  and  referred  to  the  Committee  on  Codes  --   committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee -- ordered to a third reading, amended and ordered
          reprinted, retaining its place on the order of third reading
 
        AN ACT to amend the family court act and the criminal procedure law,  in
          relation  to  the custodial interrogation of juveniles by law enforce-
          ment
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Subdivision 3 of section 305.2 of the family court act, as
     2  added by chapter 920 of the laws of 1982, is amended to read as follows:
     3    3. If an officer takes such child into custody or if a child is deliv-
     4  ered to him or her under section 305.1, he  or  she  shall  immediately,
     5  before  transporting  the  child to the police station house, notify the
     6  parent or other person legally responsible for the child's care,  or  if
     7  such  legally responsible person is unavailable the person with whom the
     8  child resides, that the child has been taken into custody.
     9    § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
    10  court  act,  as  added by chapter 920 of the laws of 1982, is amended to
    11  read as follows:
    12    (a) when the officer reasonably believes such parent or  other  person
    13  legally  responsible for the child's care will appear, take the child to
    14  his or her home, the station house, or another location agreed upon with
    15  the parent or person legally responsible, and release the child  to  the
    16  custody  of  [his  parents  or  other person legally responsible for his

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03836-14-2

        A. 5891--C                          2

     1  care] such person upon the issuance in accordance with section 307.1  of
     2  a  family  court  appearance ticket to the child and the person to whose
     3  custody the child is released; or
     4    §  3.  Paragraph  (b)  of subdivision 4 of section 305.2 of the family
     5  court act, as amended by section 63 of part WWW of  chapter  59  of  the
     6  laws of 2017, is amended to read as follows:
     7    (b)  when  the officer does not reasonably believe the parent or other
     8  person legally responsible for the child's  care  will  appear  for  the
     9  child,  forthwith and with all reasonable speed take the child directly,
    10  and without his or her first being taken to the police station house, to
    11  the family court located in the county in which the act occasioning  the
    12  taking  into  custody allegedly was committed, or, when the family court
    13  is not in session, to the most accessible magistrate, if any, designated
    14  by the appellate division of the supreme court in the applicable depart-
    15  ment to conduct a hearing under section 307.4 [of this part, unless  the
    16  officer  determines that it is necessary to question the child, in which
    17  case he or she may take the child to a facility designated by the  chief
    18  administrator  of  the courts as a suitable place for the questioning of
    19  children or, upon the consent  of  a  parent  or  other  person  legally
    20  responsible  for  the  care  of  the child, to the child's residence and
    21  there question him or her for a reasonable period of time]; or
    22    § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
    23  court  act,  as amended by section 3 of part G of chapter 58 of the laws
    24  of 2010, is amended to read as follows:
    25    (c) when the officer does not release the child pursuant to  paragraph
    26  (a)  of  this  subdivision,  or  take  the child to family court or to a
    27  magistrate pursuant to paragraph (b) of this subdivision, take the child
    28  to a place certified by the office of children and family services as  a
    29  juvenile detention facility for the reception of children; or
    30    §  5.  Subdivision  5  of  section  305.2  of the family court act, as
    31  amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
    32  follows:
    33    5.  If  such  child has allegedly committed a designated felony act as
    34  defined in subdivision eight of section 301.2, and the family  court  in
    35  the  county  is  in  session, the officer shall forthwith take the child
    36  directly to such family court[, unless the officer takes the child to  a
    37  facility for questioning in accordance with paragraph (b) of subdivision
    38  four.  If such child has not allegedly committed a designated felony act
    39  and such family court is in session, the officer shall either  forthwith
    40  take  the  child directly to such family court, unless the officer takes
    41  the child to a facility for questioning in accordance with paragraph (b)
    42  of subdivision four or release the child in  accordance  with  paragraph
    43  (a) of subdivision four] or, when the family court is not in session, to
    44  the  most  accessible  magistrate,  if  any, designated by the appellate
    45  division of the supreme court in the applicable department to conduct  a
    46  hearing under section 307.4.
    47    §  6. Subdivision 6 of section 305.2 of the family court act, as added
    48  by chapter 920 of the laws of 1982, is amended to read as follows:
    49    6. [In all other cases] If such child has not  allegedly  committed  a
    50  designated  felony act, and in the absence of special circumstances, the
    51  officer shall release the child in  accordance  with  paragraph  (a)  of
    52  subdivision four.
    53    §  7.  Subdivisions  7 and 8 of section 305.2 of the family court act,
    54  subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
    55  sion 8 as amended by chapter 299 of the laws of 2020, are amended and  a
    56  new subdivision 10 is added to read as follows:

        A. 5891--C                          3
 
     1    7.   If the officer determines that questioning of the child is neces-
     2  sary prior to taking action authorized by subdivision four or five,  the
     3  officer  may take the child to a facility designated by the chief admin-
     4  istrator of the courts as a suitable place for the questioning of  chil-
     5  dren  or, upon the consent of a parent or other person legally responsi-
     6  ble for the care of the child,  to  the  child's  residence  and  there,
     7  subject  to  the  requirements of subdivision eight, question him or her
     8  for a reasonable period of time.
     9    8. A child shall not be questioned pursuant  to  this  section  unless
    10  [he] or until:
    11    (a)  the child and a person required to be notified pursuant to subdi-
    12  vision three if present, have been advised:
    13    [(a)] (i) of the child's right to remain silent;
    14    [(b)] (ii) that the statements made by the child  may  be  used  in  a
    15  court of law;
    16    [(c)]  (iii)  of the child's right to have an attorney present at such
    17  questioning; and
    18    [(d)] (iv) of the child's right to have an attorney provided  for  him
    19  or her without charge if he or she is indigent; and
    20    (b)  the  child  has  consulted with legal counsel in person, by tele-
    21  phone, or by video conference. This consultation may not be waived.
    22    [8.] 9. In determining the suitability of questioning and  determining
    23  the  reasonable period of time for questioning such a child, the child's
    24  age, the presence or absence of his or  her  parents  or  other  persons
    25  legally responsible for his or her care, notification pursuant to subdi-
    26  vision  three  and,  where the child has been interrogated at a facility
    27  designated by the chief administrator of the courts as a suitable  place
    28  for  the  questioning  of  juveniles,  whether  the interrogation was in
    29  compliance with  the  video-recording  and  disclosure  requirements  of
    30  subdivision  five-a  of  this  section  shall be included among relevant
    31  considerations.
    32    10. In addition to statements that must be suppressed as involuntarily
    33  made within the definition in subdivision two of section 344.2, a state-
    34  ment shall be suppressed: when the child has not  consulted  with  legal
    35  counsel  as  required  by  paragraph (b) of subdivision eight; or when a
    36  person notified pursuant to subdivision three, if present, has not  been
    37  advised of and voluntarily waived the rights delineated in paragraph (a)
    38  of subdivision eight.
    39    §  8.  Section  724  of  the family court act, the section heading and
    40  subdivisions (b) and (c) as amended by chapter 843 of the laws of  1980,
    41  subdivision  (a)  as  amended  by chapter 920 of the laws of 1982, para-
    42  graphs (i) and (ii) as amended and paragraph (iv) of subdivision (b)  as
    43  added  by  section  4 of part E of chapter 57 of the laws of 2005, para-
    44  graph (iii) of subdivision (b) as amended by section  7  of  part  M  of
    45  chapter  56 of the laws of 2017, and subdivision (d) as added by chapter
    46  809 of the laws of 1963, is amended to read as follows:
    47    § 724. Duties of police officer or peace  officer  after  taking  into
    48  custody  or  on  delivery by private person. (a) If a peace officer or a
    49  police officer takes into custody or if a person is delivered to him  or
    50  her  under  section  seven hundred twenty-three, the officer shall imme-
    51  diately, before transporting the child to any other location, notify the
    52  parent or other person legally responsible for his or her care,  or  the
    53  person  with  whom he or she is domiciled, that he or she has been taken
    54  into custody.
    55    (b) After making every reasonable effort to give notice  under  [para-
    56  graph] subdivision (a) of this section, the officer shall

        A. 5891--C                          4
 
     1    (i)  when  the officer reasonably believes such parent or other person
     2  legally responsible for the child's care will appear, take the child  to
     3  his  or  her  home, the police station house, or another location agreed
     4  upon with the parent or person  legally  responsible,  and  release  the
     5  youth to the custody of [his or her parent or other] such person [legal-
     6  ly  responsible  for  his or her care] upon the written promise, without
     7  security, of the person to whose custody the youth is released  that  he
     8  or she will produce the youth before the lead agency designated pursuant
     9  to section seven hundred thirty-five of this article in that county at a
    10  time and place specified in writing; or
    11    (ii) when the officer does not reasonably believe such parent or other
    12  person  legally  responsible  for  the  child's care will appear for the
    13  child, forthwith and with all reasonable speed take the youth  directly,
    14  and without first being taken to the police station house, to the desig-
    15  nated lead agency located in the county in which the act occasioning the
    16  taking  into  custody allegedly was done[, unless the officer determines
    17  that it is necessary to question the youth, in which case he or she  may
    18  take  the  youth  to a facility designated by the chief administrator of
    19  the courts as a suitable place for the questioning of youth or, upon the
    20  consent of a parent or other person legally responsible for the care  of
    21  the  youth, to the youth's residence and there question him or her for a
    22  reasonable period of time]; or
    23    (iii) take a youth in need of crisis intervention or respite  services
    24  to  a  runaway  and  homeless  youth  crisis  services  program or other
    25  approved respite or crisis program; or
    26    (iv) take the youth directly to the family court located in the county
    27  in which the act occasioning the taking into custody was allegedly done,
    28  provided that the officer affirms on the record that he or she attempted
    29  to exercise the options identified in paragraphs (i), (ii) and (iii)  of
    30  this  subdivision, was unable to exercise these options, and the reasons
    31  therefor.
    32    (c) In the absence of special circumstances, the officer shall release
    33  the child in accord with paragraph [(b)] (i) of subdivision (b) of  this
    34  section.
    35    (d)  If the officer determines that questioning of the child is neces-
    36  sary prior to taking  action  authorized  by  subdivision  (b)  of  this
    37  section,  the officer may take the child to a facility designated by the
    38  chief administrator of the courts as a suitable place for the  question-
    39  ing of children or, upon the consent of a parent or other person legally
    40  responsible  for  the  care  of  the child, to the child's residence and
    41  there, subject to the requirements of subdivision (e) of  this  section,
    42  question him or her for a reasonable period of time.
    43    (e) In determining the suitability of questioning and determining what
    44  is  a  "reasonable  period of time" for questioning a child, the child's
    45  age [and], the presence or absence of his or her parents or other person
    46  legally responsible for his or her care  and  notification  pursuant  to
    47  subdivision  (a)  of  this  section shall be included among the relevant
    48  considerations.
    49    (f) No statement made to a peace officer or a police officer prior  to
    50  the commencement of a fact-finding hearing may be admitted into evidence
    51  at a fact-finding hearing.
    52    § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
    53  amended  by section 20 of part WWW of chapter 59 of the laws of 2017, is
    54  amended to read as follows:
    55    6. (a) Upon arresting a juvenile  offender  or  a  person  sixteen  or
    56  [commencing  October  first,  two thousand nineteen,] seventeen years of

        A. 5891--C                          5
 
     1  age without a warrant, the  police  officer  shall  immediately,  before
     2  transporting the child to the police station house, notify the parent or
     3  other  person legally responsible for his or her care or the person with
     4  whom  he  or  she  is domiciled, that such juvenile offender or [person]
     5  sixteen or seventeen year old has been arrested, and the location of the
     6  facility where he or she [is being] will be detained.
     7    (b) If the officer determines that it is necessary to question a juve-
     8  nile offender or [such person] sixteen or seventeen year old, the  offi-
     9  cer  must take him or her to a facility designated by the chief adminis-
    10  trator of the courts as a suitable place for the questioning of children
    11  or, upon the consent of a parent or other person legally responsible for
    12  the care of the juvenile or [such person] sixteen or seventeen year old,
    13  to his or her residence and there, subject to the requirements of  para-
    14  graph  (c)  of  this  subdivision,  question him or her for a reasonable
    15  period of time.
    16    (c) A juvenile offender or [such person] sixteen or seventeen year old
    17  shall not be questioned pursuant to this section unless or until:
    18    (i) he or she and a person required to be notified pursuant  to  para-
    19  graph (a) of this subdivision, if present, have been advised:
    20    [(a)]  (A)  of  the  juvenile offender's or [such person's] sixteen or
    21  seventeen year old's right to remain silent;
    22    [(b)] (B) that the statements made by him or her  may  be  used  in  a
    23  court of law;
    24    [(c)]  (C)  of  his  or  her right to have an attorney present at such
    25  questioning; and
    26    [(d)] (D) of his or her right to have an attorney provided for him  or
    27  her without charge if he or she is unable to afford counsel[.];
    28    (ii)  the  juvenile  offender  or  sixteen  or  seventeen year old has
    29  consulted with an attorney in person, by telephone, or by video  confer-
    30  ence. This consultation may not be waived.
    31    (d)  In determining the suitability of questioning and determining the
    32  reasonable period of time for questioning such a  juvenile  offender  or
    33  [person]  sixteen or seventeen year old, his or her age, the presence or
    34  absence of his or her parents or other persons legally  responsible  for
    35  his  or  her  care  and  notification  pursuant to paragraph (a) of this
    36  subdivision shall be included among relevant considerations.
    37    (e) In addition to statements that must be suppressed as involuntarily
    38  made within the definition in subdivision two of section 60.45  of  this
    39  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    40  consulted with an attorney as required by paragraph (c) of this subdivi-
    41  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    42  vision, if present, has not been advised of and voluntarily  waived  the
    43  rights delineated in paragraph (c) of this subdivision.
    44    §  10.  Subdivision 5 of section 140.27 of the criminal procedure law,
    45  as amended by section 23 of part WWW of chapter 59 of the laws of  2017,
    46  is amended to read as follows:
    47    5.  (a)  Upon  arresting  a  juvenile  offender or a person sixteen or
    48  [commencing October first, two thousand nineteen,]  seventeen  years  of
    49  age  without  a  warrant,  the  peace  officer shall immediately, before
    50  transporting the child to the police station house, notify the parent or
    51  other person legally responsible for his or her care or the person  with
    52  whom  he  or  she  is domiciled, that such juvenile offender or [person]
    53  sixteen or seventeen year old has been arrested, and the location of the
    54  facility where he or she [is being] will be detained.
    55    (b) If the officer determines that it is necessary to question a juve-
    56  nile offender or [such person] sixteen or seventeen year old, the  offi-

        A. 5891--C                          6
 
     1  cer  must take him or her to a facility designated by the chief adminis-
     2  trator of the courts as a suitable place for the questioning of children
     3  or, upon the consent of a parent or other person legally responsible for
     4  the  care  of  a juvenile offender or [such person] sixteen or seventeen
     5  year old, to his or her residence and there, subject to the requirements
     6  of paragraph (c) of this subdivision, question him or her for a  reason-
     7  able period of time.
     8    (c) A juvenile offender or [such person] sixteen or seventeen year old
     9  shall not be questioned pursuant to this section unless or until:
    10    (i)  the  juvenile offender or [such person] sixteen or seventeen year
    11  old and a person required to be notified pursuant to  paragraph  (a)  of
    12  this subdivision, if present, have been advised:
    13    [(a)] (A) of his or her right to remain silent;
    14    [(b)]  (B)  that the statements made by the juvenile offender or [such
    15  person] sixteen or seventeen year old may be used in a court of law;
    16    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    17  questioning; and
    18    [(d)]  (D) of his or her right to have an attorney provided for him or
    19  her without charge if he or she is unable to afford counsel[.]; and
    20    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
    21  consulted  with  an attorney in person, by telephone or by video confer-
    22  ence. This consultation may not be waived.
    23    (d) In determining the suitability of questioning and determining  the
    24  reasonable  period  of  time for questioning such a juvenile offender or
    25  [such person] sixteen or seventeen year old his or her age, the presence
    26  or absence of his or her parents or other  persons  legally  responsible
    27  for  his  or her care and notification pursuant to paragraph (a) of this
    28  subdivision shall be included among relevant considerations.
    29    (e) In addition to statements that must be suppressed as involuntarily
    30  made within the definition in subdivision two of section 60.45  of  this
    31  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    32  consulted with an attorney as required by paragraph (c) of this subdivi-
    33  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    34  vision, if present, has not been advised of and voluntarily  waived  the
    35  rights delineated in paragraph (c) of this subdivision.
    36    §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
    37  as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
    38  is amended to read as follows:
    39    5.  (a)  If  a police officer takes an arrested juvenile offender or a
    40  person sixteen or [commencing October  first,  two  thousand  nineteen,]
    41  seventeen years of age into custody, the police officer shall immediate-
    42  ly, before transporting the child to the police station house notify the
    43  parent  or  other  person legally responsible for his or her care or the
    44  person with whom he or she is domiciled, that such juvenile offender  or
    45  [person]  sixteen  or  seventeen  year  old  has  been arrested, and the
    46  location of the facility where he or she [is being] will be detained.
    47    (b) If the officer determines that it is necessary to question a juve-
    48  nile offender or [such person] sixteen or seventeen year old the officer
    49  must take him or her to a facility designated by the chief administrator
    50  of the courts as a suitable place for the questioning  of  children  or,
    51  upon the consent of a parent or other person legally responsible for the
    52  care of the juvenile offender or [such person] sixteen or seventeen year
    53  old,  to  his or her residence and there, subject to the requirements of
    54  paragraph (c) of this subdivision, question him or her for a  reasonable
    55  period of time.

        A. 5891--C                          7
 
     1    (c) A juvenile offender or [such person] sixteen or seventeen year old
     2  shall not be questioned pursuant to this section unless or until:
     3    (i)  he  or she and a person required to be notified pursuant to para-
     4  graph (a) of this subdivision, if present, have been advised:
     5    [(a)] (A) of his or her right to remain silent;
     6    [(b)] (B) that the statements made by the juvenile offender  or  [such
     7  person] sixteen or seventeen year old may be used in a court of law;
     8    [(c)]  (C)  of  his  or  her right to have an attorney present at such
     9  questioning; and
    10    [(d)] (D) of his or her right to have an attorney provided for him  or
    11  her without charge if he or she is unable to afford counsel[.]; and
    12    (ii)  the  juvenile  offender  or  sixteen  or  seventeen year old has
    13  consulted with an attorney in person, by telephone, or by video  confer-
    14  ence. This consultation may not be waived.
    15    (d)  In determining the suitability of questioning and determining the
    16  reasonable period of time for questioning such a  juvenile  offender  or
    17  [such  person]  sixteen or seventeen year old, his or her age, the pres-
    18  ence or absence of his or her parents or other persons legally responsi-
    19  ble for his or her care and notification pursuant to  paragraph  (a)  of
    20  this subdivision shall be included among relevant considerations.
    21    (e) In addition to statements that must be suppressed as involuntarily
    22  made  within  the definition in subdivision two of section 60.45 of this
    23  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    24  consulted with an attorney as required by paragraph (c) of this subdivi-
    25  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    26  vision,  if  present, has not been advised of and voluntarily waived the
    27  rights delineated in paragraph (c) of this subdivision.
    28    § 12. This act shall take effect April 1, 2023.
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