S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  9173--A
 
                           I N  A S S E M B L Y
 
                             February 7, 2022
                                ___________
 
 Introduced  by M. of A. CUSICK, WOERNER, BUTTENSCHON, McDONALD, CYMBROW-
   ITZ, GRIFFIN, ABBATE, THIELE, WALLACE, EICHENSTEIN --  read  once  and
   referred  to  the  Committee  on  Codes  -- committee discharged, bill
   amended, ordered reprinted as amended and recommitted to said  commit-
   tee
 
 AN  ACT to amend the criminal procedure law and the family court act, in
   relation to the prosecution of certain juveniles charged with  certain
   felony crimes and the handling of such cases
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 722.23 of the criminal procedure law, as  added  by
 section 1-a of part WWW of chapter 59 of the laws of 2017, is amended to
 read as follows:
 § 722.23 Removal of adolescent offenders to family court.
   1.  (a)  Following the arraignment of a defendant charged with a crime
 committed when he or she was sixteen[,] or  [commencing  October  first,
 two  thousand  nineteen,] seventeen years of age, other than any class A
 felony except for those defined in article two  hundred  twenty  of  the
 penal law, a violent felony defined in section 70.02 of the penal law or
 a  felony  listed  in  paragraph  one or two of subdivision forty-two of
 section 1.20 of this chapter, A  FELONY  IN  VIOLATION  OF  ARTICLE  TWO
 HUNDRED  SIXTY-FIVE  OF  THE  PENAL  LAW, or an offense set forth in the
 vehicle and traffic law, the court shall order the removal of the action
 to the family court in accordance  with  the  applicable  provisions  of
 article  seven  hundred  twenty-five of this title unless, within thirty
 calendar days of such arraignment, the district attorney makes a  motion
 to  prevent  removal  of the action pursuant to this subdivision. If the
 defendant fails to report to the probation department as  directed,  the
 thirty  day  time  period  shall  be tolled until such time as he or she
 reports to the probation department.
   (b) A motion to prevent removal of an action in youth  part  shall  be
 made  in  writing  and  upon  prompt notice to the defendant. The motion
 shall contain allegations of sworn fact based upon personal knowledge of
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD14468-04-2
              

 A. 9173--A                          2
 
 the affiant, and shall indicate if the district attorney is requesting a
 hearing. The motion shall be noticed to be heard promptly.
   (c)  The defendant shall be given an opportunity to reply. The defend-
 ant shall be granted any reasonable request for a  delay.  Either  party
 may  request  a  hearing  on  the facts alleged in the motion to prevent
 removal of the action. The hearing shall be held expeditiously.
   (d) The court shall deny the motion to prevent removal of  the  action
 in youth part unless the court makes a determination upon such motion by
 the district attorney that extraordinary circumstances exist that should
 prevent the transfer of the action to family court.
   (e)  The  court shall make a determination in writing or on the record
 within five days of the conclusion of the hearing or submission  by  the
 defense,  whichever  is later. Such determination shall include findings
 of fact and to the extent practicable conclusions of law.
   (f) For the purposes of this section, there  shall  be  a  presumption
 against  custody  and  case planning services shall be made available to
 the defendant.
   (g) Notwithstanding any other provision of law, section 308.1  of  the
 family court act shall apply to all actions transferred pursuant to this
 section  provided,  however, such cases shall not be considered removals
 subject to subdivision thirteen of such section 308.1.
   (h) Nothing in this subdivision shall preclude, and a court may order,
 the removal of an action to family court  where  all  parties  agree  or
 pursuant to this chapter.
   2.  (a)  Upon  the  arraignment  of  a  defendant charged with a crime
 committed when he or she was sixteen or[, commencing October first,  two
 thousand  nineteen,]  seventeen  years of age on a class A felony, other
 than those defined in article [220] TWO HUNDRED TWENTY of the penal law,
 [or] a violent felony defined in section 70.02 of the penal  law,  OR  A
 FELONY  IN VIOLATION OF ARTICLE TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW,
 the court shall schedule an appearance no later than six  calendar  days
 from  such  arraignment  for  the  purpose  of  reviewing the accusatory
 instrument pursuant to this subdivision.  The  court  shall  notify  the
 district  attorney  and  defendant regarding the purpose of such appear-
 ance.
   (b) Upon such  appearance,  the  court  shall  review  the  accusatory
 instrument  and  any  other  relevant facts for the purpose of [making a
 determination] DETERMINING WHETHER TO REMOVE THE ACTION  TO  THE  FAMILY
 COURT pursuant to paragraph (c) of this subdivision. Both parties may be
 heard and submit information relevant to the determination.
   (c)  [The  court  shall order the action to proceed in accordance with
 subdivision one of this section unless, after reviewing the  papers  and
 hearing  from  the  parties, the court determines in writing that] OTHER
 THAN ANY CLASS A FELONY EXCEPT FOR THOSE DEFINED IN ARTICLE TWO  HUNDRED
 TWENTY  OF  THE  PENAL LAW, A VIOLENT FELONY DEFINED IN SECTION 70.02 OF
 THE PENAL LAW, A FELONY LISTED IN PARAGRAPH ONE OR  TWO  OF  SUBDIVISION
 FORTY-TWO  OF  SECTION  1.20  OF  THIS CHAPTER, A FELONY IN VIOLATION OF
 ARTICLE TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW, OR AN OFFENSE SET FORTH
 IN THE VEHICLE AND TRAFFIC LAW, THE COURT MAY, BUT SHALL NOT BE REQUIRED
 TO, ORDER REMOVAL AFTER CONSIDERING THE CRITERIA SPECIFIED  IN  SUBDIVI-
 SION  TWO OF SECTION 722.22 OF THIS ARTICLE; PROVIDED, HOWEVER, THAT THE
 COURT SHALL NOT ORDER REMOVAL IF  the  district  attorney  proved  by  a
 preponderance  of the evidence one or more of the following as set forth
 in the accusatory instrument:
   (i) the defendant caused OR ACTIVELY  PARTICIPATED  IN  A  CRIME  THAT
 CAUSED  significant physical injury to a person other than a participant
 A. 9173--A                          3
 
 in the offense OR A CRIME IN  ACCORDANCE  WITH  ACCESSORIAL  CONDUCT  AS
 DEFINED  IN SECTION 20.00 OF THE PENAL LAW OR ACTIVELY PARTICIPATED IN A
 CRIME THROUGH ACCESSORIAL CONDUCT AS DEFINED IN  SECTION  20.00  OF  THE
 PENAL LAW; or
   (ii)  the defendant [displayed] POSSESSED a firearm, shotgun, rifle or
 deadly weapon as defined in  the  penal  law  [in  furtherance  of  such
 offense]  OR  POSSESSED WHAT APPEARED TO BE A FIREARM, SHOTGUN, RIFLE OR
 DEADLY WEAPON AS DEFINED IN THE PENAL LAW, OR ACTIVELY PARTICIPATED IN A
 CRIME WHERE A CO-DEFENDANT POSSESSED A FIREARM, SHOTGUN, RIFLE OR DEADLY
 WEAPON AS DEFINED IN THE PENAL LAW OR  WHERE  A  CO-DEFENDANT  POSSESSED
 WHAT APPEARS TO BE A FIREARM, SHOTGUN, RIFLE OR DEADLY WEAPON AS DEFINED
 IN THE PENAL LAW; or
   (iii)  the  defendant  unlawfully  engaged in sexual intercourse, oral
 sexual conduct, anal sexual conduct or  sexual  contact  as  defined  in
 section 130.00 of the penal law.
   (d)  Where  the  court makes a determination that the action shall not
 proceed in accordance with subdivision one of this section, such  deter-
 mination  shall  be  made  in writing or on the record and shall include
 findings of fact and to the extent practicable conclusions of law.
   (e) Nothing in this subdivision shall  preclude,  and  the  court  may
 order,  the removal of an action to family court where all parties agree
 or pursuant to this chapter.
   3. Notwithstanding the provisions of any other law, if at any time one
 or more charges in the accusatory instrument are reduced, such that  the
 elements  of the highest remaining charge would be removable pursuant to
 subdivisions one or two of this section, then the court, sua  sponte  or
 in  response  to  a  motion  pursuant to subdivisions one or two of this
 section by the defendant, shall promptly notify the parties  and  direct
 that  the  matter  proceed  in  accordance  with subdivision one of this
 section, provided, however, that in such instance, the district attorney
 must file any motion to prevent removal within thirty days of  effecting
 or receiving notice of such reduction.
   4.  A  defendant  may waive review of the accusatory instrument by the
 court and the opportunity for removal in accordance with  this  section,
 provided  that such waiver is made by the defendant knowingly, voluntar-
 ily and in open court, in the presence of and with the approval  of  his
 or  her  counsel and the court. An earlier waiver shall not constitute a
 waiver of review and the opportunity for removal under this section.
   § 2. Subdivision 5 of section 722.21 of the criminal procedure law, as
 added by section 1-a of part WWW of chapter 59 of the laws of 2017,   is
 amended to read as follows:
   5.  Notwithstanding subdivisions two and three of this section, at the
 request of the district attorney, the court shall order  removal  of  an
 action  against an adolescent offender charged with an offense listed in
 paragraph (a) of subdivision two of section 722.23 of this  article,  to
 the  family  court  pursuant  to the provisions of article seven hundred
 twenty-five of this title and upon consideration of the criteria  speci-
 fied  in subdivision two of section 722.22 of this article, it is deter-
 mined that to do so would be in the interests of justice. Where,  howev-
 er,  the felony complaint charges the adolescent offender with murder in
 the second degree as defined in section 125.25 of the penal law, rape in
 the first degree as defined in subdivision one of section 130.35 of  the
 penal  law, criminal sexual act in the first degree as defined in subdi-
 vision one of section 130.50 of the penal law, or  an  armed  felony  as
 defined  in  paragraph  (a)  of subdivision forty-one of section 1.20 of
 this chapter, a determination that such action be removed to the  family
 A. 9173--A                          4
 
 court  shall, in addition, be based upon a finding of one or more of the
 following factors: (i) mitigating circumstances that bear directly  upon
 the manner in which the crime was committed; or (ii) where the defendant
 was not the sole participant in the crime, the defendant's participation
 was relatively minor although not so minor as to constitute a defense to
 the  prosecution;  or (iii) possible deficiencies in proof of the crime.
 IN DETERMINING WHETHER AN ACTION BE REMOVED TO  THE  FAMILY  COURT,  THE
 COURT  MAY  ALSO CONSIDER THE FACTORS PROVIDED FOR IN SUBDIVISION TWO OF
 SECTION 722.22 OF THIS ARTICLE.
   § 3. Paragraphs (h) and (i) of subdivision 2 of section 722.22 of  the
 criminal  procedure  law, as added by section 1-a of part WWW of chapter
 59 of the laws of 2017, are amended to read as follows:
   (h) where  the  court  deems  it  appropriate,  the  attitude  of  the
 complainant or victim with respect to the motion; [and]
   (i) ANY OTHER PENDING CHARGES AGAINST THE INDIVIDUAL;
   (J)  WHETHER  THE INDIVIDUAL WAS AN ACTIVE PARTICIPANT IN THE CRIME OR
 WHETHER THE INDIVIDUAL IS LIABLE THROUGH ACCESSORIAL CONDUCT AS  DEFINED
 IN SECTION 20.00 OF THE PENAL LAW;
   (K)  any  other relevant fact indicating that a judgment of conviction
 in the criminal court would serve no useful purpose; AND
   (L) ANY OTHER FACTOR THE COURT DEEMS RELEVANT TO ITS DETERMINATION.
   § 4. Section 381.1 of the family court act, as added by chapter 920 of
 the laws of 1982, is amended to read as follows:
   § 381.1. Transfer of records and information to institutions and agen-
 cies. 1. Whenever a person is placed with an  institution  suitable  for
 placement  of  a  person adjudicated a juvenile delinquent maintained by
 the state or any subdivision thereof or to an authorized agency  includ-
 ing  the  division for youth, the family court placing such person shall
 forthwith transmit a copy of the orders of the family court pursuant  to
 sections 352.1 and 352.2 and of the probation report and all other rele-
 vant  evaluative  records  in  the  possession  of  the family court and
 probation department related to such person, including but  not  limited
 to  any  diagnostic, educational, medical, psychological and psychiatric
 records with respect to such  person  to  such  institution  or  agency,
 notwithstanding any contrary provision of law.
   2.  FOR  ANY DEFENDANT APPEARING BEFORE THE YOUTH PART OF THE SUPERIOR
 COURT, THE FAMILY COURT SHALL, UPON REQUEST OF  THE  YOUTH  PART  JUDGE,
 FORWARD  A  COPY OF ALL PREVIOUS FAMILY COURT RECORDS CREATED UNDER THIS
 ARTICLE RELATING TO SUCH DEFENDANT IN ORDER TO ASSIST THE  YOUTH  PART'S
 DETERMINATION AS TO WHETHER TO REMOVE A CASE TO FAMILY COURT, INCLUDING,
 NOTWITHSTANDING  ANY  CONTRARY  PROVISION  OF  LAW, WHETHER THE CASE WAS
 SEALED PURSUANT TO SUBDIVISION ONE OF  SECTION  375.1  OF  THIS  ARTICLE
 BASED  ON  A  DISPOSITION  DEFINED IN PARAGRAPH (A), (B), (C), (D), (F),
 (G), (H), OR (I) OF SUBDIVISION TWO OF SECTION 375.1  OF  THIS  ARTICLE.
 SUCH  RECORDS SHALL INCLUDE ANY RECORDS CREATED BY PROBATION SERVICES IN
 ACCORDANCE WITH SECTION 308.1 OF THIS ARTICLE. THE  CHIEF  ADMINISTRATOR
 OF THE UNIFIED COURT SYSTEM SHALL CREATE AN ELECTRONIC SHARING MECHANISM
 TO  ENSURE SECURE, TIMELY, AND EFFICIENT ACCESS BETWEEN THE FAMILY COURT
 AND YOUTH PART, AS WELL AS TO THE PROSECUTOR ON THE YOUTH PART CASE, AND
 THE DEFENSE.
   3. WHENEVER A PERSON SUBJECT TO THIS ACT HAS BEEN ARRESTED, THE FAMILY
 COURT SHALL PROMPTLY MAKE ANY AND  ALL  PREVIOUS  FAMILY  COURT  RECORDS
 CREATED  UNDER  THIS  ARTICLE  RELATED  TO  THAT PERSON AVAILABLE TO THE
 PROBATION SERVICES FOR THE PURPOSE OF DETERMINING WHETHER THE PERSON  IS
 ELIGIBLE FOR ADJUSTMENT SERVICES, INCLUDING, NOTWITHSTANDING ANY CONTRA-
 RY PROVISION OF LAW, WHETHER THE CASE WAS SEALED PURSUANT TO SUBDIVISION
 A. 9173--A                          5
 
 ONE  OF  SECTION 375.1 OF THIS ARTICLE BASED ON A DISPOSITION DEFINED IN
 PARAGRAPH (A), (B), (C), (D), (F), (G), (H), OR (I) OF  SUBDIVISION  TWO
 OF SECTION 375.1 OF THIS ARTICLE.  AN ELECTRONIC SHARING MECHANISM SHALL
 BE  CREATED  BETWEEN  THE  FAMILY COURT AND PROBATION SERVICES TO ENSURE
 SECURE, TIMELY, AND EFFICIENT ACCESS TO SUCH RECORDS.
   § 5. Section 381.3 of the family court act, as added by chapter 920 of
 the laws of 1982, paragraph (b) of subdivision 2 as amended  by  chapter
 926 of the laws of 1982, is amended to read as follows:
   §  381.3. Use of police records. 1. All police records relating to the
 arrest and disposition of any person under this article shall be kept in
 files separate and apart from the arrests of adults and shall  be  with-
 held  from  public  inspection.    FOR PURPOSES OF THIS SECTION, "PUBLIC
 INSPECTION" SHALL NOT MEAN A PRESENTMENT AGENCY IN FAMILY COURT,  A  LAW
 ENFORCEMENT  AGENCY  RESPONSIBLE FOR THE SUBJECT CRIMINAL INVESTIGATION,
 PROBATION SERVICES, OR ANY  AGENCY  DESIGNATED  IN  SUBDIVISION  TWO  OF
 SECTION 720.35 OF THE CRIMINAL PROCEDURE ACT.
   2. Notwithstanding the provisions of subdivision one, the family court
 in the county in which the petition was adjudicated may, upon motion and
 for  good  cause  shown,  order [such] ANY AND ALL PREVIOUS FAMILY COURT
 records open:
   (a) to the respondent or his parent  or  person  responsible  for  his
 care; or
   (b) if the respondent is subsequently convicted of a crime, to a judge
 of  the  court  in  which  he was convicted, unless such record has been
 sealed pursuant to section 375.1 OF THIS ARTICLE, EXCEPT FOR A  DISPOSI-
 TION  DEFINED  IN PARAGRAPH (A), (B), (C), (D), (F), (G), (H), OR (I) OF
 SUBDIVISION TWO OF SECTION 375.1 OF THIS ARTICLE.
   3. An order issued under subdivision two OF THIS SECTION  must  be  in
 writing.
   § 6. Section 302.2 of the family court act, as added by chapter 920 of
 the laws of 1982, is amended to read as follows:
   §  302.2. Statute of limitations. 1. A juvenile delinquency proceeding
 CHARGING THE RESPONDENT WITH  A  CRIME  ALLEGEDLY  COMMITTED  WHEN  SUCH
 RESPONDENT  WAS  UNDER  THE  AGE OF SIXTEEN must be commenced within the
 period of limitation prescribed in section 30.10 of the criminal  proce-
 dure law or, unless the alleged act is a designated felony as defined in
 subdivision  eight  of  section 301.2 OF THIS PART, commenced before the
 respondent's eighteenth birthday, whichever  occurs  earlier.  When  the
 alleged  act  constitutes  a designated felony as defined in subdivision
 eight of section 301.2 OF THIS PART such proceeding  must  be  commenced
 within  [such]  THE  period of limitation PRESCRIBED IN SECTION 30.10 OF
 THE CRIMINAL PROCEDURE LAW or before the respondent's  twentieth  birth-
 day, whichever occurs earlier.
   2.  A  JUVENILE  DELINQUENCY PROCEEDING CHARGING THE RESPONDENT WITH A
 CRIME ALLEGEDLY COMMITTED WHEN SUCH RESPONDENT WAS AGE SIXTEEN YEARS  OR
 OLDER  MUST  BE  COMMENCED WITHIN THE PERIOD OF LIMITATION PRESCRIBED IN
 SECTION 30.10 OF THE CRIMINAL PROCEDURE LAW OR, UNLESS THE  ALLEGED  ACT
 IS  A DESIGNATED FELONY AS DEFINED IN SUBDIVISION EIGHT OF SECTION 301.2
 OF THIS PART, COMMENCED  BEFORE  THE  RESPONDENT'S  TWENTIETH  BIRTHDAY,
 WHICHEVER  OCCURS EARLIER. WHEN THE ALLEGED ACT CONSTITUTES A DESIGNATED
 FELONY AS DEFINED IN SUBDIVISION EIGHT OF SECTION 301.2  OF  THIS  PART,
 SUCH  PROCEEDING  MUST  BE  COMMENCED  WITHIN  THE  PERIOD OF LIMITATION
 PRESCRIBED IN SECTION 30.10 OF THE CRIMINAL PROCEDURE LAW OR BEFORE  THE
 RESPONDENT'S TWENTY-SECOND BIRTHDAY, WHICHEVER OCCURS EARLIER.
   § 7. This act shall take effect immediately.