S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  8505

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              May 26, 2009
                               ___________

Introduced  by M. of A. SCARBOROUGH, COOK -- Multi-Sponsored by -- M. of
  A. BRADLEY, COLTON, JOHN, TITONE, TOWNS -- (at request of  the  Office
  of Court Administration) -- read once and referred to the Committee on
  Children and Families

AN  ACT  to  amend  the  family  court act, in relation to adjudication,
  dispositional 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:

  Section 1. Subdivision 1 of section 315.3 of the family court act,  as
amended  by  chapter  237  of  the  laws  of 1991, is amended to read as
follows:
  1. Except where the petition alleges that the respondent has committed
a designated felony act, the court may at any time prior to the entering
of a finding under section 352.1 and with the consent of the  respondent
order  that the proceeding be "adjourned in contemplation of dismissal".
An adjournment in contemplation of dismissal is an  adjournment  of  the
proceeding,  for a period not to exceed six months, with a view to ulti-
mate dismissal of the petition in furtherance of justice.  Upon  issuing
such  an  order,  providing such terms and conditions as the court deems
appropriate, the court must release the respondent. The court may, as  a
condition  of  an  adjournment  in  contemplation of dismissal order, in
cases where the record indicates that the  consumption  of  alcohol  may
have  been  a  contributing factor, require the respondent to attend and
complete an alcohol awareness program established pursuant to [paragraph
six-a of subdivision (a) of] section [19.07] 19.25 of the mental hygiene
law. [Upon ex parte motion  by  the  presentment  agency,  or  upon  the
court's  own  motion, made at the time the order is issued or at] AT any
time during [its] THE duration OF  AN  ORDER  ISSUED  PURSUANT  TO  THIS
SECTION,  the court may restore the matter to the calendar IN ACCORDANCE
WITH SUBDIVISION  FOUR  OF  THIS  SECTION.  If  the  proceeding  is  not

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10373-01-9
              

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restored,  the  petition  is,  at the expiration of the order, deemed to
have been dismissed by the court in furtherance of justice.
  S  2. Section 315.3 if the family court act is amended by adding a new
subdivision 4 to read as follows:
  4. AN APPLICATION TO RESTORE THE MATTER TO THE CALENDAR IN  ACCORDANCE
WITH  SUBDIVISION ONE OF THIS SECTION SHALL BE IN THE FORM OF A VERIFIED
PETITION WHICH SHALL BE SERVED ON THE  RESPONDENT,  WHO  SHALL  HAVE  AN
OPPORTUNITY  TO  BE HEARD WITH RESPECT THERETO. THE PETITION SHALL STATE
THE FACTUAL BASIS FOR THE RESTORATION, INCLUDING THE CONDITION OR CONDI-
TIONS ALLEGED TO HAVE BEEN VIOLATED AND THE TIME, PLACE  AND  MANNER  IN
WHICH  SUCH VIOLATION OCCURRED. THE RESPONDENT IS ENTITLED TO COUNSEL AT
ALL STAGES OF A PROCEEDING UNDER  THIS  SECTION,  AND  THE  COURT  SHALL
ADVISE  THE  RESPONDENT  OF  SUCH RIGHT AT THE INITIAL APPEARANCE ON ANY
PETITION FILED HEREUNDER. UPON REQUEST, THE COURT SHALL GRANT A  REASON-
ABLE  ADJOURNMENT  TO THE RESPONDENT IN ORDER TO RESPOND TO THE PETITION
AND, IF THE FACTUAL  ALLEGATIONS  OF  THE  PETITION  ARE  CONTESTED,  TO
PREPARE  FOR  A  HEARING.  IF  THE  COURT DETERMINES THAT THE RESPONDENT
SHOULD BE DETAINED IN ACCORDANCE WITH THE CRITERIA IN SUBDIVISION  THREE
OF SECTION 320.5, THE COURT SHALL HEAR AND DETERMINE THE PETITION WITHIN
THREE  DAYS; PROVIDED, HOWEVER, THAT FOR GOOD CAUSE SHOWN, THE COURT MAY
ADJOURN THE MATTER FOR NOT MORE THAN THREE ADDITIONAL  DAYS.  IF,  AFTER
HEARING  THE  PETITION,  THE COURT FINDS THAT THE PRESENTMENT AGENCY HAS
DEMONSTRATED BY RELEVANT AND MATERIAL EVIDENCE THAT ONE OR  MORE  CONDI-
TIONS  OF  THE  ORDER  HAVE  BEEN VIOLATED, THE COURT SHALL STATE ON THE
RECORD THE REASONS FOR SUCH DETERMINATION, GRANT THE  PETITION,  RESTORE
THE  MATTER TO THE CALENDAR AND SCHEDULE THE PROCEEDING FOR A FACT-FIND-
ING HEARING OR DISPOSITIONAL HEARING, AS  APPLICABLE.  UPON  FILING  THE
PETITION,  THE  PERIOD  OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
SHALL BE INTERRUPTED. SUCH INTERRUPTION SHALL CONTINUE UNTIL  SUCH  TIME
AS  THE COURT DETERMINES THE PETITION. IF THE COURT DENIES THE PETITION,
THE PERIOD DURING WHICH THE PETITION WAS PENDING SHALL  BE  CREDITED  TO
THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL.
  S  3. Section 353.3 of the family court act is amended by adding a new
subdivision 11 to read as follows:
  11. WHERE THE RESPONDENT IS PLACED  PURSUANT  TO  SUBDIVISION  TWO  OR
THREE  OF  THIS  SECTION  AND  IS ABSENT FROM THE FACILITY OR AUTHORIZED
AGENCY WITHOUT THE CONSENT OF THE DIRECTOR OF THE  FACILITY  OR  AGENCY,
THE  ABSENCE  SHALL  INTERRUPT THE CALCULATION OF TIME OF SUCH PLACEMENT
AND SUCH INTERRUPTION SHALL CONTINUE UNTIL THE  CHILD'S  RETURN  TO  THE
FACILITY  OR AGENCY; PROVIDED, HOWEVER, THAT A TIMELY PERMANENCY HEARING
SHALL BE HELD FOR THE RESPONDENT, NOTWITHSTANDING SUCH INTERRUPTION. ANY
TIME SPENT IN DETENTION BETWEEN THE DATE OF SUCH ABSENCE  WITHOUT  LEAVE
AND  THE RETURN OF THE CHILD TO THE FACILITY OR AGENCY SHALL BE CREDITED
AGAINST THE TIME OF PLACEMENT IF THE DETENTION WAS DUE TO A SURRENDER OR
ARREST DUE TO THE ABSENCE, OR IF THE DETENTION WAS DUE TO AN ARREST THAT
DID NOT CULMINATE IN A PETITION, ADJUDICATION OR ADJUSTMENT.
  S 4. Subdivisions 2, 4 and 5 of section 360.2 of the family court act,
as added by chapter 920 of the laws of 1982,  are  amended  to  read  as
follows:
  2.  The  petition  must  be  verified  and subscribed by the probation
service or the appropriate presentment agency. Such petition must stipu-
late the condition or conditions of the order violated and a  reasonable
description  of  the  time,  place  and  manner  in  which the violation
occurred. Non-hearsay allegations OR ALLEGATIONS MADE  UPON  INFORMATION
AND  BELIEF  of  the  factual  part of the petition or of any supporting
depositions must establish, if true, every violation charged.

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  4. If a petition  is  filed  under  subdivision  one,  the  period  of
probation  as  prescribed  by  section 353.2 OR CONDITIONAL DISCHARGE AS
PRESCRIBED BY SECTION 353.1 shall be interrupted as of the date  of  the
filing  of  the petition. Such interruption shall continue until a final
determination  as to the petition has been made by the court pursuant to
a hearing held in accordance with section 360.3 or until  such  time  as
the respondent reaches the maximum age of acceptance into a division for
youth facility.
  5. If the court determines THAT there was no violation of probation OR
CONDITIONAL  DISCHARGE  by  the  respondent,  the period of interruption
shall be credited to the period of probation OR  CONDITIONAL  DISCHARGE,
AS APPLICABLE.
  S  5.  The  family court act is amended by adding a new section 743 to
read as follows:
  S 743. ACCEPTANCE OF AN ADMISSION. (A) BEFORE ACCEPTING AN  ADMISSION,
THE  COURT  SHALL  ADVISE  THE  RESPONDENT  OF  HIS  OR  HER  RIGHT TO A
FACT-FINDING HEARING. THE COURT SHALL ALSO ASCERTAIN THROUGH  ALLOCUTION
OF  THE  RESPONDENT  AND HIS OR HER PARENT OR PERSON LEGALLY RESPONSIBLE
FOR HIS OR HER CARE, IF PRESENT, THAT THE RESPONDENT:
  (I) COMMITTED THE ACT OR ACTS TO WHICH AN ADMISSION IS BEING ENTERED;
  (II) IS VOLUNTARILY WAIVING HIS OR HER RIGHT TO A  FACT-FINDING  HEAR-
ING; AND
  (III) IS AWARE OF THE POSSIBLE SPECIFIC DISPOSITIONAL ORDERS.
  THE PROVISIONS OF THIS SUBDIVISION SHALL NOT BE WAIVED.
  (B) UPON ACCEPTANCE OF AN ADMISSION, THE COURT SHALL STATE THE REASONS
FOR  ITS  DETERMINATION  AND SHALL ENTER A FACT-FINDING ORDER. THE COURT
SHALL SCHEDULE A DISPOSITIONAL HEARING IN  ACCORDANCE  WITH  SUBDIVISION
(B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS PART.
  S  6.  Section  776  of  the  family  court  act is amended to read as
follows:
  S 776. Failure to comply with terms and conditions of suspended  judg-
ment.   [If a] A respondent [is] brought before the court for failure to
comply with reasonable terms and conditions of [a] AN ORDER OF suspended
judgment [issued under this article and if,]  SHALL  BE  DEALT  WITH  IN
ACCORDANCE  WITH  SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS PART. IF,
after hearing, the court [is satisfied] DETERMINES  by  competent  proof
that  the respondent WITHOUT JUST CAUSE failed to comply with such terms
and conditions, the court may ADJOURN THE MATTER FOR A NEW DISPOSITIONAL
HEARING IN ACCORDANCE WITH SUBDIVISION  (B)  OR  (C)  OF  SECTION  SEVEN
HUNDRED  FORTY-NINE  OF  THIS ARTICLE. THE COURT MAY revoke the [suspen-
sion] ORDER of SUSPENDED judgment and proceed to  make  any  order  that
might have been made at the time judgment was suspended.
  S  7.  Section  779  of  the  family  court  act is amended to read as
follows:
  S 779. [Failure] JURISDICTION AND SUPERVISION OF RESPONDENT PLACED  ON
PROBATION;  FAILURE  to  comply  with terms of probation.   [If a] (A) A
RESPONDENT WHO IS PLACED ON PROBATION IN ACCORDANCE WITH  SECTION  SEVEN
HUNDRED  FIFTY-SEVEN OF THIS ARTICLE SHALL REMAIN UNDER THE LEGAL JURIS-
DICTION OF THE COURT PENDING EXPIRATION OR TERMINATION OF THE PERIOD  OF
PROBATION.
  (B)  THE  PROBATION  SERVICE SHALL SUPERVISE THE RESPONDENT DURING THE
PERIOD OF SUCH LEGAL JURISDICTION.
  (C) A respondent [is] brought before the court for failure  to  comply
with  reasonable  terms  and  conditions of an order of probation issued
under SECTION SEVEN HUNDRED FIFTY-SEVEN OF this article [and if,]  SHALL
BE DEALT WITH IN ACCORDANCE WITH SECTION SEVEN HUNDRED SEVENTY-NINE-A OF

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THIS  PART.  IF,  after  hearing PURSUANT TO SUCH SECTION, the court [is
satisfied] DETERMINES by competent proof  that  the  respondent  without
just  cause  failed  to comply with such terms and conditions, the court
may  ADJOURN  THE  MATTER  FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE
WITH SUBDIVISION (B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF  THIS
ARTICLE. THE COURT MAY revoke the order of probation and proceed to make
any  order  that might have been made at the time the order of probation
was entered.
  S 8. Section 779-a of the family court act, as amended by chapter  309
of the laws of 1996, is amended to read as follows:
  S  779-a.  [Declaration of delinquency concerning juvenile delinquents
and persons in need of supervision.] PETITION AND HEARING  ON  VIOLATION
OF  ORDER OF PROBATION OR SUSPENDED JUDGMENT. (A) If, at any time during
the period of [a disposition of] probation, OR  SUSPENDED  JUDGMENT  the
[court]  PETITIONER, PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY
has reasonable cause to believe  THAT  the  respondent  has  violated  a
condition  of the disposition, [it] THE PETITIONER, PROBATION SERVICE OR
APPROPRIATE PRESENTMENT AGENCY may [declare  the  respondent  delinquent
and]  file a [written declaration of delinquency.  Upon such filing, the
respondent shall be declared delinquent of his disposition of  probation
and such disposition shall be tolled. The] VIOLATION PETITION.
  (B)  THE  PETITION  MUST BE VERIFIED AND SUBSCRIBED BY THE PETITIONER,
PROBATION SERVICE OR THE APPROPRIATE PRESENTMENT  AGENCY.  THE  PETITION
MUST  SPECIFY  THE  CONDITION  OR CONDITIONS OF THE ORDER VIOLATED AND A
REASONABLE DESCRIPTION OF THE DATE, TIME, PLACE AND MANNER IN WHICH  THE
VIOLATION  OCCURRED.  NON-HEARSAY ALLEGATIONS OF THE FACTUAL PART OF THE
PETITION OR OF ANY SUPPORTING DEPOSITIONS MUST ESTABLISH, IF TRUE, EVERY
VIOLATION CHARGED.
  (C) UPON THE FILING OF A VIOLATION  PETITION,  THE  court  [then  must
promptly  take  reasonable and appropriate action] SHALL ISSUE A SUMMONS
OR WARRANT IN ACCORDANCE WITH SECTION SEVEN HUNDRED TWENTY-FIVE OF  THIS
ARTICLE  to cause the respondent to appear before [it for the purpose of
enabling] the court [to make a final determination with respect  to  the
alleged  delinquency]. [The] WHERE THE RESPONDENT IS ON PROBATION PURSU-
ANT TO SECTION SEVEN HUNDRED FIFTY-SEVEN OF THIS ARTICLE, THE  time  for
prompt court action shall not be construed against the probation service
when  the  respondent  has  absconded from probation supervision and the
respondent's whereabouts are unknown. The court must be notified prompt-
ly of the circumstances of any such probationers.
  (D) IF A PETITION IS FILED UNDER SUBDIVISION (A) OF THIS SECTION,  THE
PERIOD  OF  PROBATION  OR SUSPENDED JUDGMENT PRESCRIBED BY SECTION SEVEN
HUNDRED FIFTY-FIVE OR SEVEN HUNDRED FIFTY-SEVEN OF THIS ARTICLE SHALL BE
INTERRUPTED AS OF THE DATE OF THE FILING OF THE  PETITION.  SUCH  INTER-
RUPTION  SHALL  CONTINUE  UNTIL A FINAL DETERMINATION OF THE PETITION OR
UNTIL SUCH TIME AS THE RESPONDENT REACHES THE MAXIMUM AGE OF  ACCEPTANCE
INTO  PLACEMENT  WITH  THE COMMISSIONER OF SOCIAL SERVICES. IF THE COURT
DISMISSES THE VIOLATION PETITION, THE PERIOD OF  INTERRUPTION  SHALL  BE
CREDITED TO THE PERIOD OF PROBATION OR SUSPENDED JUDGMENT.
  (E)  (I)  THE  COURT MAY NOT REVOKE AN ORDER OF PROBATION OR SUSPENDED
JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT PROOF THAT THE RESPOND-
ENT HAS VIOLATED A CONDITION OF SUCH ORDER WITHOUT JUST CAUSE  AND  THAT
THE  RESPONDENT  HAS  HAD  AN OPPORTUNITY TO BE HEARD. THE RESPONDENT IS
ENTITLED TO A HEARING PROMPTLY  AFTER  A  VIOLATION  PETITION  HAS  BEEN
FILED.  THE  RESPONDENT  IS  ENTITLED  TO  COUNSEL  AT ALL STAGES OF THE
PROCEEDING AND  MAY  NOT  WAIVE  REPRESENTATION  BY  COUNSEL  EXCEPT  AS
PROVIDED IN SECTION TWO HUNDRED FORTY-NINE-A OF THIS ACT.

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  (II)  AT  THE  TIME OF THE RESPONDENT'S FIRST APPEARANCE FOLLOWING THE
FILING OF A VIOLATION PETITION, THE COURT MUST:
  (A)  ADVISE THE RESPONDENT OF THE CONTENTS OF THE PETITION AND FURNISH
A COPY TO THE RESPONDENT;
  (B) ADVISE THE RESPONDENT THAT HE OR SHE IS ENTITLED TO COUNSEL AT ALL
STAGES OF A PROCEEDING UNDER THIS SECTION AND APPOINT AN ATTORNEY PURSU-
ANT TO SECTION TWO HUNDRED FORTY-NINE OF THIS ACT IF  INDEPENDENT  LEGAL
REPRESENTATION  IS  NOT AVAILABLE TO THE RESPONDENT. IF PRACTICABLE, THE
COURT SHALL APPOINT THE SAME ATTORNEY WHO REPRESENTED THE RESPONDENT  IN
THE ORIGINAL PROCEEDINGS UNDER THIS ARTICLE;
  (C)  DETERMINE  WHETHER  THE RESPONDENT SHOULD BE RELEASED OR DETAINED
PURSUANT TO SECTION SEVEN HUNDRED TWENTY OF THIS ARTICLE; AND
  (D) ASK THE RESPONDENT WHETHER HE OR SHE WISHES TO MAKE ANY  STATEMENT
WITH  RESPECT TO THE VIOLATION. IF THE RESPONDENT MAKES A STATEMENT, THE
COURT MAY ACCEPT IT AND  BASE  ITS  DECISION  UPON  THE  STATEMENT.  THE
PROVISIONS  OF  SECTION  SEVEN HUNDRED FORTY-THREE OF THIS ARTICLE SHALL
APPLY IN DETERMINING WHETHER A STATEMENT  SHOULD  BE  ACCEPTED.  IF  THE
COURT DOES NOT ACCEPT THE STATEMENT OR IF THE RESPONDENT DOES NOT MAKE A
STATEMENT, THE COURT SHALL CONDUCT A HEARING.
  (III)  UPON REQUEST, THE COURT SHALL GRANT A REASONABLE ADJOURNMENT TO
THE RESPONDENT TO PREPARE FOR THE HEARING.
  (IV) AT THE HEARING, THE COURT MAY RECEIVE ANY RELEVANT, COMPETENT AND
MATERIAL EVIDENCE. THE RESPONDENT MAY CROSS-EXAMINE WITNESSES AND  PRES-
ENT  EVIDENCE  ON HIS OR HER OWN BEHALF.  THE COURT'S DETERMINATION MUST
BE BASED UPON COMPETENT EVIDENCE.
  (V) AT THE CONCLUSION OF THE HEARING, THE COURT MAY ADJOURN THE MATTER
FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE WITH  SUBDIVISION  (B)  OR
(C)  OF  SECTION SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. THE COURT MAY
REVOKE, CONTINUE OR MODIFY THE ORDER OF PROBATION OR SUSPENDED JUDGMENT.
IF THE COURT REVOKES THE ORDER, IT SHALL ORDER A  DIFFERENT  DISPOSITION
PURSUANT  TO SUBDIVISION ONE OF SECTION SEVEN HUNDRED FIFTY-FOUR OF THIS
ARTICLE AND SHALL MAKE FINDINGS IN ACCORDANCE WITH  SUBDIVISION  TWO  OF
SUCH SECTION. IF THE COURT CONTINUES THE ORDER OF PROBATION OR SUSPENDED
JUDGMENT, IT SHALL DISMISS THE PETITION OF VIOLATION.
  S  9.  This  act shall take effect on the ninetieth day after it shall
have become a law and shall apply to orders of  adjournment  in  contem-
plation  of  dismissal issued and petitions for violations of probation,
conditional discharge and suspended judgment  filed  on  or  after  such
effective date.