NY State Senate Bill 2011-S7581

Senate Bill S7581

2011-2012 Legislative Session

Actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases

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Archive: Last Bill Status - In Senate Committee Rules 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 05, 2012	referred to rules

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2011-S7581 (ACTIVE) - Details

See Assembly Version of this Bill:: A10520
Current Committee:: Senate Rules
Law Section:: Family Court Act
Laws Affected:: Amd §§315.3, 353.3, 360.2, 735, 776, 779 & 779-a, add §743, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2013-2014: S3831, A2602
2015-2016: S5286

2011-S7581 (ACTIVE) - Summary

Relates to actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases.

2011-S7581 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S7581

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. This measure would 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 procedures to
be followed and the threshold showing required to establish a

violation of the conditions of an ACD sufficient to restore a case to
the calendar. It likewise is silent regarding whether an ACD
violation should trigger either a fact-finding or dispositional
hearing. Subdivision one of section 315.3 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 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.

8 N.Y.2d, at 603. Noting that the scope of the hearing will vary
according to the circumstances of particular cases, the Court left
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 Matter of Edwin L. and
provides needed amplification of the applicable procedures. It
requires a verified petition, to 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, the measure authorizes Family Court to order that
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 should be admissible.(1)
If the petition to
restore the matter to the calendar is sustained, the case would be
set down for a fact-finding or dispositional hearing, depending upon
whether the matter had been 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)), the measure further provides that the period of the
ACD is to be tolled during 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 is to be credited to the period of adjournment in
contemplation of dismissal.

Second, the measure clearly specifies that hearsay may be included in
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.
In Matter of Markim Q., 7 N.Y.3d 406 (2006), the Court of Appeals held
that a facial deficiency in the petition is not jurisdictional and is
thus not reviewable on appeal unless an objection is preserved, thus
reversing the Appellate Division decision that found hearsay
allegations to be insufficient.
See Matter of Markim Q., 22 A.D.3d 498 (2d Dept., 2005).(2) The 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, the measure effectuates the apparent legislative intention to
provide identical provisions tolling orders of probation and
conditional discharge while violation proceedings are pending. While

sections 360.2 and 360.3 articulate a procedure governing violations
of both probation and conditional discharge, references to
conditional discharge appear inadvertently to have been omitted from
two subdivisions of those sections. In Matter of Donald MM, 231
A.D.2d 810 (3rd Dept., 1996), lye. app.
denied, 89 N.Y.2d 804 (1996), the Appellate Division, Third
Department, read into section 360.2(4) of the Family Court Act a
requirement that the period of a conditional discharge be tolled
during 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." This
measure incorporates this tolling requirement into section 360.2(4)
of the Family Court Act. Using the same rationale, it remedies a
similar gap in subdivision five of the same section, which requires
credit for the period of pendency of a violation petition to be given
in cases in which the violation has not been sustained.

Fourth, the measure remedies an anomaly in the JD placement statute.
While placement with the 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 a 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 whom the agency
contracts with for payment of the child's placement. This measure,
therefore, would incorporate Executive Law § 510-b(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 State Office of
Children and Family Services.

With respect to PINS proceedings, the measure 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 JD 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 as 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.
Additionally, the measure corrects an apparently inadvertent omission
of a phrase in subdivision (h) of section 735 of the Family Court Act.

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
A.D.2d 719, 720 (3rd Dept., 2000), however, the Appellate Division,
Third Department, held it to be reversible error for Family Court to
accept an admission in a PINS proceeding without first advising
respondent of her right to remain silent. Accord, Matter of Ashley
R., 42 A.D.3d 689 (3d Dept., 2007); Matter of Marquis s., 26 A.D.3d
757 (4th Dept., 2006); Matter of Steven z., 19 AD.3d 783 (3d Dept.,
2005); Matter of Matthew RR., 9 A.D.3d 514 (3d Dept., 2004); Matter
of Nichole A., 300 A.D.2d 947 (3rd Dept., 2002); Matter of Jodi VV.,
295 A.D.2d 659 (3rd Dept., 2002); Matter of Shaun U, 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, urges the
Legislature to enact a provision for PINS cases comparable to the
allocution requirement applicable to JD proceedings.

The final two amendments to the PINS statutes would delineate
procedures for violations of orders of suspended judgment and
violations of probation, drawing upon existing JD procedures. See
Family Court Act §§360.2, 360.3. Violations of both or&rs 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 be tolled
during the pendency of the violation petition. The juvenile must 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, the Family Court would be authorized to
adjourn the matter for a new 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 AD.3d 785 (3d Dept., 2004); Matter
of Josiah RR., 277 A.D.2d 654 (3rd Dept., 2000). The court would be
permitted to revoke, continue or modify the order of probation or
suspended judgment. If the order is revoked, the court must 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).(3) In matters, such as Nathaniel JJ, in which the juvenile
was placed pursuant to Family Court Act §756, these findings would be

mandated as well by the Federal and State Adoption and Safe Families
Acts (public Law 105-89; 1.. 1999, c.7; 1.. 2000, c. 145).

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

2012 LEGISLATIVE HISTORY:
None. New proposal.

FOOTNOTES:
(1) In light of the Governor's veto of this proposal in 1999, it was
revised to delete reference to a specific burden of proof.

(2) Like the Appellate Division in Matter of Markim Q., supra, the
Appellate Division, Third Department, has applied strict juvenile
delinquency pleading requirements for non-hearsay allegations to
probation violation petitions. See Matter of Whitney Z, 12 A.D.3d 971
(3d Dept., 2004); Matter of Todd D., 288 A.D.2d 740 (3d Dept., 2001).

(3) The final appeal in Matter of Nathaniel JJ., 274 A.D.2d 611 (3rd
Dept., 2000) was dismissed as moot, since the appellant had been
released from placement.

2011-S7581 (ACTIVE) - Bill Text download pdf

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

                                  7581

                            I N  S E N A T E

                              June 5, 2012
                               ___________

Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Rules

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 535 of the laws  of  2011,  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 [of]
subdivision (a) of section [19.07] 19.25 of the mental hygiene law.  The
court may, as a condition of an adjournment in contemplation of dismiss-
al  order, in cases where the record indicates that the respondent is an
eligible person as defined in section four hundred fifty-eight-l of  the
social  services  law and has allegedly committed an eligible offense as
defined in such section, direct the respondent to attend and complete an
education reform program established pursuant to  section  four  hundred
fifty-eight-l  of  the social services 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

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

                                                           LBD15909-01-2

S. 7581                             2

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  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 of 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

S. 7581                             3

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.
  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. Subdivision (h) of section 735 of the family court act, as added
by section 7 of part E of chapter 57 of the laws of 2005, is amended  to
read as follows:
  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, may be admitted into evidence at  a  fact-finding
hearing or, if the proceeding is transferred to a criminal court, at any
time prior to a conviction.
  S  6.  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  7.  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 SUBJECT TO 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 [suspension] ORDER of SUSPENDED  judg-

S. 7581                             4

ment and proceed to make any order that might have been made at the time
judgment was suspended.
  S  8.  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  SUBJECT TO SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS ARTICLE. IF,
after hearing PURSUANT TO SUCH SECTION, the court [is satisfied]  DETER-
MINES  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  9. 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 JUDGEMENT. (A) If, at any time during
the period of [a disposition  of]  probation,  the  [court]  PETITIONER,
PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause
to  believe  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 PURSUANT
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.

S. 7581                             5

  (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)  HEARING  ON  VIOLATION.  (I) THE COURT MAY NOT REVOKE AN ORDER OF
PROBATION OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY  COMPETENT
PROOF THAT THE RESPONDENT 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 PETI-
TION 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.
  (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 10. 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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Senate Bill S7581

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Sponsored By

Patrick M. Gallivan