NY State Senate Bill 2009-S3876

Senate Bill S3876

2009-2010 Legislative Session

Relates to dispositional and violation procedures in juvenile delinquency cases and cases concerning persons in need

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 08, 2010	reported and committed to codes
Jan 06, 2010	referred to children and families
Apr 02, 2009	referred to children and families

Votes

- Jun 8, 2010 - Children And Families Committee Vote
  S3876
  
  6
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: Jun 8, 2010
      
      aye (6)
      
      Duane
      
      Huntley
      
      Marcellino
      
      McDonald
      
      Montgomery
      
      Schneiderman

2009-S3876 (ACTIVE) - Details

See Assembly Version of this Bill:: A8505
Current Committee:: Senate Codes
Law Section:: Family Court Act
Laws Affected:: Amd §§315.3, 353.3, 360.2, 776, 779 & 779-a, add §743, Fam Ct Act

2009-S3876 (ACTIVE) - Summary

Relates to dispositional and violation procedures in juvenile delinquency cases and cases concerning persons in need.

2009-S3876 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S3876

 TITLE OF BILL :
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


This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

Significant gaps exist in the procedural framework governing juvenile
delinquency (JD) and persons in need of supervision (PINS) cases, each
in the area of violations of court orders. Further, a procedural gap
is evident in the PINS statutory framework, as has repeatedly been
identified by appellate courts. Accordingly, this measure would amend
the Family Court Act to eliminate these gaps by clarifying applicable
procedures in cases of alleged violations of adjournments in
contemplation of dismissal (ACD's), orders of probation, orders of
placement and orders of conditional discharge in JD proceedings and
with respect to allocutions for admissions and violations of suspended
judgments and orders of probation in PINS cases.

First, Article 3 of the Family Court Act is silent as to the
procedures to be followed and the threshold showing required to

establish a violation of the conditions of an ACD sufficient to
restore the case to the calendar. It is likewise silent regarding
whether an ACD violation should trigger either a fact-finding or
dispositional hearing.Subdivision one of section 315.3 of the Family
Court Act simply provides that " u pon ex parte motion by the
presentment agency, or upon the court's own motion, made at the time
the order is issued or at any time during its duration, the Family
Court may restore the matter to the calendar."

In Matter of Edwin L., 88 N.Y.2d 593 (1996), the Court of Appeals
declined to incorporate a specific hearing requirement for violations
of conditions in cases adjourned in contemplation of dismissal into
Article 3 of the Family Court Act in the absence of explicit
legislation. The Court stated:

We hold that the requirements of due process are satisfied when a
Family Court determines, after conducting an inquiry into the
allegations of the violation petition, and providing the juvenile with
an opportunity to respond to those allegations, that there is a
legitimate basis for concluding that the juvenile has violated a
condition of an ACD order and states the reasons, on the record, for
reaching that determination.

88 N.Y.2d, at 603. Noting that the scope of the hearing will vary
according to the circumstances of particular cases, the Court left a
determination of the degree of formality required to the discretion of
the Family Court. It did, however, assume, in the absence of statutory
guidance, that a violation petition would be filed, providing notice
to the juvenile of the violation; that the juvenile would be given an
opportunity to respond to the petition with or without a hearing; and
that hearsay evidence would be admissible to establish the allegations
of the petition.

This measure codifies these elements of the holding in Matter of Edwin
L. and provides needed amplification of the applicable procedures. It
requires a verified petition, which must be served on the respondent
juvenile, for restoration to the calendar of a JD matter adjourned in
contemplation of dismissal and provides the respondent with an
opportunity to respond to the motion. Filling a gap in the Family
Court Act, this measure authorizes Family Court to order that a
respondent juvenile be detained and provides for an expedited
determination of the violation petition in such cases, consistent with
the criteria and .time frames applicable in other detention cases.
Consistent with Matter of R.D., 13 Misc.3d 1224(A) (Fam. Ct., Nassau
Co., 2006), the measure codifies the direction in Matter of Edwin L.
that hearsay evidence be admissible. If the petition to restore the
matter to the calendar is sustained, the case would be set down for a
factfinding or dispositional hearing, depending upon whether the
matter were adjourned in contemplation of dismissal before or after
entry of a fact-finding order. Similar to the provision regarding
probation violations Family Court Act §§360.2(4), (5) , this measure
further provides that the period of the ACD would be tolled during the
pendency of the petition, and that, if the petition to restore the
matter to the calendar is dismissed, the period during which the
petition was pending would be credited to the period of the
adjournment in contemplation of dismissal.

Second, this measure remedies a failure of the provisions regarding
violations of orders of probation to specify the type of support for
the violation petition allegations. Because violations often concern a
juvenile's compliance or lack of compliance with orders to cooperate
with particular programs, it should be possible for probation
violation petitions to be based upon allegations supported by letters,
reports and other documents from the programs in question. This
measure thus specifies that petition allegations may include hearsay,
although the current requirement for evidence of proof of the petition
to be relevant, material and competent would be retained.

Third, this measure effectuates the Legislature's apparent intention
to provide identical provisions to toll orders of probation and
conditional discharge while violation proceedings are pending. While
sections 360.2 and 360.3 of the Family Court Act articulate a
procedure governing violations of both probation and conditional
discharge, references to conditional discharge appear to have been
inadvertently omitted from two subdivisions of those sections. In
Matter of Donald MM, 231 A.D.2d 810 (3rd Dept., 1996), Ive. app.
denied, 89 N.Y.2d 804 (1996), the Appellate Division, Third
Department, read into section 360.2(4) a requirement that the period
of a conditional discharge be tolled during the pendency of a
violation petition, as in probation violation cases. The Court held
that omission of the requirement was unintentional, as "it is apparent
from a reading of all provisions of this statute that the Legislature
did not intend for probationary periods and conditional discharges to
be treated differently." The instant measure incorporates this tolling
requirement into subdivision four of section 360.2 of the Family Court
Act. Using the same rationale, it remedies a similar gap in
subdivision five of the same section, which require s credit for the
period of pendency of a violation petition to be given in cases in
which the violation has not been sustained.

Fourth, this measure remedies an anomaly in the juvenile delinquency
placement statute. While placement with the New York State Office of
Children and Family Services is tolled when a child is absent without
leave and a warrant is outstanding  Exec. Law §510-b(7) , no
comparable provision exists with respect to placement of a child with
a county Department of Social Services. Placements with DSS are often
for the very same facilities as those with NYS OCFS - residential
treatment facilities operated by authorized agencies under contract.
Disparate treatment of placed delinquent youth should not arise out of
the happenstance of who the agency contracts with for payment of the
child's placement. This measure, therefore, would incorporate
Executive Law §510b(7) into Article 3 of the Family Court Act and
would apply it both to placements with local Departments of Social
Services and with the NYS Office of Children and Family Services.


With respect to PINS proceedings, this measure also adds a new section
743 to the Family Court Act, establishing a judicial allocution
procedure for accepting admissions in PINS cases analogous to the
allocution required in juvenile delinquency cases  Family Court Act
§321.3 . The measure would require Family Court, before accepting an
admission in a PINS case, to ascertain that the juvenile respondent
committed the act or acts to which an admission is being entered, is
voluntarily waiving his or her right to a hearing and is aware of the
dispositional alternatives that may be ordered as a result of the
adjudication that is the likely consequence of the admission.

The absence of an explicit allocution procedure in the PINS statute
has generated extensive appellate litigation. In Matter of Tabitha
L.L., 87 N.Y.2d 1009 (1996), the Court of Appeals held that it would
be inappropriate to incorporate section 321.3 of the Family Court Act
into Article 7 in the absence of specific legislative authorization.
It did not determine whether an allocution procedure is
constitutionally required, since that issue was not preserved for
appellate review. In a subsequent case, Matter of Tabitha E, 271 AD.2d
719,720 (3rd Dept., 2000), however, the Appellate Division, Third
Department, held it reversible error for Family Court to accept an
admission in a PINS proceeding without first advising the respondent
of her right to remain silent. Accord, Matter of Ashley R., 42 AD.3d
689 (3d Dept., 2007); Matter of Marquis 5.,26 AD.3d 757 (4th Dept.,
2006); Matter of Steven Z, 19 AD.3d 783 (3d Dept., 2005); Matter of
Matthew RR, 9 AD.3d 514 (3d Dept., 2004); Matter of Nichole A., 300
AD.2d 947 (3rd Dept., 2002); Matter of Jody W, 295 A.D.2d 659 (3rd
Dept., 2002); Matter of Shaun V, 288 A.D.2d 708 (3rd Dept., 2001). We
believe that considerations of due process - equally compelling in
PINS as in JD cases - militate in favor of equivalent protections and,
therefore, we urge the Legislature to enact a provision for PINS cases
comparable to the allocution requirement applicable to juvenile
delinquency proceedings.

The last two amendments to the PINS statutes in this measure would
delineate procedures for violations of orders of suspended judgment
and violations of probation, drawing upon existing juvenile
delinquency procedures. See Family Court Act §.360.2, 360.3.
Violations of both orders of probation and suspended judgment would
require the filing of a verified petition, a hearing at which the
juvenile is represented by counsel and a determination by competent
proof that the juvenile committed the violation charged without just
cause.  Periods of dispositions of suspended judgment and probation
would betolled during the pendency of the violation petition. The
juvenile would have to be advised of his or her rights. See, e.g.,
Matter of Jessica GG., 19 A.D. 3d 765 (3d Dept., 2005); Matter of
Ashley A., 296 A.D.2d 627 (3rd Dept., 2002).

Upon finding a violation, Family Court would be authorized to adjourn
the matter for anew dispositional hearing in accordance with
subdivision (b) or (c) of section 749 of the Family Court Act or, at
minimum, provide the juvenile with an opportunity to present evidence.
See Matter of Casey W, 3 A.D. 3d 785 (3d Dept., 2004); Matter of
Josiah RR,277 A.D.2d 654(3rd Dept., 2000). The Court could revoke,
continue or modify the order of probation or suspended judgment. If
the order is revoked, the Court would be required to order a different
dispositional alternative enumerated in section 754(a), to state the
reasons for its determination and to make the findings required by
section 754(b) of the Family Court Act. See Matter of Nathaniel JJ,
265 A.D.2d 660 (3rd Dept., 1999), after remittitur, 270 A.D.2d 783
(3rd Dept., 2000) (PINS probation violation matter remanded twice for
specific findings, first with respect to the reasons for the
disposition and second as to the 16-year old respondent's needs, if
any, for independent living services). In matters such as Nathaniel
JJ, in which the juvenile was placed pursuant to section 756 of the
Family Court Act, these findings would be mandated as well by the
federal and state Adoption and Safe Families Acts  Public Law 105-89;
L.  1999, c. 7; L. 2000, c. 145 .

This measure, which would have no fiscal impact upon the State, would
take effect 90 days after becoming a law.

 2008 LEGISLATIVE HISTORY :

None. New proposal.

2009-S3876 (ACTIVE) - Bill Text download pdf

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

                                  3876

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                              April 2, 2009
                               ___________

Introduced  by  Sen.  MONTGOMERY  --  (at request of the Office of Court
  Administration) -- 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,
  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

S. 3876                             2

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.

S. 3876                             3

  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

S. 3876                             4

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.

S. 3876                             5

  (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.

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