Relates to juvenile delinquency charges of violations in family court; provides that where an order of fact-finding has been issued that includes a violation committed by a juvenile sixteen years of age or, commencing on October 1, 2019, seventeen years of age, the records shall be sealed automatically without the necessity of a motion; makes related provisions.
STATE OF NEW YORK
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7706
2021-2022 Regular Sessions
IN ASSEMBLY
May 20, 2021
___________
Introduced by M. of A. DAVILA -- (at request of the Office of Court
Administration) -- read once and referred to the Committee on Codes
AN ACT to amend the family court act and the criminal procedure law, in
relation to juvenile delinquency charges of violations in the family
court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 1 of section 301.2 of the family court act, as
2 amended by section 56 of part WWW of chapter 59 of the laws of 2017, is
3 amended to read as follows:
4 1. "Juvenile delinquent" means a person over seven and less than
5 [sixteen years of age, or commencing on October first, two thousand
6 eighteen a person over seven and less than] seventeen years of age, and
7 commencing October first, two thousand nineteen, a person over seven and
8 less than eighteen years of age, who, having committed an act that would
9 constitute a crime if committed by an adult, or (with respect to a
10 person over sixteen and less than seventeen years of age or, a person
11 over sixteen and less than eighteen years of age commencing October
12 first, two thousand nineteen) a violation as defined by subdivision
13 three of section 10.00 of the penal law if committed by an adult, where
14 such violation is alleged to have occurred in the same transaction or
15 occurrence of the alleged criminal act[, if committed by an adult], and
16 where such person: (a) is not criminally responsible for such conduct by
17 reason of infancy, or (b) is the defendant in an action ordered removed
18 from a criminal court to the family court pursuant to article seven
19 hundred twenty-five of the criminal procedure law.
20 § 2. Subdivision 3 of section 302.1 of the family court act, as added
21 by section 56-a of part WWW of chapter 59 of the laws of 2017, is
22 amended to read as follows:
23 3. [Whenever] With respect to a youth over sixteen and less than
24 seventeen years of age or, a person over sixteen and less than eighteen
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10256-02-1
A. 7706 2
1 years of age commencing October first, two thousand nineteen, whenever a
2 crime and a violation arise out of the same transaction or occurrence, a
3 charge alleging both offenses shall be made returnable before the court
4 having jurisdiction over the crime. Nothing herein provided shall be
5 construed to prevent a court, having jurisdiction over a violation
6 relating to a criminal act from lawfully entering an order in accordance
7 with section 345.1 of this article where such order is not based upon
8 the count or counts of the petition alleging such criminal act.
9 § 3. Subdivision 3 of section 304.1 of the family court act, as
10 amended by section 59 of part WWW of chapter 59 of the laws of 2017, is
11 amended to read as follows:
12 3. The detention of a child under ten years of age in a secure
13 detention facility shall not be directed, nor shall the detention of a
14 child adjudicated solely for an act that would constitute a violation as
15 defined in subdivision three of section 10.00 of the penal law, be
16 directed under any of the provisions of this article.
17 § 4. Subdivision 13 of section 308.1 of the family court act, as added
18 by chapter 920 of the laws of 1982, is amended and a new subdivision 14
19 is added to read as follows:
20 13. The provisions of this section shall not apply where the petition
21 is an order of removal to the family court pursuant to article seven
22 hundred twenty-five of the criminal procedure law against a juvenile
23 offender as defined in subdivision eighteen of section 10.00 of the
24 penal law.
25 14. Notwithstanding subdivisions three, four and thirteen of this
26 section, the probation service may adjust a proceeding where the court
27 has referred a case to the probation service in accordance with section
28 320.6 of this article in conjunction with or subsequent to the issuance
29 of an order pursuant to subdivision one of section 345.1 of this article
30 where such order does not include a fact-finding for an act which would
31 constitute a juvenile offense, designated felony or offense listed in
32 subdivision four of this section. Where a proceeding has been referred
33 to the probation service in which an order issued pursuant to section
34 345.1 of this article consists solely of a violation as defined in
35 subdivision three of section 10.00 of the penal law committed by a juve-
36 nile sixteen years of age or, commencing on October first, two thousand
37 nineteen, seventeen years of age, the probation service shall adjust the
38 matter unless good cause is shown and is documented in its records.
39 § 5. Section 315.3 of the family court act is amended by adding a new
40 subdivision 4 to read as follows:
41 4. Where an order of fact-finding that includes solely a violation as
42 defined in subdivision three of section 10.00 of the penal law committed
43 by a juvenile sixteen years of age or, commencing on October first, two
44 thousand nineteen, seventeen years of age, has been entered pursuant to
45 section 345.1 of this article, there shall be a rebuttable presumption
46 that the court shall adjourn the case in contemplation of dismissal
47 pursuant to this section, refer the case to the probation service for
48 adjustment services pursuant to section 320.6 of this article or dismiss
49 the case pursuant to subdivision two of section 352.1 of this article.
50 § 6. Subdivision 2 of section 320.6 of the family court act, as
51 amended by chapter 310 of the laws of 2019, is amended to read as
52 follows:
53 2. At the initial appearance or at any subsequent appearance, the
54 court may refer a case to the probation service for adjustment services.
55 The probation service shall consider the views of the complainant and
56 the impact of the alleged act or acts of juvenile delinquency upon the
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1 complainant and upon the community in determining whether adjustment
2 under this section would be suitable. In the case of a designated felony
3 petition, the consent of the presentment agency shall be required to
4 refer a case to the probation service for adjustment services. Where an
5 order of fact-finding that includes solely a violation as defined in
6 subdivision three of section 10.00 of the penal law committed by a juve-
7 nile sixteen years of age or, commencing on October first, two thousand
8 nineteen, seventeen years of age, has been entered pursuant to section
9 345.1 of this article, there shall be a rebuttable presumption that the
10 court shall refer the case to the probation service for adjustment
11 services in accordance with this subdivision, dismiss the case pursuant
12 to subdivision two of section 352.1 of this article or adjourn the case
13 in contemplation of dismissal pursuant to section 315.3 of this article.
14 § 7. Section 345.1 of the family court act is amended by adding a new
15 subdivision 3 to read as follows:
16 3. Where an order of fact-finding that includes solely a violation as
17 defined in subdivision three of section 10.00 of the penal law committed
18 by a juvenile sixteen years of age or, commencing on October first, two
19 thousand nineteen, seventeen years of age, has been entered pursuant to
20 subdivision one of this section, there shall be a rebuttable presumption
21 that the court shall refer the case to the probation service for adjust-
22 ment services in accordance with section 320.6 of this article, dismiss
23 the case pursuant to subdivision two of section 352.1 of this article or
24 adjourn the case in contemplation of dismissal pursuant to section 315.3
25 of this article.
26 § 8. Subdivision 1 of section 350.1 of the family court act, as
27 amended by chapter 398 of the laws of 1983, is amended to read as
28 follows:
29 1. If the respondent is detained and has not been found to have
30 committed a designated felony act the dispositional hearing shall
31 commence not more than ten days after the entry of an order pursuant to
32 subdivision one of section 345.1 of this article, except as provided in
33 subdivision three of this section; provided, however, that if the
34 respondent has been found to have committed solely a violation as
35 defined in subdivision three of section 10.00 of the penal law, the
36 respondent shall not be detained pending disposition.
37 § 9. Subdivision 4 of section 352.2 of the family court act, as added
38 by section 56-b of part WWW of chapter 59 of the laws of 2017, is
39 amended to read as follows:
40 4. Where a youth receives a juvenile delinquency adjudication for
41 conduct committed when the youth was [age] sixteen years of age or
42 [older], commencing on October first, two thousand nineteen, seventeen
43 years of age, that would solely constitute a violation as defined in
44 subdivision three of section 10.00 of the penal law and if the presump-
45 tion pursuant to subdivision three of section 345.1 of this article has
46 been rebutted, the court shall have the power to enter an order of
47 disposition in accordance with [paragraphs] paragraph (a) [and (b)] of
48 subdivision one of this section. The court shall not order detention,
49 probation or placement of a youth solely adjudicated under this subdivi-
50 sion.
51 § 10. Subdivision 6 of section 360.3 of the family court act, as added
52 by chapter 920 of the laws of 1982, is amended to read as follows:
53 6. At the conclusion of the hearing the court may revoke, continue or
54 modify the order of probation or conditional discharge. If the court
55 revokes the order, it shall order a different disposition pursuant to
56 section 352.2 of this article provided, however, that if the court finds
A. 7706 4
1 a violation of an order of conditional discharge where the underlying
2 finding had been for an act solely constituting a violation as defined
3 in subdivision three of section 10.00 of the penal law, the court may
4 modify the conditions of the conditional discharge but may not order any
5 other disposition under section 352.2 of this article. If the court
6 continues the order of probation or conditional discharge, it shall
7 dismiss the petition of violation.
8 § 11. Section 375.2 of the family court act is amended by adding a new
9 subdivision 7 to read as follows:
10 7. Where an order of fact-finding has been issued pursuant to subdivi-
11 sion one of section 345.1 of this article that includes solely a
12 violation as defined in subdivision three of section 10.00 of the penal
13 law committed by a juvenile sixteen years of age or, commencing on Octo-
14 ber first, two thousand nineteen, seventeen years of age, the records
15 shall be sealed automatically at the expiration, as applicable, of a
16 successful period of an adjustment, adjournment in contemplation of
17 dismissal or conditional discharge.
18 § 12. Subdivision 1 of section 510.15 of the criminal procedure law,
19 as amended by section 36 of part WWW of chapter 59 of the laws of 2017,
20 is amended to read as follows:
21 1. When a principal who is under the age of sixteen is committed to
22 the custody of the sheriff the court must direct that the principal be
23 taken to and lodged in a place certified by the office of children and
24 family services as a juvenile detention facility for the reception of
25 children. When a principal who (a) commencing October first, two thou-
26 sand eighteen, is sixteen years of age; or (b) commencing October first,
27 two thousand nineteen, is sixteen or seventeen years of age, is commit-
28 ted to the custody of the sheriff, the court must direct that the prin-
29 cipal be taken to and lodged in a place certified by the office of chil-
30 dren and family services in conjunction with the state commission of
31 correction as a specialized secure juvenile detention facility for older
32 youth. Where such a direction is made the sheriff shall deliver the
33 principal in accordance therewith and such person shall although lodged
34 and cared for in a juvenile detention facility continue to be deemed to
35 be in the custody of the sheriff. No principal under the age specified
36 to whom the provisions of this section may apply shall be detained in
37 any prison, jail, lockup, or other place used for adults convicted of a
38 crime or under arrest and charged with the commission of a crime without
39 the approval of the office of children and family services which shall
40 consult with the commission of correction if the principal is sixteen
41 years of age or older in the case of each principal and the statement of
42 its reasons therefor; nor shall a principal under the age specified who
43 is charged solely with a violation as defined in subdivision three of
44 section 10.00 of the penal law be subject to detention. The sheriff
45 shall not be liable for any acts done to or by such principal resulting
46 from negligence in the detention of and care for such principal, when
47 the principal is not in the actual custody of the sheriff.
48 § 13. This act shall take effect immediately.
