S T A T E   O F   N E W   Y O R K
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                                  5897

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              March 6, 2015
                               ___________

Introduced  by  M.  of A. PAULIN, LUPARDO, CRESPO, JAFFEE, GALEF, MAGEE,
  MOYA, RIVERA, TITONE, WEPRIN -- (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 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. Subdivisions 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:
  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] AN OFFICE OF CHILDREN AND FAMILY SERVICES 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 2. 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05971-04-5
              

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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  3.  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  4.  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-
ment and proceed to make any order that might have been made at the time
judgment was suspended.
  S  5.  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 A 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 SUBDIVI-
SION (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

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that  might  have  been  made  at  the  time  the order of probation was
entered.
  S  6. 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, 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 SPECIFIC  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 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 abscond-
ed  from  probation  supervision  and  the  respondent's whereabouts are
unknown. The court must be notified promptly of the circumstances of any
such probationers.
  (D) IF A PETITION IS FILED UNDER SUBDIVISION (A) OF THIS  SECTION  AND
THE  PETITION  SATISFIES  THE  REQUIREMENTS  OF  SUBDIVISION (B) 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  PETI-
TION.  SUCH  INTERRUPTION  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  IN  AN
IMPORTANT RESPECT AND 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.
  (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;

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  (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; AND
  (C) DETERMINE WHETHER THE RESPONDENT SHOULD BE  RELEASED  OR  DETAINED
PURSUANT TO SECTION SEVEN HUNDRED TWENTY OF THIS ARTICLE.
  (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 EVIDENCE THAT IS  RELE-
VANT, COMPETENT AND MATERIAL. THE RESPONDENT MAY CROSS-EXAMINE WITNESSES
AND PRESENT 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  7.  This  act shall take effect on the ninetieth day after it shall
have become a law  and  shall  apply  to  petitions  for  violations  of
probation,  conditional  discharge  and  suspended  judgment filed on or
after such effective date.