S04980 Summary:

BILL NOS04980B
 
SAME ASSAME AS A06982-B
 
SPONSORBAILEY
 
COSPNSRBENJAMIN, HOYLMAN, JACKSON, MONTGOMERY, RIVERA, SALAZAR, SEPULVEDA, STAVISKY
 
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 into custody.
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S04980 Actions:

BILL NOS04980B
 
04/03/2019REFERRED TO CHILDREN AND FAMILIES
05/07/20191ST REPORT CAL.628
05/08/20192ND REPORT CAL.
05/13/2019ADVANCED TO THIRD READING
06/18/2019AMENDED ON THIRD READING (T) 4980A
06/20/2019COMMITTED TO RULES
01/08/2020REFERRED TO CHILDREN AND FAMILIES
07/09/2020AMEND AND RECOMMIT TO CHILDREN AND FAMILIES
07/09/2020PRINT NUMBER 4980B
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S04980 Committee Votes:

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S04980 Floor Votes:

There are no votes for this bill in this legislative session.
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S04980 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         4980--B
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                      April 3, 2019
                                       ___________
 
        Introduced  by Sens. BAILEY, HOYLMAN, JACKSON, MONTGOMERY, RIVERA, SALA-
          ZAR, SEPULVEDA, STAVISKY -- read twice and ordered printed,  and  when
          printed  to  be committed to the Committee on Children and Families --
          reported favorably from said committee, ordered to  first  and  second
          report,  ordered  to  a  third reading, amended and ordered reprinted,
          retaining its place in the order of third reading  --  recommitted  to
          the  Committee on Children and Families in accordance with Senate Rule
          6, sec. 8 -- committee discharged, bill amended, ordered reprinted  as
          amended and recommitted to said committee
 
        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
    17  care]  such person upon the issuance in accordance with section 307.1 of
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10989-03-0

        S. 4980--B                          2
 
     1  a family court appearance ticket to the child and the  person  to  whose
     2  custody the child is released; or
     3    §  3.  Paragraph  (b)  of subdivision 4 of section 305.2 of the family
     4  court act, as amended by section 63 of part WWW of  chapter  59  of  the
     5  laws of 2017, is amended to read as follows:
     6    (b)  when  the officer does not reasonably believe the parent or other
     7  person legally responsible for the child's  care  will  appear  for  the
     8  child,  forthwith and with all reasonable speed take the child directly,
     9  and without his or her first being taken to the police station house, to
    10  the family court located in the county in which the act occasioning  the
    11  taking  into  custody allegedly was committed, or, when the family court
    12  is not in session, to the most accessible magistrate, if any, designated
    13  by the appellate division of the supreme court in the applicable depart-
    14  ment to conduct a hearing under section 307.4 [of this part, unless  the
    15  officer  determines that it is necessary to question the child, in which
    16  case he or she may take the child to a facility designated by the  chief
    17  administrator  of  the courts as a suitable place for the questioning of
    18  children or, upon the consent  of  a  parent  or  other  person  legally
    19  responsible  for  the  care  of  the child, to the child's residence and
    20  there question him or her for a reasonable period of time]; or
    21    § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
    22  court  act,  as amended by section 3 of part G of chapter 58 of the laws
    23  of 2010, is amended to read as follows:
    24    (c) when the officer does not release the child pursuant to  paragraph
    25  (a)  of  this  subdivision,  or  take  the child to family court or to a
    26  magistrate pursuant to paragraph (b) of this subdivision, take the child
    27  to a place certified by the office of children and family services as  a
    28  juvenile detention facility for the reception of children; or
    29    §  5.  Subdivision  5  of  section  305.2  of the family court act, as
    30  amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
    31  follows:
    32    5.  If  such  child has allegedly committed a designated felony act as
    33  defined in subdivision eight of section 301.2, and the family  court  in
    34  the  county  is  in  session, the officer shall forthwith take the child
    35  directly to such family court, unless the officer takes the child  to  a
    36  facility  for  questioning in accordance with [paragraph (b) of subdivi-
    37  sion four. If such child has not allegedly committed a designated felony
    38  act and such family court is in session, the officer shall either forth-
    39  with take the child directly to such family court,  unless  the  officer
    40  takes  the  child to a facility for questioning in accordance with para-
    41  graph (b) of subdivision four or release the child  in  accordance  with
    42  paragraph (a) of subdivision four] subdivision seven.
    43    §  6. Subdivision 6 of section 305.2 of the family court act, as added
    44  by chapter 920 of the laws of 1982, is amended to read as follows:
    45    6. [In all other cases] If such child has not  allegedly  committed  a
    46  designated  felony act, and in the absence of special circumstances, the
    47  officer shall release the child in  accordance  with  paragraph  (a)  of
    48  subdivision four.
    49    § 7. Subdivisions 7 and 8 of section 305.2 of the family court act, as
    50  amended by chapter 398 of the laws of 1983, are amended and a new subdi-
    51  vision 10 is added to read as follows:
    52    7.   If the officer determines that questioning of the child is neces-
    53  sary prior to taking action authorized by subdivision four or five,  the
    54  officer  may take the child to a facility designated by the chief admin-
    55  istrator of the courts as a suitable place for the questioning of  chil-
    56  dren  or, upon the consent of a parent or other person legally responsi-

        S. 4980--B                          3
 
     1  ble for the care of the child,  to  the  child's  residence  and  there,
     2  subject  to  the  requirements of subdivision eight, question him or her
     3  for a reasonable period of time. Questioning is necessary only when  the
     4  officer  reasonably  determines  that the child's life or health, or the
     5  life or health of another individual, is in imminent danger and that the
     6  child may have information that  would  assist  the  officer  in  taking
     7  protective action.
     8    8.  A  child  shall  not be questioned pursuant to this section unless
     9  [he] or until:
    10    (a) the child and a person required to be notified pursuant to  subdi-
    11  vision three if present, have been advised:
    12    [(a)] (i) of the child's right to remain silent;
    13    [(b)]  (ii)  that  the  statements  made by the child may be used in a
    14  court of law;
    15    [(c)] (iii) of the child's right to have an attorney present  at  such
    16  questioning; and
    17    [(d)]  (iv)  of the child's right to have an attorney provided for him
    18  or her without charge if he or she is indigent; and
    19    (b) the child has consulted with legal counsel  in  person,  by  tele-
    20  phone, or by video conference. This consultation may not be waived.
    21    [8.]  9. In determining the suitability of questioning and determining
    22  the reasonable period of time for questioning such a child, the  child's
    23  age,  the  presence  or  absence  of his or her parents or other persons
    24  legally responsible for his or her care  and  notification  pursuant  to
    25  subdivision three shall be included among relevant considerations.
    26    10. In addition to statements that must be suppressed as involuntarily
    27  made within the definition in subdivision two of section 344.2, a state-
    28  ment  shall  be  suppressed: when the child has not consulted with legal
    29  counsel as required by paragraph (b) of subdivision eight; when a person
    30  notified pursuant to subdivision three, if present, has not been advised
    31  of and voluntarily waived the rights  delineated  in  paragraph  (a)  of
    32  subdivision  eight;  or when the questioning of the child was not neces-
    33  sary within the definition in subdivision seven.
    34    § 8. Section 724 of the family court  act,  the  section  heading  and
    35  subdivisions  (b) and (c) as amended by chapter 843 of the laws of 1980,
    36  subdivision (a) as amended by chapter 920 of the  laws  of  1982,  para-
    37  graphs  (i),  (ii), and (iv) of subdivision (b), paragraphs (i) and (ii)
    38  as amended and paragraph (iv) as added by section 4 of part E of chapter
    39  57 of the laws of 2005, paragraph (iii) of subdivision (b) as amended by
    40  section 7 of part M of chapter 56 of the laws of 2017,  and  subdivision
    41  (d)  as  added by chapter 809 of the laws of 1963, is amended to read as
    42  follows:
    43    § 724. Duties of police officer or peace  officer  after  taking  into
    44  custody  or  on  delivery by private person. (a) If a peace officer or a
    45  police officer takes into custody or if a person  is  delivered  to  him
    46  under section seven hundred twenty-three, the officer shall immediately,
    47  before  transporting  the child to any other location, notify the parent
    48  or other person legally responsible for his care,  or  the  person  with
    49  whom he is domiciled, that he has been taken into custody.
    50    (b)  After  making every reasonable effort to give notice under [para-
    51  graph] subdivision (a) of this section, the officer shall
    52    (i) when the officer reasonably believes such parent or  other  person
    53  legally  responsible for the child's care will appear, take the child to
    54  his or her home, the police station house, or  another  location  agreed
    55  upon  with  the  parent  or  person legally responsible, and release the
    56  youth to the custody of [his or her parent or other] such person [legal-

        S. 4980--B                          4

     1  ly responsible for his or her care] upon the  written  promise,  without
     2  security,  of  the person to whose custody the youth is released that he
     3  or she will produce the youth before the lead agency designated pursuant
     4  to section seven hundred thirty-five of this article in that county at a
     5  time and place specified in writing; or
     6    (ii)  when the officer reasonably believes such parent or other person
     7  legally responsible for the child's care  will  appear  for  the  child,
     8  forthwith  and  with  all  reasonable speed take the youth directly, and
     9  without first being taken to the police station house, to the designated
    10  lead agency located in the county  in  which  the  act  occasioning  the
    11  taking  into  custody allegedly was done[, unless the officer determines
    12  that it is necessary to question the youth, in which case he or she  may
    13  take  the  youth  to a facility designated by the chief administrator of
    14  the courts as a suitable place for the questioning of youth or, upon the
    15  consent of a parent or other person legally responsible for the care  of
    16  the  youth, to the youth's residence and there question him or her for a
    17  reasonable period of time]; or
    18    (iii) take a youth in need of crisis intervention or respite  services
    19  to  a  runaway  and  homeless  youth  crisis  services  program or other
    20  approved respite or crisis program; or
    21    (iv) take the youth directly to the family court located in the county
    22  in which the act occasioning the taking into custody was allegedly done,
    23  provided that the officer affirms on the record that he or she attempted
    24  to exercise the options identified in paragraphs (i), (ii) and (iii)  of
    25  this  subdivision, was unable to exercise these options, and the reasons
    26  therefor.
    27    (c) In the absence of special circumstances, the officer shall release
    28  the child in accord with paragraph [(b)] (i) of subdivision (b) of  this
    29  section.
    30    (d)  If the officer determines that questioning of the child is neces-
    31  sary prior to taking  action  authorized  by  subdivision  (b)  of  this
    32  section,  the officer may take the child to a facility designated by the
    33  chief administrator of the courts as a suitable place for the  question-
    34  ing of children or, upon the consent of a parent or other person legally
    35  responsible  for  the  care  of  the child, to the child's residence and
    36  there, subject to the requirements of subdivision (e) of  this  section,
    37  question  him  or  her  for a reasonable period of time.  Questioning is
    38  necessary only when the officer reasonably determines that  the  child's
    39  life or health, or the life or health of another individual, is in immi-
    40  nent  danger  and  that the child may have information that would assist
    41  the officer in taking protective action.
    42    (e) In determining the suitability of questioning and determining what
    43  is a "reasonable period of time" for questioning a  child,  the  child's
    44  age [and], the presence or absence of his parents or other person legal-
    45  ly responsible for his care and notification pursuant to subdivision (a)
    46  of this section shall be included among the relevant considerations.
    47    (f)  No statement made to a peace officer or a police officer prior to
    48  the commencement of a fact-finding hearing may be admitted into evidence
    49  at a fact-finding hearing.
    50    § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
    51  amended by section 20 of part WWW of chapter 59 of the laws of 2017,  is
    52  amended to read as follows:
    53    6.  (a)  Upon  arresting  a  juvenile  offender or a person sixteen or
    54  commencing October first, two thousand nineteen, seventeen years of  age
    55  without  a  warrant, the police officer shall immediately, before trans-
    56  porting the child to the police station  house,  notify  the  parent  or

        S. 4980--B                          5
 
     1  other  person legally responsible for his or her care or the person with
     2  whom he or she is domiciled, that such juvenile offender or  person  has
     3  been  arrested,  and  the  location  of the facility where he or she [is
     4  being] will be detained.
     5    (b) If the officer determines that it is necessary to question a juve-
     6  nile  offender  or  such  person,  the officer must take him or her to a
     7  facility designated by the chief administrator of the courts as a  suit-
     8  able  place  for  the  questioning of children or, upon the consent of a
     9  parent or other person legally responsible for the care of the  juvenile
    10  or  such  person,  to  his  or  her  residence and there, subject to the
    11  requirements of paragraph (c) of this subdivision, question him  or  her
    12  for a reasonable period of time.  Questioning is necessary only when the
    13  officer  reasonably  determined  that the child's life or health, or the
    14  life or health of another individual, is in imminent danger and that the
    15  child may have information that  would  assist  the  officer  in  taking
    16  protective action.
    17    (c)  A juvenile offender or such person shall not be questioned pursu-
    18  ant to this section unless or until:
    19    (i) he or she and a person required to be notified pursuant  to  para-
    20  graph (a) of this subdivision, if present, have been advised:
    21    [(a)]  (A) of the juvenile offender's or such person's right to remain
    22  silent;
    23    [(b)] (B) that the statements made by him or her  may  be  used  in  a
    24  court of law;
    25    [(c)]  (C)  of  his  or  her right to have an attorney present at such
    26  questioning; and
    27    [(d)] (D) of his or her right to have an attorney provided for him  or
    28  her without charge if he or she is unable to afford counsel[.]; and
    29    (ii) the juvenile offender or such person has consulted with an attor-
    30  ney  in  person, by telephone, or by video conference. This consultation
    31  may not be waived.
    32    (d) In determining the suitability of questioning and determining  the
    33  reasonable  period  of  time for questioning such a juvenile offender or
    34  person, his or her age, the presence or absence of his or her parents or
    35  other persons legally responsible for his or her care  and  notification
    36  pursuant  to  paragraph  (a) of this subdivision shall be included among
    37  relevant considerations.
    38    (e) In addition to statements that must be suppressed as involuntarily
    39  made within the definition in subdivision two of section 60.45  of  this
    40  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    41  consulted with an attorney as required by paragraph (c) of this subdivi-
    42  sion; when a person notified pursuant to paragraph (a) of this  subdivi-
    43  sion,  if  present,  has  not been advised of and voluntarily waived the
    44  rights delineated in paragraph (c) of  this  subdivision;  or  when  the
    45  questioning  of  the  child  was  not necessary within the definition in
    46  paragraph (b) of this subdivision.
    47    § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
    48  as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
    49  is amended to read as follows:
    50    5. (a) Upon arresting a juvenile  offender  or  a  person  sixteen  or
    51  commencing  October first, two thousand nineteen, seventeen years of age
    52  without a warrant, the peace officer shall  immediately,  before  trans-
    53  porting  the  child  to  the  police station house, notify the parent or
    54  other person legally responsible for his or her care or the person  with
    55  whom  he  or she is domiciled, that such juvenile offender or person has

        S. 4980--B                          6
 
     1  been arrested, and the location of the facility  where  he  or  she  [is
     2  being] will be detained.
     3    (b) If the officer determines that it is necessary to question a juve-
     4  nile  offender  or  such  person,  the officer must take him or her to a
     5  facility designated by the chief administrator of the courts as a  suit-
     6  able  place  for  the  questioning of children or, upon the consent of a
     7  parent or other person legally responsible for the care  of  a  juvenile
     8  offender  or  such person, to his or her residence and there, subject to
     9  the requirements of paragraph (c) of this subdivision, question  him  or
    10  her for a reasonable period of time.  Questioning is necessary only when
    11  the  officer  reasonably  determines that the child's life or health, or
    12  the life or health of another individual, is in imminent danger and that
    13  the child may have information that would assist the officer  in  taking
    14  protective action.
    15    (c)  A juvenile offender or such person shall not be questioned pursu-
    16  ant to this section unless or until:
    17    (i) the juvenile offender or such person and a person required  to  be
    18  notified pursuant to paragraph (a) of this subdivision, if present, have
    19  been advised:
    20    [(a)] (A) of his or her right to remain silent;
    21    [(b)]  (B)  that  the statements made by the juvenile offender or such
    22  person may be used in a court of law;
    23    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    24  questioning; and
    25    [(d)]  (D) of his or her right to have an attorney provided for him or
    26  her without charge if he or she is unable to afford counsel[.]; and
    27    (ii) the juvenile offender or such person has consulted with an attor-
    28  ney in person, by telephone or by video  conference.  This  consultation
    29  may not be waived.
    30    (d)  In determining the suitability of questioning and determining the
    31  reasonable period of time for questioning such a  juvenile  offender  or
    32  such  person,  his  or  her  age,  the presence or absence of his or her
    33  parents or other persons legally responsible for his  or  her  care  and
    34  notification  pursuant  to  paragraph  (a)  of this subdivision shall be
    35  included among relevant considerations.
    36    (e) In addition to statements that must be suppressed as involuntarily
    37  made within the definition in subdivision two of section 60.45  of  this
    38  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    39  consulted with an attorney as required by paragraph (c) of this subdivi-
    40  sion; when a person notified pursuant to paragraph (a) of this  subdivi-
    41  sion,  if  present,  has  not been advised of and voluntarily waived the
    42  rights delineated in paragraph (c) of  this  subdivision;  or  when  the
    43  questioning  of  the  child  was  not necessary within the definition in
    44  paragraph (b) of this subdivision.
    45    § 11. Subdivision 5 of section 140.40 of the criminal  procedure  law,
    46  as  amended by section 24 of part WWW of chapter 59 of the laws of 2017,
    47  is amended to read as follows:
    48    5. (a) If a police officer takes an arrested juvenile  offender  or  a
    49  person  sixteen  or  commencing  October  first, two [thosuand] thousand
    50  nineteen, seventeen years of age into custody, the police officer  shall
    51  immediately,  before  transporting the child to the police station house
    52  notify the parent or other person legally responsible  for  his  or  her
    53  care  or the person with whom he or she is domiciled, that such juvenile
    54  offender or person has been arrested, and the location of  the  facility
    55  where he or she [is being] will be detained.

        S. 4980--B                          7
 
     1    (b) If the officer determines that it is necessary to question a juve-
     2  nile  offender  or  such  person  the  officer must take him or her to a
     3  facility designated by the chief administrator of the courts as a  suit-
     4  able  place  for  the  questioning of children or, upon the consent of a
     5  parent  or other person legally responsible for the care of the juvenile
     6  offender or such person, to his or her residence and there,  subject  to
     7  the  requirements  of paragraph (c) of this subdivision, question him or
     8  her for a reasonable period of time.  Questioning is necessary only when
     9  the officer reasonably determines that the child's life  or  health,  or
    10  the  life or the health of another individual, is in imminent danger and
    11  that the child may have information that would  assist  the  officer  in
    12  taking protective action.
    13    (c)  A juvenile offender or such person shall not be questioned pursu-
    14  ant to this section unless or until:
    15    (i) he or she and a person required to be notified pursuant  to  para-
    16  graph (a) of this subdivision, if present, have been advised:
    17    [(a)] (A) of his or her right to remain silent;
    18    [(b)]  (B)  that  the statements made by the juvenile offender or such
    19  person may be used in a court of law;
    20    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    21  questioning; and
    22    [(d)]  (D) of his or her right to have an attorney provided for him or
    23  her without charge if he or she is unable to afford counsel.
    24    (d) In determining the suitability of questioning and determining  the
    25  reasonable  period  of  time for questioning such a juvenile offender or
    26  such person, his or her age, the presence  or  absence  of  his  or  her
    27  parents  or  other  persons  legally responsible for his or her care and
    28  notification pursuant to paragraph (a)  of  this  subdivision  shall  be
    29  included among relevant considerations.
    30    (e) In addition to statements that must be suppressed as involuntarily
    31  made  within  the definition in subdivision two of section 60.45 of this
    32  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    33  consulted with an attorney as required by paragraph (c) of this subdivi-
    34  sion;  when a person notified pursuant to paragraph (a) of this subdivi-
    35  sion, if present, has not been advised of  and  voluntarily  waived  the
    36  rights  delineated  in  paragraph  (c)  of this subdivision; or when the
    37  questioning of the child was not  necessary  within  the  definition  in
    38  paragraph (b) of this subdivision.
    39    § 12. This act shall take effect April 1, 2021.
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