Relates to the prosecution of certain juveniles between the ages of 16 and 18 charged with certain felony offenses, including possession of a firearm; relates to the transfer of such cases to family court.
STATE OF NEW YORK
________________________________________________________________________
9173--A
IN ASSEMBLY
February 7, 2022
___________
Introduced by M. of A. CUSICK, WOERNER, BUTTENSCHON, McDONALD, CYMBROW-
ITZ, GRIFFIN, ABBATE, THIELE, WALLACE, EICHENSTEIN -- read once and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the criminal procedure law and the family court act, in
relation to the prosecution of certain juveniles charged with certain
felony crimes and the handling of such cases
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 722.23 of the criminal procedure law, as added by
2 section 1-a of part WWW of chapter 59 of the laws of 2017, is amended to
3 read as follows:
4 § 722.23 Removal of adolescent offenders to family court.
5 1. (a) Following the arraignment of a defendant charged with a crime
6 committed when he or she was sixteen[,] or [commencing October first,
7 two thousand nineteen,] seventeen years of age, other than any class A
8 felony except for those defined in article two hundred twenty of the
9 penal law, a violent felony defined in section 70.02 of the penal law or
10 a felony listed in paragraph one or two of subdivision forty-two of
11 section 1.20 of this chapter, a felony in violation of article two
12 hundred sixty-five of the penal law, or an offense set forth in the
13 vehicle and traffic law, the court shall order the removal of the action
14 to the family court in accordance with the applicable provisions of
15 article seven hundred twenty-five of this title unless, within thirty
16 calendar days of such arraignment, the district attorney makes a motion
17 to prevent removal of the action pursuant to this subdivision. If the
18 defendant fails to report to the probation department as directed, the
19 thirty day time period shall be tolled until such time as he or she
20 reports to the probation department.
21 (b) A motion to prevent removal of an action in youth part shall be
22 made in writing and upon prompt notice to the defendant. The motion
23 shall contain allegations of sworn fact based upon personal knowledge of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14468-04-2
A. 9173--A 2
1 the affiant, and shall indicate if the district attorney is requesting a
2 hearing. The motion shall be noticed to be heard promptly.
3 (c) The defendant shall be given an opportunity to reply. The defend-
4 ant shall be granted any reasonable request for a delay. Either party
5 may request a hearing on the facts alleged in the motion to prevent
6 removal of the action. The hearing shall be held expeditiously.
7 (d) The court shall deny the motion to prevent removal of the action
8 in youth part unless the court makes a determination upon such motion by
9 the district attorney that extraordinary circumstances exist that should
10 prevent the transfer of the action to family court.
11 (e) The court shall make a determination in writing or on the record
12 within five days of the conclusion of the hearing or submission by the
13 defense, whichever is later. Such determination shall include findings
14 of fact and to the extent practicable conclusions of law.
15 (f) For the purposes of this section, there shall be a presumption
16 against custody and case planning services shall be made available to
17 the defendant.
18 (g) Notwithstanding any other provision of law, section 308.1 of the
19 family court act shall apply to all actions transferred pursuant to this
20 section provided, however, such cases shall not be considered removals
21 subject to subdivision thirteen of such section 308.1.
22 (h) Nothing in this subdivision shall preclude, and a court may order,
23 the removal of an action to family court where all parties agree or
24 pursuant to this chapter.
25 2. (a) Upon the arraignment of a defendant charged with a crime
26 committed when he or she was sixteen or[, commencing October first, two
27 thousand nineteen,] seventeen years of age on a class A felony, other
28 than those defined in article [220] two hundred twenty of the penal law,
29 [or] a violent felony defined in section 70.02 of the penal law, or a
30 felony in violation of article two hundred sixty-five of the penal law,
31 the court shall schedule an appearance no later than six calendar days
32 from such arraignment for the purpose of reviewing the accusatory
33 instrument pursuant to this subdivision. The court shall notify the
34 district attorney and defendant regarding the purpose of such appear-
35 ance.
36 (b) Upon such appearance, the court shall review the accusatory
37 instrument and any other relevant facts for the purpose of [making a
38 determination] determining whether to remove the action to the family
39 court pursuant to paragraph (c) of this subdivision. Both parties may be
40 heard and submit information relevant to the determination.
41 (c) [The court shall order the action to proceed in accordance with
42 subdivision one of this section unless, after reviewing the papers and
43 hearing from the parties, the court determines in writing that] Other
44 than any class A felony except for those defined in article two hundred
45 twenty of the penal law, a violent felony defined in section 70.02 of
46 the penal law, a felony listed in paragraph one or two of subdivision
47 forty-two of section 1.20 of this chapter, a felony in violation of
48 article two hundred sixty-five of the penal law, or an offense set forth
49 in the vehicle and traffic law, the court may, but shall not be required
50 to, order removal after considering the criteria specified in subdivi-
51 sion two of section 722.22 of this article; provided, however, that the
52 court shall not order removal if the district attorney proved by a
53 preponderance of the evidence one or more of the following as set forth
54 in the accusatory instrument:
55 (i) the defendant caused or actively participated in a crime that
56 caused significant physical injury to a person other than a participant
A. 9173--A 3
1 in the offense or a crime in accordance with accessorial conduct as
2 defined in section 20.00 of the penal law or actively participated in a
3 crime through accessorial conduct as defined in section 20.00 of the
4 penal law; or
5 (ii) the defendant [displayed] possessed a firearm, shotgun, rifle or
6 deadly weapon as defined in the penal law [in furtherance of such
7 offense] or possessed what appeared to be a firearm, shotgun, rifle or
8 deadly weapon as defined in the penal law, or actively participated in a
9 crime where a co-defendant possessed a firearm, shotgun, rifle or deadly
10 weapon as defined in the penal law or where a co-defendant possessed
11 what appears to be a firearm, shotgun, rifle or deadly weapon as defined
12 in the penal law; or
13 (iii) the defendant unlawfully engaged in sexual intercourse, oral
14 sexual conduct, anal sexual conduct or sexual contact as defined in
15 section 130.00 of the penal law.
16 (d) Where the court makes a determination that the action shall not
17 proceed in accordance with subdivision one of this section, such deter-
18 mination shall be made in writing or on the record and shall include
19 findings of fact and to the extent practicable conclusions of law.
20 (e) Nothing in this subdivision shall preclude, and the court may
21 order, the removal of an action to family court where all parties agree
22 or pursuant to this chapter.
23 3. Notwithstanding the provisions of any other law, if at any time one
24 or more charges in the accusatory instrument are reduced, such that the
25 elements of the highest remaining charge would be removable pursuant to
26 subdivisions one or two of this section, then the court, sua sponte or
27 in response to a motion pursuant to subdivisions one or two of this
28 section by the defendant, shall promptly notify the parties and direct
29 that the matter proceed in accordance with subdivision one of this
30 section, provided, however, that in such instance, the district attorney
31 must file any motion to prevent removal within thirty days of effecting
32 or receiving notice of such reduction.
33 4. A defendant may waive review of the accusatory instrument by the
34 court and the opportunity for removal in accordance with this section,
35 provided that such waiver is made by the defendant knowingly, voluntar-
36 ily and in open court, in the presence of and with the approval of his
37 or her counsel and the court. An earlier waiver shall not constitute a
38 waiver of review and the opportunity for removal under this section.
39 § 2. Subdivision 5 of section 722.21 of the criminal procedure law, as
40 added by section 1-a of part WWW of chapter 59 of the laws of 2017, is
41 amended to read as follows:
42 5. Notwithstanding subdivisions two and three of this section, at the
43 request of the district attorney, the court shall order removal of an
44 action against an adolescent offender charged with an offense listed in
45 paragraph (a) of subdivision two of section 722.23 of this article, to
46 the family court pursuant to the provisions of article seven hundred
47 twenty-five of this title and upon consideration of the criteria speci-
48 fied in subdivision two of section 722.22 of this article, it is deter-
49 mined that to do so would be in the interests of justice. Where, howev-
50 er, the felony complaint charges the adolescent offender with murder in
51 the second degree as defined in section 125.25 of the penal law, rape in
52 the first degree as defined in subdivision one of section 130.35 of the
53 penal law, criminal sexual act in the first degree as defined in subdi-
54 vision one of section 130.50 of the penal law, or an armed felony as
55 defined in paragraph (a) of subdivision forty-one of section 1.20 of
56 this chapter, a determination that such action be removed to the family
A. 9173--A 4
1 court shall, in addition, be based upon a finding of one or more of the
2 following factors: (i) mitigating circumstances that bear directly upon
3 the manner in which the crime was committed; or (ii) where the defendant
4 was not the sole participant in the crime, the defendant's participation
5 was relatively minor although not so minor as to constitute a defense to
6 the prosecution; or (iii) possible deficiencies in proof of the crime.
7 In determining whether an action be removed to the family court, the
8 court may also consider the factors provided for in subdivision two of
9 section 722.22 of this article.
10 § 3. Paragraphs (h) and (i) of subdivision 2 of section 722.22 of the
11 criminal procedure law, as added by section 1-a of part WWW of chapter
12 59 of the laws of 2017, are amended to read as follows:
13 (h) where the court deems it appropriate, the attitude of the
14 complainant or victim with respect to the motion; [and]
15 (i) any other pending charges against the individual;
16 (j) whether the individual was an active participant in the crime or
17 whether the individual is liable through accessorial conduct as defined
18 in section 20.00 of the penal law;
19 (k) any other relevant fact indicating that a judgment of conviction
20 in the criminal court would serve no useful purpose; and
21 (l) any other factor the court deems relevant to its determination.
22 § 4. Section 381.1 of the family court act, as added by chapter 920 of
23 the laws of 1982, is amended to read as follows:
24 § 381.1. Transfer of records and information to institutions and agen-
25 cies. 1. Whenever a person is placed with an institution suitable for
26 placement of a person adjudicated a juvenile delinquent maintained by
27 the state or any subdivision thereof or to an authorized agency includ-
28 ing the division for youth, the family court placing such person shall
29 forthwith transmit a copy of the orders of the family court pursuant to
30 sections 352.1 and 352.2 and of the probation report and all other rele-
31 vant evaluative records in the possession of the family court and
32 probation department related to such person, including but not limited
33 to any diagnostic, educational, medical, psychological and psychiatric
34 records with respect to such person to such institution or agency,
35 notwithstanding any contrary provision of law.
36 2. For any defendant appearing before the youth part of the superior
37 court, the family court shall, upon request of the youth part judge,
38 forward a copy of all previous family court records created under this
39 article relating to such defendant in order to assist the youth part's
40 determination as to whether to remove a case to family court, including,
41 notwithstanding any contrary provision of law, whether the case was
42 sealed pursuant to subdivision one of section 375.1 of this article
43 based on a disposition defined in paragraph (a), (b), (c), (d), (f),
44 (g), (h), or (i) of subdivision two of section 375.1 of this article.
45 Such records shall include any records created by probation services in
46 accordance with section 308.1 of this article. The chief administrator
47 of the unified court system shall create an electronic sharing mechanism
48 to ensure secure, timely, and efficient access between the family court
49 and youth part, as well as to the prosecutor on the youth part case, and
50 the defense.
51 3. Whenever a person subject to this act has been arrested, the family
52 court shall promptly make any and all previous family court records
53 created under this article related to that person available to the
54 probation services for the purpose of determining whether the person is
55 eligible for adjustment services, including, notwithstanding any contra-
56 ry provision of law, whether the case was sealed pursuant to subdivision
A. 9173--A 5
1 one of section 375.1 of this article based on a disposition defined in
2 paragraph (a), (b), (c), (d), (f), (g), (h), or (i) of subdivision two
3 of section 375.1 of this article. An electronic sharing mechanism shall
4 be created between the family court and probation services to ensure
5 secure, timely, and efficient access to such records.
6 § 5. Section 381.3 of the family court act, as added by chapter 920 of
7 the laws of 1982, paragraph (b) of subdivision 2 as amended by chapter
8 926 of the laws of 1982, is amended to read as follows:
9 § 381.3. Use of police records. 1. All police records relating to the
10 arrest and disposition of any person under this article shall be kept in
11 files separate and apart from the arrests of adults and shall be with-
12 held from public inspection. For purposes of this section, "public
13 inspection" shall not mean a presentment agency in family court, a law
14 enforcement agency responsible for the subject criminal investigation,
15 probation services, or any agency designated in subdivision two of
16 section 720.35 of the criminal procedure act.
17 2. Notwithstanding the provisions of subdivision one, the family court
18 in the county in which the petition was adjudicated may, upon motion and
19 for good cause shown, order [such] any and all previous family court
20 records open:
21 (a) to the respondent or his parent or person responsible for his
22 care; or
23 (b) if the respondent is subsequently convicted of a crime, to a judge
24 of the court in which he was convicted, unless such record has been
25 sealed pursuant to section 375.1 of this article, except for a disposi-
26 tion defined in paragraph (a), (b), (c), (d), (f), (g), (h), or (i) of
27 subdivision two of section 375.1 of this article.
28 3. An order issued under subdivision two of this section must be in
29 writing.
30 § 6. Section 302.2 of the family court act, as added by chapter 920 of
31 the laws of 1982, is amended to read as follows:
32 § 302.2. Statute of limitations. 1. A juvenile delinquency proceeding
33 charging the respondent with a crime allegedly committed when such
34 respondent was under the age of sixteen must be commenced within the
35 period of limitation prescribed in section 30.10 of the criminal proce-
36 dure law or, unless the alleged act is a designated felony as defined in
37 subdivision eight of section 301.2 of this part, commenced before the
38 respondent's eighteenth birthday, whichever occurs earlier. When the
39 alleged act constitutes a designated felony as defined in subdivision
40 eight of section 301.2 of this part such proceeding must be commenced
41 within [such] the period of limitation prescribed in section 30.10 of
42 the criminal procedure law or before the respondent's twentieth birth-
43 day, whichever occurs earlier.
44 2. A juvenile delinquency proceeding charging the respondent with a
45 crime allegedly committed when such respondent was age sixteen years or
46 older must be commenced within the period of limitation prescribed in
47 section 30.10 of the criminal procedure law or, unless the alleged act
48 is a designated felony as defined in subdivision eight of section 301.2
49 of this part, commenced before the respondent's twentieth birthday,
50 whichever occurs earlier. When the alleged act constitutes a designated
51 felony as defined in subdivision eight of section 301.2 of this part,
52 such proceeding must be commenced within the period of limitation
53 prescribed in section 30.10 of the criminal procedure law or before the
54 respondent's twenty-second birthday, whichever occurs earlier.
55 § 7. This act shall take effect immediately.
