NY State Senate Bill 2015-S5286

Senate Bill S5286

Signed By Governor

2015-2016 Legislative Session

Relates to adjudication and violation procedures in juvenile delinquency and PINS cases

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Archive: Last Bill Status - Signed by Governor

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
Nov 20, 2015	signed chap.499
Nov 10, 2015	delivered to governor
Jun 18, 2015	returned to senate passed assembly ordered to third reading rules cal.538 substituted for a5897
Jun 15, 2015	referred to codes delivered to assembly passed senate
Jun 01, 2015	advanced to third reading
May 28, 2015	2nd report cal.
May 27, 2015	1st report cal.1009
May 12, 2015	referred to children and families

Votes

- Jun 15, 2015 - Floor Vote
  S5286
  
  62
  
  Aye
  
  0
  
  Nay
  
  0
  
  Absent
  
  1
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jun 15, 2015
      
      aye (62)
      
      Addabbo Jr.
      
      Amedore
      
      Avella
      
      Bonacic
      
      Boyle
      
      Breslin
      
      Carlucci
      
      Comrie
      
      Croci
      
      DeFrancisco
      
      Diaz
      
      Dilan
      
      Espaillat
      
      Farley
      
      Felder
      
      Flanagan
      
      Funke
      
      Gallivan
      
      Gianaris
      
      Golden
      
      Griffo
      
      Hamilton
      
      Hannon
      
      Hassell-Thompson
      
      Hoylman-Sigal
      
      Kennedy
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Latimer
      
      Little
      
      Marcellino
      
      Marchione
      
      Martins
      
      Montgomery
      
      Murphy
      
      Nozzolio
      
      O'Mara
      
      Ortt
      
      Panepinto
      
      Parker
      
      Peralta
      
      Perkins
      
      Ranzenhofer
      
      Ritchie
      
      Rivera
      
      Robach
      
      Sampson
      
      Sanders Jr.
      
      Savino
      
      Serino
      
      Serrano
      
      Seward
      
      Skelos
      
      Squadron
      
      Stavisky
      
      Stewart-Cousins
      
      Valesky
      
      Venditto
      
      Young
      
      excused (1)
      
      Libous
  May 27, 2015 - Children And Families Committee Vote
  S5286
  
  6
  
  Aye
  
  0
  
  Nay
  
  1
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: May 27, 2015
      
      aye (6)
      
      Bonacic
      
      Felder
      
      Savino
      
      Serino
      
      Serrano
      
      Young
      
      aye wr (1)
      
      Montgomery

2015-S5286 (ACTIVE) - Details

See Assembly Version of this Bill:: A5897
Law Section:: Family Court Act
Laws Affected:: Amd §§360.2, 735, 776, 779 & 779-a, add §743, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: S7581
2013-2014: S3831

2015-S5286 (ACTIVE) - Summary

Relates to adjudication and violation procedures in juvenile delinquency and PINS cases.

2015-S5286 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5286

TITLE OF BILL:

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

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 for the fact-finding stage of
the proceeding, as has repeatedly been identified by appellate courts.
This measure would eliminate these gaps by clarifying applicable proce-
dures in cases of alleged violations of orders of probation and orders
of conditional discharge in JD proceedings and with respect to allocu-
tions for admissions and violations of suspended judgments and orders of
probation in PINS cases.

With respect to violations of orders of probation and conditional
discharge, the measure effectuates the apparent legislative intention to
provide identical provisions to toll such dispositional orders while

violation proceedings are pending. While sections 360.2 and 360.3 of the
Family Court Act articulate a procedure governing violations of
probation and of conditional discharge, references to conditional
discharge appear inadvertently to have been omitted from two subdivi-
sions 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) 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.

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 admis-
sion 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 inad-
vertent 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 inappro-
priate 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 revers-
ible 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 A.D.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 --
as compelling in PINS as in JD cases -- militate in favor of equivalent
protections and, therefore, urge 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 orders of probation and suspended judg-
ment 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 A.D.3d 785 (3rd 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), state the reasons for its
determination and 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 if, in which the juvenile was
placed pursuant to Family Court Act § 756, these findings are 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.

2013-14 Legislative History:

Senate 3831-A (Sen. Gallivan) (Rules)
Assembly 2602-B (M. of A. Paulin) (Passed)

2012 Legislative History:

Senate 7581 (Sen. Gallivan) (Rules)
Assembly 10520 (Committee on Rules, at request of M. of A. Paulin, et
al) (Codes)

{1} 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.

2015-S5286 (ACTIVE) - Bill Text download pdf

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

                                  5286

                       2015-2016 Regular Sessions

                            I N  S E N A T E

                              May 12, 2015
                               ___________

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 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
diversion  will  not  be  made  or have been terminated, or prior to the

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

S. 5286                             2

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
that  might  have  been  made  at  the  time  the order of probation was
entered.

S. 5286                             3

  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;
  (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-

S. 5286                             4

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.

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