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S05286 Summary:

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S05286 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          5286
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                      May 12, 2015
                                       ___________
 
        Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
          istration)  --  read twice and ordered printed, and when printed to be
          committed 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
    23  diversion  will  not  be  made  or have been terminated, or prior to the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05971-04-5
        S. 5286                             2
 
     1  commencement of a fact-finding hearing if attempts at diversion have not
     2  terminated previously, may be admitted into evidence at  a  fact-finding
     3  hearing or, if the proceeding is transferred to a criminal court, at any
     4  time prior to a conviction.
     5    §  3.  The  family court act is amended by adding a new section 743 to
     6  read as follows:
     7    § 743. Acceptance of an admission. (a) Before accepting an  admission,
     8  the  court  shall  advise  the respondent of his or her right to a fact-
     9  finding hearing. The court shall also ascertain  through  allocution  of
    10  the  respondent  and his or her parent or person legally responsible for
    11  his or her care, if present, that the respondent:
    12    (i) committed the act or acts to which an admission is being entered;
    13    (ii) is voluntarily waiving his or her right to a  fact-finding  hear-
    14  ing; and
    15    (iii) is aware of the possible specific dispositional orders.
    16  The provisions of this subdivision shall not be waived.
    17    (b) Upon acceptance of an admission, the court shall state the reasons
    18  for  its  determination  and shall enter a fact-finding order. The court
    19  shall schedule a dispositional hearing in  accordance  with  subdivision
    20  (b) or (c) of section seven hundred forty-nine of this part.
    21    §  4.  Section  776  of  the  family  court  act is amended to read as
    22  follows:
    23    § 776. Failure to comply with terms and conditions of suspended  judg-
    24  ment.  [If  a] A respondent [is] brought before the court for failure to
    25  comply with reasonable terms and conditions of [a] an order of suspended
    26  judgment [issued under this article and if,] shall be subject to section
    27  seven hundred seventy-nine-a of this part. If, after hearing, the  court
    28  [is satisfied] determines by competent proof that the respondent without
    29  just  cause  failed  to comply with such terms and conditions, the court
    30  may adjourn the matter for a new  dispositional  hearing  in  accordance
    31  with  subdivision (b) or (c) of section seven hundred forty-nine of this
    32  article. The court may revoke the [suspension] order of suspended  judg-
    33  ment and proceed to make any order that might have been made at the time
    34  judgment was suspended.
    35    §  5.  Section  779  of  the  family  court  act is amended to read as
    36  follows:
    37    § 779. [Failure] Jurisdiction and supervision of respondent placed  on
    38  probation;  failure  to  comply  with terms of probation.   [If a] (a) A
    39  respondent who is placed on probation in accordance with  section  seven
    40  hundred  fifty-seven of this article shall remain under the legal juris-
    41  diction of the court pending expiration or termination of the period  of
    42  probation.
    43    (b)  The  probation  service shall supervise the respondent during the
    44  period of such legal jurisdiction.
    45    (c) A respondent [is] brought before the court for failure  to  comply
    46  with  reasonable  terms  and  conditions of an order of probation issued
    47  under section seven hundred fifty-seven of this article [and if,]  shall
    48  be  subject to section seven hundred seventy-nine-a of this article. If,
    49  after a hearing pursuant to  such  section,  the  court  [is  satisfied]
    50  determines  by  competent  proof  that the respondent without just cause
    51  failed to comply with such terms and conditions, the court  may  adjourn
    52  the  matter  for a new dispositional hearing in accordance with subdivi-
    53  sion (b) or (c) of section seven hundred forty-nine of this article. The
    54  court may revoke the order of probation and proceed to  make  any  order
    55  that  might  have  been  made  at  the  time  the order of probation was
    56  entered.
        S. 5286                             3
 
     1    § 6. Section 779-a of the family court act, as amended by chapter  309
     2  of the laws of 1996, is amended to read as follows:
     3    §  779-a.  [Declaration of delinquency concerning juvenile delinquents
     4  and persons in need of supervision.] Petition and hearing  on  violation
     5  of  order of probation or suspended judgment. (a) If, at any time during
     6  the period of [a disposition  of]  probation,  the  [court]  petitioner,
     7  probation service or appropriate presentment agency has reasonable cause
     8  to  believe  the respondent has violated a condition of the disposition,
     9  [it] the petitioner, probation service or appropriate presentment agency
    10  may [declare the respondent delinquent and] file a [written  declaration
    11  of  delinquency.    Upon  such  filing, the respondent shall be declared
    12  delinquent of his disposition of probation and such disposition shall be
    13  tolled. The] violation petition.
    14    (b) The petition must be verified and subscribed  by  the  petitioner,
    15  probation  service  or  the appropriate presentment agency. The petition
    16  must specify the condition or conditions of the  order  violated  and  a
    17  reasonable  description  of the date, time, place and specific manner in
    18  which the violation occurred. Non-hearsay  allegations  of  the  factual
    19  part of the petition or of any supporting depositions must establish, if
    20  true, every violation charged.
    21    (c)  Upon  the  filing  of a violation petition, the court [then] must
    22  promptly take reasonable and appropriate action to cause the  respondent
    23  to  appear  before  it  for  the purpose of enabling the court to make a
    24  final determination with respect to the alleged delinquency. [The] Where
    25  the respondent is on probation pursuant to section seven hundred  fifty-
    26  seven  of  this  article,  the time for prompt court action shall not be
    27  construed against the probation service when the respondent has abscond-
    28  ed from probation  supervision  and  the  respondent's  whereabouts  are
    29  unknown. The court must be notified promptly of the circumstances of any
    30  such probationers.
    31    (d)  If  a petition is filed under subdivision (a) of this section and
    32  the petition satisfies the  requirements  of  subdivision  (b)  of  this
    33  section,  the  period  of  probation or suspended judgment prescribed by
    34  section seven hundred fifty-five or seven hundred  fifty-seven  of  this
    35  article  shall  be interrupted as of the date of the filing of the peti-
    36  tion. Such interruption shall continue until a  final  determination  of
    37  the  petition  or  until such time as the respondent reaches the maximum
    38  age of  acceptance  into  placement  with  the  commissioner  of  social
    39  services.  If  the court dismisses the violation petition, the period of
    40  interruption shall be credited to the period of probation  or  suspended
    41  judgment.
    42    (e)  Hearing  on  violation.  (i) The court may not revoke an order of
    43  probation or suspended judgment unless the court has found by  competent
    44  proof  that  the respondent has violated a condition of such order in an
    45  important respect and without just cause and that the respondent has had
    46  an opportunity to be heard.   The respondent is entitled  to  a  hearing
    47  promptly  after  a  violation petition has been filed. The respondent is
    48  entitled to counsel at all stages of the proceeding and  may  not  waive
    49  representation  by  counsel  except  as  provided in section two hundred
    50  forty-nine-a of this act.
    51    (ii) At the time of the respondent's first  appearance  following  the
    52  filing of a violation petition, the court must:
    53    (A)  advise the respondent of the contents of the petition and furnish
    54  a copy to the respondent;
    55    (B) advise the respondent that he or she is entitled to counsel at all
    56  stages of a proceeding under this section and appoint an attorney pursu-
        S. 5286                             4
 
     1  ant to section two hundred forty-nine of this act if  independent  legal
     2  representation  is  not available to the respondent. If practicable, the
     3  court shall appoint the same attorney who represented the respondent  in
     4  the original proceedings under this article; and
     5    (C)  determine  whether  the respondent should be released or detained
     6  pursuant to section seven hundred twenty of this article.
     7    (iii) Upon request, the court shall grant a reasonable adjournment  to
     8  the respondent to prepare for the hearing.
     9    (iv)  At the hearing, the court may receive any evidence that is rele-
    10  vant, competent and material. The respondent may cross-examine witnesses
    11  and present evidence on his or her own behalf. The court's determination
    12  must be based upon competent evidence.
    13    (v) At the conclusion of the hearing, the court may adjourn the matter
    14  for a new dispositional hearing in accordance with  subdivision  (b)  or
    15  (c)  of  section seven hundred forty-nine of this article. The court may
    16  revoke, continue or modify the order of probation or suspended judgment.
    17  If the court revokes the order, it shall order a  different  disposition
    18  pursuant  to subdivision one of section seven hundred fifty-four of this
    19  article and shall make findings in accordance with  subdivision  two  of
    20  such  section.    If  the  court  continues  the  order  of probation or
    21  suspended judgment, it shall dismiss the petition of violation.
    22    § 7. This act shall take effect on the ninetieth day  after  it  shall
    23  have  become  a  law  and  shall  apply  to  petitions for violations of
    24  probation, conditional discharge and  suspended  judgment  filed  on  or
    25  after such effective date.