NY State Assembly Bill A5891C

Archive: Last Bill Status - Passed Assembly

Introduced
In Committee
On Floor Calendar
- Passed Senate
- Passed Assembly
Delivered to Governor
Signed/Vetoed by Governor

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Actions

view actions (16)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 01, 2022	referred to finance delivered to senate passed assembly
Apr 26, 2022	amended on third reading 5891c
Jan 05, 2022	ordered to third reading cal.194
Jun 08, 2021	ordered to third reading rules cal.569 rules report cal.569 reported reported referred to rules
Jun 07, 2021	reported referred to ways and means
Jun 02, 2021	print number 5891b
Jun 02, 2021	amend and recommit to codes
May 25, 2021	reported referred to codes
May 20, 2021	print number 5891a
May 20, 2021	amend and recommit to children and families
Mar 01, 2021	referred to children and families

Bill Amendments

Original

C (Active)

Original

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Co-Sponsors

A5891 - Details

See Senate Version of this Bill:: S2800
Current Committee:: Senate Finance
Law Section:: Family Court Act
Laws Affected:: Amd §§305.2 & 724, Fam Ct Act; amd §§140.20, 140.27 & 140.40, CP L
Versions Introduced in Other Legislative Sessions:: 2019-2020: A6982, S4980
2023-2024: A1963, S1099

A5891 - Summary

Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles and sixteen and seventeen year olds into custody.

A5891 - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5891
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 1, 2021
                                ___________
 
 Introduced  by  M.  of A. JOYNER, SIMON -- read once and referred to the
   Committee on Children and Families
 
 AN ACT to amend the family court act and the criminal procedure law,  in
   relation  to  the custodial interrogation of juveniles by law enforce-
   ment
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 3 of section 305.2 of the family court act, as
 added by chapter 920 of the laws of 1982, is amended to read as follows:
   3. If an officer takes such child into custody or if a child is deliv-
 ered to him OR HER under section 305.1, he  OR  SHE  shall  immediately,
 BEFORE  TRANSPORTING  THE  CHILD TO THE POLICE STATION HOUSE, notify the
 parent or other person legally responsible for the child's care,  or  if
 such  legally responsible person is unavailable the person with whom the
 child resides, that the child has been taken into custody.
   § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  added by chapter 920 of the laws of 1982, is amended to
 read as follows:
   (a) WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR  OTHER  PERSON
 LEGALLY  RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD TO
 HIS OR HER HOME, THE STATION HOUSE, OR ANOTHER LOCATION AGREED UPON WITH
 THE PARENT OR PERSON LEGALLY RESPONSIBLE, AND release the child  to  the
 custody  of  [his  parents  or  other person legally responsible for his
 care] SUCH PERSON upon the issuance in accordance with section 307.1  of
 a  family  court  appearance ticket to the child and the person to whose
 custody the child is released; or
   § 3. Paragraph (b) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  amended  by section 63 of part WWW of chapter 59 of the
 laws of 2017, is amended to read as follows:
   (b) WHEN THE OFFICER DOES NOT REASONABLY BELIEVE THE PARENT  OR  OTHER
 PERSON  LEGALLY  RESPONSIBLE  FOR  THE  CHILD'S CARE WILL APPEAR FOR THE
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD03836-01-1

 A. 5891                             2
 
 CHILD, forthwith and with all reasonable speed take the child  directly,
 and without his OR HER first being taken to the police station house, to
 the  family court located in the county in which the act occasioning the
 taking  into  custody allegedly was committed, or, when the family court
 is not in session, to the most accessible magistrate, if any, designated
 by the appellate division of the supreme court in the applicable depart-
 ment to conduct a hearing under section 307.4 [of this part, unless  the
 officer  determines that it is necessary to question the child, in which
 case he or she may take the child to a facility designated by the  chief
 administrator  of  the courts as a suitable place for the questioning of
 children or, upon the consent  of  a  parent  or  other  person  legally
 responsible  for  the  care  of  the child, to the child's residence and
 there question him or her for a reasonable period of time]; or
   § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
 court  act,  as amended by section 3 of part G of chapter 58 of the laws
 of 2010, is amended to read as follows:
   (c) WHEN THE OFFICER DOES NOT RELEASE THE CHILD PURSUANT TO  PARAGRAPH
 (A)  OF  THIS  SUBDIVISION,  OR  TAKE  THE CHILD TO FAMILY COURT OR TO A
 MAGISTRATE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION, take the child
 to a place certified by the office of children and family services as  a
 juvenile detention facility for the reception of children; or
   §  5.  Subdivision  5  of  section  305.2  of the family court act, as
 amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
 follows:
   5.  If  such  child has allegedly committed a designated felony act as
 defined in subdivision eight of section 301.2, and the family  court  in
 the  county  is  in  session, the officer shall forthwith take the child
 directly to such family court, unless the officer takes the child  to  a
 facility  for  questioning in accordance with [paragraph (b) of subdivi-
 sion four. If such child has not allegedly committed a designated felony
 act and such family court is in session, the officer shall either forth-
 with take the child directly to such family court,  unless  the  officer
 takes  the  child to a facility for questioning in accordance with para-
 graph (b) of subdivision four or release the child  in  accordance  with
 paragraph (a) of subdivision four] SUBDIVISION SEVEN.
   §  6. Subdivision 6 of section 305.2 of the family court act, as added
 by chapter 920 of the laws of 1982, is amended to read as follows:
   6. [In all other cases] IF SUCH CHILD HAS NOT  ALLEGEDLY  COMMITTED  A
 DESIGNATED  FELONY ACT, and in the absence of special circumstances, the
 officer shall release the child in  accordance  with  paragraph  (a)  of
 subdivision four.
   §  7.  Subdivisions  7 and 8 of section 305.2 of the family court act,
 subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
 sion 8 as amended by chapter 299 of the laws of 2020, are amended and  a
 new subdivision 10 is added to read as follows:
   7.   IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS NECES-
 SARY PRIOR TO TAKING ACTION AUTHORIZED BY SUBDIVISION FOUR OR FIVE,  THE
 OFFICER  MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE CHIEF ADMIN-
 ISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE QUESTIONING OF  CHIL-
 DREN  OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY RESPONSI-
 BLE FOR THE CARE OF THE CHILD,  TO  THE  CHILD'S  RESIDENCE  AND  THERE,
 SUBJECT  TO  THE  REQUIREMENTS OF SUBDIVISION EIGHT, QUESTION HIM OR HER
 FOR A REASONABLE PERIOD OF TIME. QUESTIONING IS NECESSARY ONLY WHEN  THE
 OFFICER  REASONABLY  DETERMINES  THAT THE CHILD'S LIFE OR HEALTH, OR THE
 LIFE OR HEALTH OF ANOTHER INDIVIDUAL, IS IN IMMINENT DANGER AND THAT THE

 A. 5891                             3
 
 CHILD MAY HAVE INFORMATION THAT  WOULD  ASSIST  THE  OFFICER  IN  TAKING
 PROTECTIVE ACTION.
   8.  A  child  shall  not be questioned pursuant to this section unless
 [he] OR UNTIL:
   (A) THE CHILD and a person required to be notified pursuant to  subdi-
 vision three if present, have been advised:
   [(a)] (I) of the child's right to remain silent;
   [(b)]  (II)  that  the  statements  made by the child may be used in a
 court of law;
   [(c)] (III) of the child's right to have an attorney present  at  such
 questioning; and
   [(d)]  (IV)  of the child's right to have an attorney provided for him
 OR HER without charge if he OR SHE is indigent; AND
   (B) THE CHILD HAS CONSULTED WITH LEGAL COUNSEL  IN  PERSON,  BY  TELE-
 PHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   [8.]  9. In determining the suitability of questioning and determining
 the reasonable period of time for questioning such a child, the  child's
 age,  the  presence  or  absence  of his or her parents or other persons
 legally responsible for his or her care, notification pursuant to subdi-
 vision three and, where the child has been interrogated  at  a  facility
 designated  by the chief administrator of the courts as a suitable place
 for the questioning of  juveniles,  whether  the  interrogation  was  in
 compliance  with  the  video-recording  and  disclosure  requirements of
 subdivision five-a of this section  shall  be  included  among  relevant
 considerations.
   10. IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 344.2, A STATE-
 MENT  SHALL  BE  SUPPRESSED: WHEN THE CHILD HAS NOT CONSULTED WITH LEGAL
 COUNSEL AS REQUIRED BY PARAGRAPH (B) OF SUBDIVISION EIGHT; WHEN A PERSON
 NOTIFIED PURSUANT TO SUBDIVISION THREE, IF PRESENT, HAS NOT BEEN ADVISED
 OF AND VOLUNTARILY WAIVED THE RIGHTS  DELINEATED  IN  PARAGRAPH  (A)  OF
 SUBDIVISION  EIGHT;  OR WHEN THE QUESTIONING OF THE CHILD WAS NOT NECES-
 SARY WITHIN THE DEFINITION IN SUBDIVISION SEVEN.
   § 8. Section 724 of the family court  act,  the  section  heading  and
 subdivisions  (b) and (c) as amended by chapter 843 of the laws of 1980,
 subdivision (a) as amended by chapter 920 of the  laws  of  1982,  para-
 graphs  (i),  (ii), and (iv) of subdivision (b), paragraphs (i) and (ii)
 as amended and paragraph (iv) as added by section 4 of part E of chapter
 57 of the laws of 2005, paragraph (iii) of subdivision (b) as amended by
 section 7 of part M of chapter 56 of the laws of 2017,  and  subdivision
 (d)  as  added by chapter 809 of the laws of 1963, is amended to read as
 follows:
   § 724. Duties of police officer or peace  officer  after  taking  into
 custody  or  on  delivery by private person. (a) If a peace officer or a
 police officer takes into custody or if a person  is  delivered  to  him
 under section seven hundred twenty-three, the officer shall immediately,
 BEFORE  TRANSPORTING  THE CHILD TO ANY OTHER LOCATION, notify the parent
 or other person legally responsible for his care,  or  the  person  with
 whom he is domiciled, that he has been taken into custody.
   (b)  After  making every reasonable effort to give notice under [para-
 graph] SUBDIVISION (a) OF THIS SECTION, the officer shall
   (i) WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR  OTHER  PERSON
 LEGALLY  RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD TO
 HIS OR HER HOME, THE POLICE STATION HOUSE, OR  ANOTHER  LOCATION  AGREED
 UPON  WITH  THE  PARENT  OR  PERSON LEGALLY RESPONSIBLE, AND release the
 youth to the custody of [his or her parent or other] SUCH person [legal-

 A. 5891                             4

 ly responsible for his or her care] upon the  written  promise,  without
 security,  of  the person to whose custody the youth is released that he
 or she will produce the youth before the lead agency designated pursuant
 to section seven hundred thirty-five of this article in that county at a
 time and place specified in writing; or
   (ii)  WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR OTHER PERSON
 LEGALLY RESPONSIBLE FOR THE CHILD'S CARE  WILL  APPEAR  FOR  THE  CHILD,
 forthwith  and  with  all  reasonable speed take the youth directly, and
 without first being taken to the police station house, to the designated
 lead agency located in the county  in  which  the  act  occasioning  the
 taking  into  custody allegedly was done[, unless the officer determines
 that it is necessary to question the youth, in which case he or she  may
 take  the  youth  to a facility designated by the chief administrator of
 the courts as a suitable place for the questioning of youth or, upon the
 consent of a parent or other person legally responsible for the care  of
 the  youth, to the youth's residence and there question him or her for a
 reasonable period of time]; or
   (iii) take a youth in need of crisis intervention or respite  services
 to  a  runaway  and  homeless  youth  crisis  services  program or other
 approved respite or crisis program; or
   (iv) take the youth directly to the family court located in the county
 in which the act occasioning the taking into custody was allegedly done,
 provided that the officer affirms on the record that he or she attempted
 to exercise the options identified in paragraphs (i), (ii) and (iii)  of
 this  subdivision, was unable to exercise these options, and the reasons
 therefor.
   (c) In the absence of special circumstances, the officer shall release
 the child in accord with paragraph [(b)] (i) OF SUBDIVISION (B) OF  THIS
 SECTION.
   (d)  IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS NECES-
 SARY PRIOR TO TAKING  ACTION  AUTHORIZED  BY  SUBDIVISION  (B)  OF  THIS
 SECTION,  THE OFFICER MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE
 CHIEF ADMINISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE  QUESTION-
 ING OF CHILDREN OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY
 RESPONSIBLE  FOR  THE  CARE  OF  THE CHILD, TO THE CHILD'S RESIDENCE AND
 THERE, SUBJECT TO THE REQUIREMENTS OF SUBDIVISION (E) OF  THIS  SECTION,
 QUESTION  HIM  OR  HER  FOR A REASONABLE PERIOD OF TIME.  QUESTIONING IS
 NECESSARY ONLY WHEN THE OFFICER REASONABLY DETERMINES THAT  THE  CHILD'S
 LIFE OR HEALTH, OR THE LIFE OR HEALTH OF ANOTHER INDIVIDUAL, IS IN IMMI-
 NENT  DANGER  AND  THAT THE CHILD MAY HAVE INFORMATION THAT WOULD ASSIST
 THE OFFICER IN TAKING PROTECTIVE ACTION.
   (E) In determining THE SUITABILITY OF QUESTIONING AND DETERMINING what
 is a "reasonable period of time" for questioning a  child,  the  child's
 age [and], the presence or absence of his parents or other person legal-
 ly responsible for his care AND NOTIFICATION PURSUANT TO SUBDIVISION (A)
 OF THIS SECTION shall be included among the relevant considerations.
   (F)  NO STATEMENT MADE TO A PEACE OFFICER OR A POLICE OFFICER PRIOR TO
 THE COMMENCEMENT OF A FACT-FINDING HEARING MAY BE ADMITTED INTO EVIDENCE
 AT A FACT-FINDING HEARING.
   § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
 amended by section 20 of part WWW of chapter 59 of the laws of 2017,  is
 amended to read as follows:
   6.  (A)  Upon  arresting  a  juvenile  offender or a person sixteen or
 commencing October first, two thousand nineteen, seventeen years of  age
 without  a  warrant, the police officer shall immediately, BEFORE TRANS-
 PORTING THE CHILD TO THE POLICE STATION  HOUSE,  notify  the  parent  or

 A. 5891                             5
 
 other  person legally responsible for his or her care or the person with
 whom he or she is domiciled, that such JUVENILE offender or  person  has
 been  arrested,  and  the  location  of the facility where he or she [is
 being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender  or  such  person,  the officer must take him or her to a
 facility designated by the chief administrator of the courts as a  suit-
 able  place  for  the  questioning of children or, upon the consent of a
 parent or other person legally responsible for the care of the  juvenile
 or  such  person,  to  his  or  her  residence and there, SUBJECT TO THE
 REQUIREMENTS OF PARAGRAPH (C) OF THIS SUBDIVISION, question him  or  her
 for a reasonable period of time.  QUESTIONING IS NECESSARY ONLY WHEN THE
 OFFICER  REASONABLY  DETERMINED  THAT THE CHILD'S LIFE OR HEALTH, OR THE
 LIFE OR HEALTH OF ANOTHER INDIVIDUAL, IS IN IMMINENT DANGER AND THAT THE
 CHILD MAY HAVE INFORMATION THAT  WOULD  ASSIST  THE  OFFICER  IN  TAKING
 PROTECTIVE ACTION.
   (C)  A juvenile OFFENDER or such person shall not be questioned pursu-
 ant to this section unless OR UNTIL:
   (I) he or she and a person required to be notified pursuant  to  PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)]  (A) of the juvenile offender's or such person's right to remain
 silent;
   [(b)] (B) that the statements made by him or her  may  be  used  in  a
 court of law;
   [(c)]  (C)  of  his  or  her right to have an attorney present at such
 questioning; and
   [(d)] (D) of his or her right to have an attorney provided for him  or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II) THE JUVENILE OFFENDER OR SUCH PERSON HAS CONSULTED WITH AN ATTOR-
 NEY  IN  PERSON, BY TELEPHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION
 MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 person, his or her age, the presence or absence of his or her parents or
 other persons legally responsible for his or her care  and  notification
 pursuant  to  PARAGRAPH  (A) OF this subdivision shall be included among
 relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS  SUBDIVI-
 SION,  IF  PRESENT,  HAS  NOT BEEN ADVISED OF AND VOLUNTARILY WAIVED THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF  THIS  SUBDIVISION;  OR  WHEN  THE
 QUESTIONING  OF  THE  CHILD  WAS  NOT NECESSARY WITHIN THE DEFINITION IN
 PARAGRAPH (B) OF THIS SUBDIVISION.
   § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
 as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
 is amended to read as follows:
   5. (A) Upon arresting a juvenile  offender  or  a  person  sixteen  or
 commencing  October first, two thousand nineteen, seventeen years of age
 without a warrant, the peace officer shall  immediately,  BEFORE  TRANS-
 PORTING  THE  CHILD  TO  THE  POLICE STATION HOUSE, notify the parent or
 other person legally responsible for his or her care or the person  with
 whom  he  or she is domiciled, that such JUVENILE offender or person has

 A. 5891                             6
 
 been arrested, and the location of the facility  where  he  or  she  [is
 being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender  or  such  person,  the officer must take him or her to a
 facility designated by the chief administrator of the courts as a  suit-
 able  place  for  the  questioning of children or, upon the consent of a
 parent or other person legally responsible for the care  of  a  juvenile
 offender  or  such person, to his or her residence and there, SUBJECT TO
 THE REQUIREMENTS OF PARAGRAPH (C) OF THIS SUBDIVISION, question  him  or
 her for a reasonable period of time.  QUESTIONING IS NECESSARY ONLY WHEN
 THE  OFFICER  REASONABLY  DETERMINES THAT THE CHILD'S LIFE OR HEALTH, OR
 THE LIFE OR HEALTH OF ANOTHER INDIVIDUAL, IS IN IMMINENT DANGER AND THAT
 THE CHILD MAY HAVE INFORMATION THAT WOULD ASSIST THE OFFICER  IN  TAKING
 PROTECTIVE ACTION.
   (C)  A juvenile offender or such person shall not be questioned pursu-
 ant to this section unless OR UNTIL:
   (I) the juvenile offender or such person and a person required  to  be
 notified pursuant to PARAGRAPH (A) OF this subdivision, if present, have
 been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)]  (B)  that  the statements made by the juvenile offender or such
 person may be used in a court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II) THE JUVENILE OFFENDER OR SUCH PERSON HAS CONSULTED WITH AN ATTOR-
 NEY IN PERSON, BY TELEPHONE OR BY VIDEO  CONFERENCE.  THIS  CONSULTATION
 MAY NOT BE WAIVED.
   (D)  In determining the suitability of questioning and determining the
 reasonable period of time for questioning such a  juvenile  offender  or
 such  person,  his  or  her  age,  the presence or absence of his or her
 parents or other persons legally responsible for his  or  her  care  and
 notification  pursuant  to  PARAGRAPH  (A)  OF this subdivision shall be
 included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS  SUBDIVI-
 SION,  IF  PRESENT,  HAS  NOT BEEN ADVISED OF AND VOLUNTARILY WAIVED THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF  THIS  SUBDIVISION;  OR  WHEN  THE
 QUESTIONING  OF  THE  CHILD  WAS  NOT NECESSARY WITHIN THE DEFINITION IN
 PARAGRAPH (B) OF THIS SUBDIVISION.
   § 11. Subdivision 5 of section 140.40 of the criminal  procedure  law,
 as  amended by section 24 of part WWW of chapter 59 of the laws of 2017,
 is amended to read as follows:
   5. (A) If a police officer takes an arrested juvenile  offender  or  a
 person  sixteen  or  commencing  October  first, two [thosuand] THOUSAND
 nineteen, seventeen years of age into custody, the police officer  shall
 immediately,  BEFORE  TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE
 notify the parent or other person legally responsible  for  his  or  her
 care  or the person with whom he or she is domiciled, that such JUVENILE
 offender or person has been arrested, and the location of  the  facility
 where he or she [is being] WILL BE detained.

 A. 5891                             7
 
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender  or  such  person  the  officer must take him or her to a
 facility designated by the chief administrator of the courts as a  suit-
 able  place  for  the  questioning of children or, upon the consent of a
 parent  or other person legally responsible for the care of the juvenile
 offender or such person, to his or her residence and there,  SUBJECT  TO
 THE  REQUIREMENTS  OF PARAGRAPH (C) OF THIS SUBDIVISION, question him or
 her for a reasonable period of time.  QUESTIONING IS NECESSARY ONLY WHEN
 THE OFFICER REASONABLY DETERMINES THAT THE CHILD'S LIFE  OR  HEALTH,  OR
 THE  LIFE OR THE HEALTH OF ANOTHER INDIVIDUAL, IS IN IMMINENT DANGER AND
 THAT THE CHILD MAY HAVE INFORMATION THAT WOULD  ASSIST  THE  OFFICER  IN
 TAKING PROTECTIVE ACTION.
   (C)  A juvenile offender or such person shall not be questioned pursu-
 ant to this section unless OR UNTIL:
   (I) he or she and a person required to be notified pursuant  to  PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)]  (B)  that  the statements made by the juvenile offender or such
 person may be used in a court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 such person, his or her age, the presence  or  absence  of  his  or  her
 parents  or  other  persons  legally responsible for his or her care and
 notification pursuant to PARAGRAPH (A)  OF  this  subdivision  shall  be
 included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE  WITHIN  THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45 OF THIS
 CHAPTER, A STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD  HAS  NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION;  WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDIVI-
 SION, IF PRESENT, HAS NOT BEEN ADVISED OF  AND  VOLUNTARILY  WAIVED  THE
 RIGHTS  DELINEATED  IN  PARAGRAPH  (C)  OF THIS SUBDIVISION; OR WHEN THE
 QUESTIONING OF THE CHILD WAS NOT  NECESSARY  WITHIN  THE  DEFINITION  IN
 PARAGRAPH (B) OF THIS SUBDIVISION.
   §  12.  This  act  shall take effect April 1, 2022; provided, however,
 that if chapter 299 of the laws of 2020 shall not have taken  effect  on
 or  before  such  date  then  the amendments to subdivision 8 of section
 305.2 of the family court act made by section seven of  this  act  shall
 take  effect  on the same date and in the same manner as such chapter of
 the laws of 2020 takes effect.

Co-Sponsors

A5891A - Details

See Senate Version of this Bill:: S2800
Current Committee:: Senate Finance
Law Section:: Family Court Act
Laws Affected:: Amd §§305.2 & 724, Fam Ct Act; amd §§140.20, 140.27 & 140.40, CP L
Versions Introduced in Other Legislative Sessions:: 2019-2020: A6982, S4980
2023-2024: A1963, S1099

A5891A - Summary

Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles and sixteen and seventeen year olds into custody.

A5891A - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5891--A
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 1, 2021
                                ___________
 
 Introduced  by  M. of A. JOYNER, SIMON, DICKENS, CARROLL, AUBRY, BARRON,
   O'DONNELL, DINOWITZ, FORREST -- read once and referred to the  Commit-
   tee  on  Children  and Families -- committee discharged, bill amended,
   ordered reprinted as amended and recommitted to said committee
 
 AN ACT to amend the family court act and the criminal procedure law,  in
   relation  to  the custodial interrogation of juveniles by law enforce-
   ment
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 3 of section 305.2 of the family court act, as
 added by chapter 920 of the laws of 1982, is amended to read as follows:
   3. If an officer takes such child into custody or if a child is deliv-
 ered to him OR HER under section 305.1, he  OR  SHE  shall  immediately,
 BEFORE  TRANSPORTING  THE  CHILD TO THE POLICE STATION HOUSE, notify the
 parent or other person legally responsible for the child's care,  or  if
 such  legally responsible person is unavailable the person with whom the
 child resides, that the child has been taken into custody.
   § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  added by chapter 920 of the laws of 1982, is amended to
 read as follows:
   (a) WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR  OTHER  PERSON
 LEGALLY  RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD TO
 HIS OR HER HOME, THE STATION HOUSE, OR ANOTHER LOCATION AGREED UPON WITH
 THE PARENT OR PERSON LEGALLY RESPONSIBLE, AND release the child  to  the
 custody  of  [his  parents  or  other person legally responsible for his
 care] SUCH PERSON upon the issuance in accordance with section 307.1  of
 a  family  court  appearance ticket to the child and the person to whose
 custody the child is released; or
   § 3. Paragraph (b) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  amended  by section 63 of part WWW of chapter 59 of the
 laws of 2017, is amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD03836-02-1

 A. 5891--A                          2
 
   (b) WHEN THE OFFICER DOES NOT REASONABLY BELIEVE THE PARENT  OR  OTHER
 PERSON  LEGALLY  RESPONSIBLE  FOR  THE  CHILD'S CARE WILL APPEAR FOR THE
 CHILD, forthwith and with all reasonable speed take the child  directly,
 and without his OR HER first being taken to the police station house, to
 the  family court located in the county in which the act occasioning the
 taking into custody allegedly was committed, or, when the  family  court
 is not in session, to the most accessible magistrate, if any, designated
 by the appellate division of the supreme court in the applicable depart-
 ment  to conduct a hearing under section 307.4 [of this part, unless the
 officer determines that it is necessary to question the child, in  which
 case  he or she may take the child to a facility designated by the chief
 administrator of the courts as a suitable place for the  questioning  of
 children  or,  upon  the  consent  of  a  parent or other person legally
 responsible for the care of the child,  to  the  child's  residence  and
 there question him or her for a reasonable period of time]; or
   §  4.  Paragraph  (c)  of subdivision 4 of section 305.2 of the family
 court act, as amended by section 3 of part G of chapter 58 of  the  laws
 of 2010, is amended to read as follows:
   (c)  WHEN THE OFFICER DOES NOT RELEASE THE CHILD PURSUANT TO PARAGRAPH
 (A) OF THIS SUBDIVISION, OR TAKE THE CHILD  TO  FAMILY  COURT  OR  TO  A
 MAGISTRATE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION, take the child
 to  a place certified by the office of children and family services as a
 juvenile detention facility for the reception of children; or
   § 5. Subdivision 5 of section  305.2  of  the  family  court  act,  as
 amended  by  chapter  398  of  the  laws  of 1983, is amended to read as
 follows:
   5. If such child has allegedly committed a designated  felony  act  as
 defined  in  subdivision eight of section 301.2, and the family court in
 the county is in session, the officer shall  forthwith  take  the  child
 directly  to  such  family  court  OR,  WHEN  THE FAMILY COURT IS NOT IN
 SESSION, TO THE MOST ACCESSIBLE MAGISTRATE, IF ANY,  DESIGNATED  BY  THE
 APPELLATE  DIVISION OF THE SUPREME COURT IN THE APPLICABLE DEPARTMENT TO
 CONDUCT A HEARING UNDER SECTION 307.4,  unless  the  officer  takes  the
 child  to a facility for questioning in accordance with paragraph (b) of
 subdivision four. If such child has not allegedly committed a designated
 felony act and such family court is in session, the officer shall either
 forthwith take the child directly to such family court, unless the offi-
 cer takes the child to a facility for  questioning  in  accordance  with
 paragraph  (b)  of  subdivision  four or release the child in accordance
 with paragraph (a) of subdivision four.
   § 6. Subdivision 6 of section 305.2 of the family court act, as  added
 by chapter 920 of the laws of 1982, is amended to read as follows:
   6.  [In  all  other cases] IF SUCH CHILD HAS NOT ALLEGEDLY COMMITTED A
 DESIGNATED FELONY ACT, and in the absence of special circumstances,  the
 officer  shall  release  the  child  in accordance with paragraph (a) of
 subdivision four.
   § 7. Subdivisions 7 and 8 of section 305.2 of the  family  court  act,
 subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
 sion  8 as amended by chapter 299 of the laws of 2020, are amended and a
 new subdivision 10 is added to read as follows:
   7.  IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS  NECES-
 SARY  PRIOR TO TAKING ACTION AUTHORIZED BY SUBDIVISION FOUR OR FIVE, THE
 OFFICER MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE CHIEF  ADMIN-
 ISTRATOR  OF THE COURTS AS A SUITABLE PLACE FOR THE QUESTIONING OF CHIL-
 DREN OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY  RESPONSI-
 BLE  FOR  THE  CARE  OF  THE  CHILD, TO THE CHILD'S RESIDENCE AND THERE,

 A. 5891--A                          3
 
 SUBJECT TO THE REQUIREMENTS OF SUBDIVISION EIGHT, QUESTION  HIM  OR  HER
 FOR A REASONABLE PERIOD OF TIME.
   8.  A  child  shall  not be questioned pursuant to this section unless
 [he] OR UNTIL:
   (A) THE CHILD and a person required to be notified pursuant to  subdi-
 vision three if present, have been advised:
   [(a)] (I) of the child's right to remain silent;
   [(b)]  (II)  that  the  statements  made by the child may be used in a
 court of law;
   [(c)] (III) of the child's right to have an attorney present  at  such
 questioning; and
   [(d)]  (IV)  of the child's right to have an attorney provided for him
 OR HER without charge if he OR SHE is indigent; AND
   (B) THE CHILD HAS CONSULTED WITH LEGAL COUNSEL  IN  PERSON,  BY  TELE-
 PHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   [8.]  9. In determining the suitability of questioning and determining
 the reasonable period of time for questioning such a child, the  child's
 age,  the  presence  or  absence  of his or her parents or other persons
 legally responsible for his or her care, notification pursuant to subdi-
 vision three and, where the child has been interrogated  at  a  facility
 designated  by the chief administrator of the courts as a suitable place
 for the questioning of  juveniles,  whether  the  interrogation  was  in
 compliance  with  the  video-recording  and  disclosure  requirements of
 subdivision five-a of this section  shall  be  included  among  relevant
 considerations.
   10. IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 344.2, A STATE-
 MENT  SHALL  BE  SUPPRESSED: WHEN THE CHILD HAS NOT CONSULTED WITH LEGAL
 COUNSEL AS REQUIRED BY PARAGRAPH (B) OF SUBDIVISION  EIGHT;  OR  WHEN  A
 PERSON  NOTIFIED PURSUANT TO SUBDIVISION THREE, IF PRESENT, HAS NOT BEEN
 ADVISED OF AND VOLUNTARILY WAIVED THE RIGHTS DELINEATED IN PARAGRAPH (A)
 OF SUBDIVISION EIGHT.
   § 8. Section 724 of the family court  act,  the  section  heading  and
 subdivisions  (b) and (c) as amended by chapter 843 of the laws of 1980,
 subdivision (a) as amended by chapter 920 of the  laws  of  1982,  para-
 graphs  (i) and (ii) as amended and paragraph (iv) of subdivision (b) as
 added by section 4 of part E of chapter 57 of the laws  of  2005,  para-
 graph  (iii)  of  subdivision  (b)  as amended by section 7 of part M of
 chapter 56 of the laws of 2017, and subdivision (d) as added by  chapter
 809 of the laws of 1963, is amended to read as follows:
   §  724.  Duties  of  police officer or peace officer after taking into
 custody or on delivery by private person. (a) If a peace  officer  or  a
 police  officer  takes  into  custody or if a person is delivered to him
 under section seven hundred twenty-three, the officer shall immediately,
 BEFORE TRANSPORTING THE CHILD TO ANY OTHER LOCATION, notify  the  parent
 or  other  person  legally  responsible for his care, or the person with
 whom he is domiciled, that he has been taken into custody.
   (b) After making every reasonable effort to give notice  under  [para-
 graph] SUBDIVISION (a) OF THIS SECTION, the officer shall
   (i)  WHEN  THE OFFICER REASONABLY BELIEVES SUCH PARENT OR OTHER PERSON
 LEGALLY RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD  TO
 HIS  OR  HER  HOME, THE POLICE STATION HOUSE, OR ANOTHER LOCATION AGREED
 UPON WITH THE PARENT OR PERSON  LEGALLY  RESPONSIBLE,  AND  release  the
 youth to the custody of [his or her parent or other] SUCH person [legal-
 ly  responsible  for  his or her care] upon the written promise, without
 security, of the person to whose custody the youth is released  that  he

 A. 5891--A                          4
 
 or she will produce the youth before the lead agency designated pursuant
 to section seven hundred thirty-five of this article in that county at a
 time and place specified in writing; or
   (ii) WHEN THE OFFICER DOES NOT REASONABLY BELIEVE SUCH PARENT OR OTHER
 PERSON  LEGALLY  RESPONSIBLE  FOR  THE  CHILD'S CARE WILL APPEAR FOR THE
 CHILD, forthwith and with all reasonable speed take the youth  directly,
 and without first being taken to the police station house, to the desig-
 nated lead agency located in the county in which the act occasioning the
 taking  into  custody allegedly was done[, unless the officer determines
 that it is necessary to question the youth, in which case he or she  may
 take  the  youth  to a facility designated by the chief administrator of
 the courts as a suitable place for the questioning of youth or, upon the
 consent of a parent or other person legally responsible for the care  of
 the  youth, to the youth's residence and there question him or her for a
 reasonable period of time]; or
   (iii) take a youth in need of crisis intervention or respite  services
 to  a  runaway  and  homeless  youth  crisis  services  program or other
 approved respite or crisis program; or
   (iv) take the youth directly to the family court located in the county
 in which the act occasioning the taking into custody was allegedly done,
 provided that the officer affirms on the record that he or she attempted
 to exercise the options identified in paragraphs (i), (ii) and (iii)  of
 this  subdivision, was unable to exercise these options, and the reasons
 therefor.
   (c) In the absence of special circumstances, the officer shall release
 the child in accord with paragraph [(b)] (i) OF SUBDIVISION (B) OF  THIS
 SECTION.
   (d)  IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS NECES-
 SARY PRIOR TO TAKING  ACTION  AUTHORIZED  BY  SUBDIVISION  (B)  OF  THIS
 SECTION,  THE OFFICER MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE
 CHIEF ADMINISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE  QUESTION-
 ING OF CHILDREN OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY
 RESPONSIBLE  FOR  THE  CARE  OF  THE CHILD, TO THE CHILD'S RESIDENCE AND
 THERE, SUBJECT TO THE REQUIREMENTS OF SUBDIVISION (E) OF  THIS  SECTION,
 QUESTION HIM OR HER FOR A REASONABLE PERIOD OF TIME.
   (E) In determining THE SUITABILITY OF QUESTIONING AND DETERMINING what
 is  a  "reasonable  period of time" for questioning a child, the child's
 age [and], the presence or absence of his parents or other person legal-
 ly responsible for his care AND NOTIFICATION PURSUANT TO SUBDIVISION (A)
 OF THIS SECTION shall be included among the relevant considerations.
   (F) NO STATEMENT MADE TO A PEACE OFFICER OR A POLICE OFFICER PRIOR  TO
 THE COMMENCEMENT OF A FACT-FINDING HEARING MAY BE ADMITTED INTO EVIDENCE
 AT A FACT-FINDING HEARING.
   § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
 amended  by section 20 of part WWW of chapter 59 of the laws of 2017, is
 amended to read as follows:
   6. (A) Upon arresting a juvenile  offender  or  a  person  sixteen  or
 commencing  October first, two thousand nineteen, seventeen years of age
 without a warrant, the police officer shall immediately,  BEFORE  TRANS-
 PORTING  THE  CHILD  TO  THE  POLICE STATION HOUSE, notify the parent or
 other person legally responsible for his or her care or the person  with
 whom  he  or she is domiciled, that such JUVENILE offender or person has
 been arrested, and the location of the facility  where  he  or  she  [is
 being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender  or  such  person,  the officer must take him or her to a

 A. 5891--A                          5
 
 facility designated by the chief administrator of the courts as a  suit-
 able  place  for  the  questioning of children or, upon the consent of a
 parent or other person legally responsible for the care of the  juvenile
 or  such  person,  to  his  or  her  residence and there, SUBJECT TO THE
 REQUIREMENTS OF PARAGRAPH (C) OF THIS SUBDIVISION, question him  or  her
 for a reasonable period of time.
   (C)  A juvenile OFFENDER or such person shall not be questioned pursu-
 ant to this section unless OR UNTIL:
   (I) he or she and a person required to be notified pursuant  to  PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)]  (A) of the juvenile offender's or such person's right to remain
 silent;
   [(b)] (B) that the statements made by him or her  may  be  used  in  a
 court of law;
   [(c)]  (C)  of  his  or  her right to have an attorney present at such
 questioning; and
   [(d)] (D) of his or her right to have an attorney provided for him  or
 her without charge if he or she is unable to afford counsel[.];
   (II) THE JUVENILE OFFENDER OR SUCH PERSON HAS CONSULTED WITH AN ATTOR-
 NEY  IN  PERSON, BY TELEPHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION
 MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 person, his or her age, the presence or absence of his or her parents or
 other persons legally responsible for his or her care  and  notification
 pursuant  to  PARAGRAPH  (A) OF this subdivision shall be included among
 relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  10.  Subdivision 5 of section 140.27 of the criminal procedure law,
 as amended by section 23 of part WWW of chapter 59 of the laws of  2017,
 is amended to read as follows:
   5.  (A)  Upon  arresting  a  juvenile  offender or a person sixteen or
 commencing October first, two thousand nineteen, seventeen years of  age
 without  a  warrant,  the peace officer shall immediately, BEFORE TRANS-
 PORTING THE CHILD TO THE POLICE STATION  HOUSE,  notify  the  parent  or
 other  person legally responsible for his or her care or the person with
 whom he or she is domiciled, that such JUVENILE offender or  person  has
 been  arrested,  and  the  location  of the facility where he or she [is
 being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile offender or such person, the officer must take  him  or  her  to  a
 facility  designated by the chief administrator of the courts as a suit-
 able place for the questioning of children or, upon  the  consent  of  a
 parent  or  other  person legally responsible for the care of a juvenile
 offender or such person, to his or her residence and there,  SUBJECT  TO
 THE  REQUIREMENTS  OF PARAGRAPH (C) OF THIS SUBDIVISION, question him or
 her for a reasonable period of time.
   (C) A juvenile offender or such person shall not be questioned  pursu-
 ant to this section unless OR UNTIL:

 A. 5891--A                          6
 
   (I)  the  juvenile offender or such person and a person required to be
 notified pursuant to PARAGRAPH (A) OF this subdivision, if present, have
 been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)]  (B)  that  the statements made by the juvenile offender or such
 person may be used in a court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II) THE JUVENILE OFFENDER OR SUCH PERSON HAS CONSULTED WITH AN ATTOR-
 NEY IN PERSON, BY TELEPHONE OR BY VIDEO  CONFERENCE.  THIS  CONSULTATION
 MAY NOT BE WAIVED.
   (D)  In determining the suitability of questioning and determining the
 reasonable period of time for questioning such a  juvenile  offender  or
 such  person,  his  or  her  age,  the presence or absence of his or her
 parents or other persons legally responsible for his  or  her  care  and
 notification  pursuant  to  PARAGRAPH  (A)  OF this subdivision shall be
 included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
 as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
 is amended to read as follows:
   5.  (A)  If  a police officer takes an arrested juvenile offender or a
 person sixteen or commencing  October  first,  two  [thosuand]  THOUSAND
 nineteen,  seventeen years of age into custody, the police officer shall
 immediately, BEFORE TRANSPORTING THE CHILD TO THE POLICE  STATION  HOUSE
 notify  the  parent  or  other person legally responsible for his or her
 care or the person with whom he or she is domiciled, that such  JUVENILE
 offender  or  person has been arrested, and the location of the facility
 where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile offender or such person the officer must  take  him  or  her  to  a
 facility  designated by the chief administrator of the courts as a suit-
 able place for the questioning of children or, upon  the  consent  of  a
 parent  or other person legally responsible for the care of the juvenile
 offender or such person, to his or her residence and there,  SUBJECT  TO
 THE  REQUIREMENTS  OF PARAGRAPH (C) OF THIS SUBDIVISION, question him or
 her for a reasonable period of time.
   (c) A juvenile offender or such person shall not be questioned  pursu-
 ant to this section unless OR UNTIL:
   (I)  he  or she and a person required to be notified pursuant to PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)] (B) that the statements made by the juvenile  offender  or  such
 person may be used in a court of law;
   [(c)]  (C)  of  his  or  her right to have an attorney present at such
 questioning; and
   [(d)] (D) of his or her right to have an attorney provided for him  or
 her without charge if he or she is unable to afford counsel[.]; AND

 A. 5891--A                          7
 
   (II) THE JUVENILE OFFENDER OR SUCH PERSON HAS CONSULTED WITH AN ATTOR-
 NEY  IN  PERSON, BY TELEPHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION
 MAY NOT BE WAIVED.
   (D)  In determining the suitability of questioning and determining the
 reasonable period of time for questioning such a  juvenile  offender  or
 such  person,  his  or  her  age,  the presence or absence of his or her
 parents or other persons legally responsible for his  or  her  care  and
 notification  pursuant  to  PARAGRAPH  (A)  OF this subdivision shall be
 included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  12.  This  act  shall take effect April 1, 2022; provided, however,
 that if chapter 299 of the laws of 2020 shall not have taken  effect  on
 or  before  such  date  then  the amendments to subdivision 8 of section
 305.2 of the family court act made by section seven of  this  act  shall
 take  effect  on the same date and in the same manner as such chapter of
 the laws of 2020 takes effect.

Co-Sponsors

A5891B - Details

See Senate Version of this Bill:: S2800
Current Committee:: Senate Finance
Law Section:: Family Court Act
Laws Affected:: Amd §§305.2 & 724, Fam Ct Act; amd §§140.20, 140.27 & 140.40, CP L
Versions Introduced in Other Legislative Sessions:: 2019-2020: A6982, S4980
2023-2024: A1963, S1099

A5891B - Summary

Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles and sixteen and seventeen year olds into custody.

A5891B - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5891--B
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 1, 2021
                                ___________
 
 Introduced  by  M. of A. JOYNER, SIMON, DICKENS, CARROLL, AUBRY, BARRON,
   O'DONNELL, DINOWITZ, FORREST -- read once and referred to the  Commit-
   tee  on  Children  and Families -- committee discharged, bill amended,
   ordered reprinted as amended and  recommitted  to  said  committee  --
   reported   and  referred  to  the  Committee  on  Codes  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN ACT to amend the family court act and the criminal procedure law,  in
   relation  to  the custodial interrogation of juveniles by law enforce-
   ment
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 3 of section 305.2 of the family court act, as
 added by chapter 920 of the laws of 1982, is amended to read as follows:
   3. If an officer takes such child into custody or if a child is deliv-
 ered to him OR HER under section 305.1, he  OR  SHE  shall  immediately,
 BEFORE  TRANSPORTING  THE  CHILD TO THE POLICE STATION HOUSE, notify the
 parent or other person legally responsible for the child's care,  or  if
 such  legally responsible person is unavailable the person with whom the
 child resides, that the child has been taken into custody.
   § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  added by chapter 920 of the laws of 1982, is amended to
 read as follows:
   (a) WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR  OTHER  PERSON
 LEGALLY  RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD TO
 HIS OR HER HOME, THE STATION HOUSE, OR ANOTHER LOCATION AGREED UPON WITH
 THE PARENT OR PERSON LEGALLY RESPONSIBLE, AND release the child  to  the
 custody  of  [his  parents  or  other person legally responsible for his
 care] SUCH PERSON upon the issuance in accordance with section 307.1  of
 a  family  court  appearance ticket to the child and the person to whose
 custody the child is released; or
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD03836-08-1

 A. 5891--B                          2
 
   § 3. Paragraph (b) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  amended  by section 63 of part WWW of chapter 59 of the
 laws of 2017, is amended to read as follows:
   (b)  WHEN  THE OFFICER DOES NOT REASONABLY BELIEVE THE PARENT OR OTHER
 PERSON LEGALLY RESPONSIBLE FOR THE CHILD'S  CARE  WILL  APPEAR  FOR  THE
 CHILD,  forthwith and with all reasonable speed take the child directly,
 and without his OR HER first being taken to the police station house, to
 the family court located in the county in which the act occasioning  the
 taking  into  custody allegedly was committed, or, when the family court
 is not in session, to the most accessible magistrate, if any, designated
 by the appellate division of the supreme court in the applicable depart-
 ment to conduct a hearing under section 307.4 [of this part, unless  the
 officer  determines that it is necessary to question the child, in which
 case he or she may take the child to a facility designated by the  chief
 administrator  of  the courts as a suitable place for the questioning of
 children or, upon the consent  of  a  parent  or  other  person  legally
 responsible  for  the  care  of  the child, to the child's residence and
 there question him or her for a reasonable period of time]; or
   § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
 court  act,  as amended by section 3 of part G of chapter 58 of the laws
 of 2010, is amended to read as follows:
   (c) WHEN THE OFFICER DOES NOT RELEASE THE CHILD PURSUANT TO  PARAGRAPH
 (A)  OF  THIS  SUBDIVISION,  OR  TAKE  THE CHILD TO FAMILY COURT OR TO A
 MAGISTRATE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION, take the child
 to a place certified by the office of children and family services as  a
 juvenile detention facility for the reception of children; or
   §  5.  Subdivision  5  of  section  305.2  of the family court act, as
 amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
 follows:
   5.  If  such  child has allegedly committed a designated felony act as
 defined in subdivision eight of section 301.2, and the family  court  in
 the  county  is  in  session, the officer shall forthwith take the child
 directly to such family court OR,  WHEN  THE  FAMILY  COURT  IS  NOT  IN
 SESSION,  TO  THE  MOST ACCESSIBLE MAGISTRATE, IF ANY, DESIGNATED BY THE
 APPELLATE DIVISION OF THE SUPREME COURT IN THE APPLICABLE DEPARTMENT  TO
 CONDUCT  A  HEARING  UNDER  SECTION 307.4[, unless the officer takes the
 child to a facility for questioning in accordance with paragraph (b)  of
 subdivision four. If such child has not allegedly committed a designated
 felony act and such family court is in session, the officer shall either
 forthwith take the child directly to such family court, unless the offi-
 cer  takes  the  child  to a facility for questioning in accordance with
 paragraph (b) of subdivision four or release  the  child  in  accordance
 with paragraph (a) of subdivision four].
   §  6. Subdivision 6 of section 305.2 of the family court act, as added
 by chapter 920 of the laws of 1982, is amended to read as follows:
   6. [In all other cases] IF SUCH CHILD HAS NOT  ALLEGEDLY  COMMITTED  A
 DESIGNATED  FELONY ACT, and in the absence of special circumstances, the
 officer shall release the child in  accordance  with  paragraph  (a)  of
 subdivision four.
   §  7.  Subdivisions  7 and 8 of section 305.2 of the family court act,
 subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
 sion 8 as amended by chapter 299 of the laws of 2020, are amended and  a
 new subdivision 10 is added to read as follows:
   7.   IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS NECES-
 SARY PRIOR TO TAKING ACTION AUTHORIZED BY SUBDIVISION FOUR OR FIVE,  THE
 OFFICER  MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE CHIEF ADMIN-

 A. 5891--B                          3
 
 ISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE QUESTIONING OF  CHIL-
 DREN  OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY RESPONSI-
 BLE FOR THE CARE OF THE CHILD,  TO  THE  CHILD'S  RESIDENCE  AND  THERE,
 SUBJECT  TO  THE  REQUIREMENTS OF SUBDIVISION EIGHT, QUESTION HIM OR HER
 FOR A REASONABLE PERIOD OF TIME.
   8. A child shall not be questioned pursuant  to  this  section  unless
 [he] OR UNTIL:
   (A)  THE CHILD and a person required to be notified pursuant to subdi-
 vision three if present, have been advised:
   [(a)] (I) of the child's right to remain silent;
   [(b)] (II) that the statements made by the child  may  be  used  in  a
 court of law;
   [(c)]  (III)  of the child's right to have an attorney present at such
 questioning; and
   [(d)] (IV) of the child's right to have an attorney provided  for  him
 OR HER without charge if he OR SHE is indigent; AND
   (B)  THE  CHILD  HAS  CONSULTED WITH LEGAL COUNSEL IN PERSON, BY TELE-
 PHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   [8.] 9. In determining the suitability of questioning and  determining
 the  reasonable period of time for questioning such a child, the child's
 age, the presence or absence of his or  her  parents  or  other  persons
 legally responsible for his or her care, notification pursuant to subdi-
 vision  three  and,  where the child has been interrogated at a facility
 designated by the chief administrator of the courts as a suitable  place
 for  the  questioning  of  juveniles,  whether  the interrogation was in
 compliance with  the  video-recording  and  disclosure  requirements  of
 subdivision  five-a  of  this  section  shall be included among relevant
 considerations.
   10. IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 344.2, A STATE-
 MENT SHALL BE SUPPRESSED: WHEN THE CHILD HAS NOT  CONSULTED  WITH  LEGAL
 COUNSEL  AS  REQUIRED  BY  PARAGRAPH (B) OF SUBDIVISION EIGHT; OR WHEN A
 PERSON NOTIFIED PURSUANT TO SUBDIVISION THREE, IF PRESENT, HAS NOT  BEEN
 ADVISED OF AND VOLUNTARILY WAIVED THE RIGHTS DELINEATED IN PARAGRAPH (A)
 OF SUBDIVISION EIGHT.
   §  8.  Section  724  of  the family court act, the section heading and
 subdivisions (b) and (c) as amended by chapter 843 of the laws of  1980,
 subdivision  (a)  as  amended  by chapter 920 of the laws of 1982, para-
 graphs (i) and (ii) as amended and paragraph (iv) of subdivision (b)  as
 added  by  section  4 of part E of chapter 57 of the laws of 2005, para-
 graph (iii) of subdivision (b) as amended by section  7  of  part  M  of
 chapter  56 of the laws of 2017, and subdivision (d) as added by chapter
 809 of the laws of 1963, is amended to read as follows:
   § 724. Duties of police officer or peace  officer  after  taking  into
 custody  or  on  delivery by private person. (a) If a peace officer or a
 police officer takes into custody or if a person is delivered to him  OR
 HER  under  section  seven hundred twenty-three, the officer shall imme-
 diately, BEFORE TRANSPORTING THE CHILD TO ANY OTHER LOCATION, notify the
 parent or other person legally responsible for his OR HER care,  or  the
 person  with  whom he OR SHE is domiciled, that he OR SHE has been taken
 into custody.
   (b) After making every reasonable effort to give notice  under  [para-
 graph] SUBDIVISION (a) OF THIS SECTION, the officer shall
   (i)  WHEN  THE OFFICER REASONABLY BELIEVES SUCH PARENT OR OTHER PERSON
 LEGALLY RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD  TO
 HIS  OR  HER  HOME, THE POLICE STATION HOUSE, OR ANOTHER LOCATION AGREED

 A. 5891--B                          4
 
 UPON WITH THE PARENT OR PERSON  LEGALLY  RESPONSIBLE,  AND  release  the
 youth to the custody of [his or her parent or other] SUCH person [legal-
 ly  responsible  for  his or her care] upon the written promise, without
 security,  of  the person to whose custody the youth is released that he
 or she will produce the youth before the lead agency designated pursuant
 to section seven hundred thirty-five of this article in that county at a
 time and place specified in writing; or
   (ii) WHEN THE OFFICER DOES NOT REASONABLY BELIEVE SUCH PARENT OR OTHER
 PERSON LEGALLY RESPONSIBLE FOR THE CHILD'S  CARE  WILL  APPEAR  FOR  THE
 CHILD,  forthwith and with all reasonable speed take the youth directly,
 and without first being taken to the police station house, to the desig-
 nated lead agency located in the county in which the act occasioning the
 taking into custody allegedly was done[, unless the  officer  determines
 that  it is necessary to question the youth, in which case he or she may
 take the youth to a facility designated by the  chief  administrator  of
 the courts as a suitable place for the questioning of youth or, upon the
 consent  of a parent or other person legally responsible for the care of
 the youth, to the youth's residence and there question him or her for  a
 reasonable period of time]; or
   (iii)  take a youth in need of crisis intervention or respite services
 to a runaway  and  homeless  youth  crisis  services  program  or  other
 approved respite or crisis program; or
   (iv) take the youth directly to the family court located in the county
 in which the act occasioning the taking into custody was allegedly done,
 provided that the officer affirms on the record that he or she attempted
 to  exercise the options identified in paragraphs (i), (ii) and (iii) of
 this subdivision, was unable to exercise these options, and the  reasons
 therefor.
   (c) In the absence of special circumstances, the officer shall release
 the  child in accord with paragraph [(b)] (i) OF SUBDIVISION (B) OF THIS
 SECTION.
   (d) IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS  NECES-
 SARY  PRIOR  TO  TAKING  ACTION  AUTHORIZED  BY  SUBDIVISION (B) OF THIS
 SECTION, THE OFFICER MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY  THE
 CHIEF  ADMINISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE QUESTION-
 ING OF CHILDREN OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY
 RESPONSIBLE FOR THE CARE OF THE CHILD,  TO  THE  CHILD'S  RESIDENCE  AND
 THERE,  SUBJECT  TO THE REQUIREMENTS OF SUBDIVISION (E) OF THIS SECTION,
 QUESTION HIM OR HER FOR A REASONABLE PERIOD OF TIME.
   (E) In determining THE SUITABILITY OF QUESTIONING AND DETERMINING what
 is a "reasonable period of time" for questioning a  child,  the  child's
 age [and], the presence or absence of his OR HER parents or other person
 legally  responsible  for  his  OR HER care AND NOTIFICATION PURSUANT TO
 SUBDIVISION (A) OF THIS SECTION shall be  included  among  the  relevant
 considerations.
   (F)  NO STATEMENT MADE TO A PEACE OFFICER OR A POLICE OFFICER PRIOR TO
 THE COMMENCEMENT OF A FACT-FINDING HEARING MAY BE ADMITTED INTO EVIDENCE
 AT A FACT-FINDING HEARING.
   § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
 amended by section 20 of part WWW of chapter 59 of the laws of 2017,  is
 amended to read as follows:
   6.  (A)  Upon  arresting  a  juvenile  offender or a person sixteen or
 [commencing October first, two thousand nineteen,]  seventeen  years  of
 age  without  a  warrant,  the  police officer shall immediately, BEFORE
 TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE, notify the parent or
 other person legally responsible for his or her care or the person  with

 A. 5891--B                          5
 
 whom  he  or  she  is domiciled, that such JUVENILE offender or [person]
 SIXTEEN OR SEVENTEEN YEAR OLD has been arrested, and the location of the
 facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD, the offi-
 cer must take him or her to a facility designated by the chief  adminis-
 trator of the courts as a suitable place for the questioning of children
 or, upon the consent of a parent or other person legally responsible for
 the care of the juvenile or [such person] SIXTEEN OR SEVENTEEN YEAR OLD,
 to  his or her residence and there, SUBJECT TO THE REQUIREMENTS OF PARA-
 GRAPH (C) OF THIS SUBDIVISION, question him  or  her  for  a  reasonable
 period of time.
   (C) A juvenile OFFENDER or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  he  or she and a person required to be notified pursuant to PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)] (A) of the juvenile offender's or  [such  person's]  SIXTEEN  OR
 SEVENTEEN YEAR OLD'S right to remain silent;
   [(b)]  (B)  that  the  statements  made by him or her may be used in a
 court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.];
   (II) THE JUVENILE OFFENDER  OR  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  HAS
 CONSULTED  WITH AN ATTORNEY IN PERSON, BY TELEPHONE, OR BY VIDEO CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 [person] SIXTEEN OR SEVENTEEN YEAR OLD, his or her age, the presence  or
 absence  of  his or her parents or other persons legally responsible for
 his or her care and notification  pursuant  to  PARAGRAPH  (A)  OF  this
 subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE  WITHIN  THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45 OF THIS
 CHAPTER, A STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD  HAS  NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION,  IF  PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY WAIVED THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
 as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
 is amended to read as follows:
   5. (A) Upon arresting a juvenile  offender  or  a  person  sixteen  or
 [commencing  October  first,  two thousand nineteen,] seventeen years of
 age without a warrant,  the  peace  officer  shall  immediately,  BEFORE
 TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE, notify the parent or
 other  person legally responsible for his or her care or the person with
 whom he or she is domiciled, that such  JUVENILE  offender  or  [person]
 SIXTEEN OR SEVENTEEN YEAR OLD has been arrested, and the location of the
 facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD, the offi-
 cer must take him or her to a facility designated by the chief  adminis-
 trator of the courts as a suitable place for the questioning of children
 or, upon the consent of a parent or other person legally responsible for

 A. 5891--B                          6
 
 the  care  of  a juvenile offender or [such person] SIXTEEN OR SEVENTEEN
 YEAR OLD, to his or her residence and there, SUBJECT TO THE REQUIREMENTS
 OF PARAGRAPH (C) OF THIS SUBDIVISION, question him or her for a  reason-
 able period of time.
   (C) A juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  the  juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR
 OLD and a person required to be notified pursuant to  PARAGRAPH  (A)  OF
 this subdivision, if present, have been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)]  (B)  that the statements made by the juvenile offender or [such
 person] SIXTEEN OR SEVENTEEN YEAR OLD may be used in a court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II) THE JUVENILE OFFENDER  OR  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  HAS
 CONSULTED  WITH  AN ATTORNEY IN PERSON, BY TELEPHONE OR BY VIDEO CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 [such person] SIXTEEN OR SEVENTEEN YEAR OLD his or her age, the presence
 or absence of his or her parents or other  persons  legally  responsible
 for  his  or her care and notification pursuant to PARAGRAPH (A) OF this
 subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
 as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
 is amended to read as follows:
   5.  (A)  If  a police officer takes an arrested juvenile offender or a
 person sixteen or [commencing October  first,  two  thousand  nineteen,]
 seventeen years of age into custody, the police officer shall immediate-
 ly, BEFORE TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE notify the
 parent  or  other  person legally responsible for his or her care or the
 person with whom he or she is domiciled, that such JUVENILE offender  or
 [person]  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  has  been arrested, and the
 location of the facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD the officer
 must take him or her to a facility designated by the chief administrator
 of the courts as a suitable place for the questioning  of  children  or,
 upon the consent of a parent or other person legally responsible for the
 care of the juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR
 OLD,  to  his or her residence and there, SUBJECT TO THE REQUIREMENTS OF
 PARAGRAPH (C) OF THIS SUBDIVISION, question him or her for a  reasonable
 period of time.
   (c) A juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  he  or she and a person required to be notified pursuant to PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:

 A. 5891--B                          7
 
   [(a)] (A) of his or her right to remain silent;
   [(b)]  (B)  that the statements made by the juvenile offender or [such
 person] SIXTEEN OR SEVENTEEN YEAR OLD may be used in a court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II) THE JUVENILE OFFENDER  OR  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  HAS
 CONSULTED  WITH AN ATTORNEY IN PERSON, BY TELEPHONE, OR BY VIDEO CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 [such person] SIXTEEN OR SEVENTEEN YEAR OLD, his or her age,  the  pres-
 ence or absence of his or her parents or other persons legally responsi-
 ble  for  his  or her care and notification pursuant to PARAGRAPH (A) OF
 this subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  12.  This  act  shall take effect April 1, 2022; provided, however,
 that if chapter 299 of the laws of 2020 shall not have taken  effect  on
 or  before  such  date  then  the amendments to subdivision 8 of section
 305.2 of the family court act made by section seven of  this  act  shall
 take  effect  on the same date and in the same manner as such chapter of
 the laws of 2020 takes effect.

Co-Sponsors

A5891C (ACTIVE) - Details

See Senate Version of this Bill:: S2800
Current Committee:: Senate Finance
Law Section:: Family Court Act
Laws Affected:: Amd §§305.2 & 724, Fam Ct Act; amd §§140.20, 140.27 & 140.40, CP L
Versions Introduced in Other Legislative Sessions:: 2019-2020: A6982, S4980
2023-2024: A1963, S1099

A5891C (ACTIVE) - Summary

Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles and sixteen and seventeen year olds into custody.

A5891C (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5891--C
                                                         Cal. No. 194
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               March 1, 2021
                                ___________
 
 Introduced   by  M.  of  A.  JOYNER,  SIMON,  DICKENS,  CARROLL,  AUBRY,
   O'DONNELL, DINOWITZ, FORREST, JACKSON, HEVESI, MITAYNES,  GONZALEZ-RO-
   JAS, OTIS, EPSTEIN, KELLES, CRUZ, REYES, ZINERMAN, SEAWRIGHT, PRETLOW,
   ANDERSON,  BURDICK,  BURGOS -- read once and referred to the Committee
   on Children  and  Families  --  committee  discharged,  bill  amended,
   ordered  reprinted  as  amended  and  recommitted to said committee --
   reported  and  referred  to  the  Committee  on  Codes  --   committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to  said  committee -- ordered to a third reading, amended and ordered
   reprinted, retaining its place on the order of third reading
 
 AN ACT to amend the family court act and the criminal procedure law,  in
   relation  to  the custodial interrogation of juveniles by law enforce-
   ment
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 3 of section 305.2 of the family court act, as
 added by chapter 920 of the laws of 1982, is amended to read as follows:
   3. If an officer takes such child into custody or if a child is deliv-
 ered to him OR HER under section 305.1, he  OR  SHE  shall  immediately,
 BEFORE  TRANSPORTING  THE  CHILD TO THE POLICE STATION HOUSE, notify the
 parent or other person legally responsible for the child's care,  or  if
 such  legally responsible person is unavailable the person with whom the
 child resides, that the child has been taken into custody.
   § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  added by chapter 920 of the laws of 1982, is amended to
 read as follows:
   (a) WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR  OTHER  PERSON
 LEGALLY  RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD TO
 HIS OR HER HOME, THE STATION HOUSE, OR ANOTHER LOCATION AGREED UPON WITH
 THE PARENT OR PERSON LEGALLY RESPONSIBLE, AND release the child  to  the
 custody  of  [his  parents  or  other person legally responsible for his

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

                                                            LBD03836-14-2
 A. 5891--C                          2

 care] SUCH PERSON upon the issuance in accordance with section 307.1  of
 a  family  court  appearance ticket to the child and the person to whose
 custody the child is released; or
   §  3.  Paragraph  (b)  of subdivision 4 of section 305.2 of the family
 court act, as amended by section 63 of part WWW of  chapter  59  of  the
 laws of 2017, is amended to read as follows:
   (b)  WHEN  THE OFFICER DOES NOT REASONABLY BELIEVE THE PARENT OR OTHER
 PERSON LEGALLY RESPONSIBLE FOR THE CHILD'S  CARE  WILL  APPEAR  FOR  THE
 CHILD,  forthwith and with all reasonable speed take the child directly,
 and without his OR HER first being taken to the police station house, to
 the family court located in the county in which the act occasioning  the
 taking  into  custody allegedly was committed, or, when the family court
 is not in session, to the most accessible magistrate, if any, designated
 by the appellate division of the supreme court in the applicable depart-
 ment to conduct a hearing under section 307.4 [of this part, unless  the
 officer  determines that it is necessary to question the child, in which
 case he or she may take the child to a facility designated by the  chief
 administrator  of  the courts as a suitable place for the questioning of
 children or, upon the consent  of  a  parent  or  other  person  legally
 responsible  for  the  care  of  the child, to the child's residence and
 there question him or her for a reasonable period of time]; or
   § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
 court  act,  as amended by section 3 of part G of chapter 58 of the laws
 of 2010, is amended to read as follows:
   (c) WHEN THE OFFICER DOES NOT RELEASE THE CHILD PURSUANT TO  PARAGRAPH
 (A)  OF  THIS  SUBDIVISION,  OR  TAKE  THE CHILD TO FAMILY COURT OR TO A
 MAGISTRATE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION, take the child
 to a place certified by the office of children and family services as  a
 juvenile detention facility for the reception of children; or
   §  5.  Subdivision  5  of  section  305.2  of the family court act, as
 amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
 follows:
   5.  If  such  child has allegedly committed a designated felony act as
 defined in subdivision eight of section 301.2, and the family  court  in
 the  county  is  in  session, the officer shall forthwith take the child
 directly to such family court[, unless the officer takes the child to  a
 facility for questioning in accordance with paragraph (b) of subdivision
 four.  If such child has not allegedly committed a designated felony act
 and such family court is in session, the officer shall either  forthwith
 take  the  child directly to such family court, unless the officer takes
 the child to a facility for questioning in accordance with paragraph (b)
 of subdivision four or release the child in  accordance  with  paragraph
 (a) of subdivision four] OR, WHEN THE FAMILY COURT IS NOT IN SESSION, TO
 THE  MOST  ACCESSIBLE  MAGISTRATE,  IF  ANY, DESIGNATED BY THE APPELLATE
 DIVISION OF THE SUPREME COURT IN THE APPLICABLE DEPARTMENT TO CONDUCT  A
 HEARING UNDER SECTION 307.4.
   §  6. Subdivision 6 of section 305.2 of the family court act, as added
 by chapter 920 of the laws of 1982, is amended to read as follows:
   6. [In all other cases] IF SUCH CHILD HAS NOT  ALLEGEDLY  COMMITTED  A
 DESIGNATED  FELONY ACT, and in the absence of special circumstances, the
 officer shall release the child in  accordance  with  paragraph  (a)  of
 subdivision four.
   §  7.  Subdivisions  7 and 8 of section 305.2 of the family court act,
 subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
 sion 8 as amended by chapter 299 of the laws of 2020, are amended and  a
 new subdivision 10 is added to read as follows:
 A. 5891--C                          3
 
   7.   IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS NECES-
 SARY PRIOR TO TAKING ACTION AUTHORIZED BY SUBDIVISION FOUR OR FIVE,  THE
 OFFICER  MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE CHIEF ADMIN-
 ISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE QUESTIONING OF  CHIL-
 DREN  OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY RESPONSI-
 BLE FOR THE CARE OF THE CHILD,  TO  THE  CHILD'S  RESIDENCE  AND  THERE,
 SUBJECT  TO  THE  REQUIREMENTS OF SUBDIVISION EIGHT, QUESTION HIM OR HER
 FOR A REASONABLE PERIOD OF TIME.
   8. A child shall not be questioned pursuant  to  this  section  unless
 [he] OR UNTIL:
   (A)  THE CHILD and a person required to be notified pursuant to subdi-
 vision three if present, have been advised:
   [(a)] (I) of the child's right to remain silent;
   [(b)] (II) that the statements made by the child  may  be  used  in  a
 court of law;
   [(c)]  (III)  of the child's right to have an attorney present at such
 questioning; and
   [(d)] (IV) of the child's right to have an attorney provided  for  him
 OR HER without charge if he OR SHE is indigent; AND
   (B)  THE  CHILD  HAS  CONSULTED WITH LEGAL COUNSEL IN PERSON, BY TELE-
 PHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   [8.] 9. In determining the suitability of questioning and  determining
 the  reasonable period of time for questioning such a child, the child's
 age, the presence or absence of his or  her  parents  or  other  persons
 legally responsible for his or her care, notification pursuant to subdi-
 vision  three  and,  where the child has been interrogated at a facility
 designated by the chief administrator of the courts as a suitable  place
 for  the  questioning  of  juveniles,  whether  the interrogation was in
 compliance with  the  video-recording  and  disclosure  requirements  of
 subdivision  five-a  of  this  section  shall be included among relevant
 considerations.
   10. IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 344.2, A STATE-
 MENT SHALL BE SUPPRESSED: WHEN THE CHILD HAS NOT  CONSULTED  WITH  LEGAL
 COUNSEL  AS  REQUIRED  BY  PARAGRAPH (B) OF SUBDIVISION EIGHT; OR WHEN A
 PERSON NOTIFIED PURSUANT TO SUBDIVISION THREE, IF PRESENT, HAS NOT  BEEN
 ADVISED OF AND VOLUNTARILY WAIVED THE RIGHTS DELINEATED IN PARAGRAPH (A)
 OF SUBDIVISION EIGHT.
   §  8.  Section  724  of  the family court act, the section heading and
 subdivisions (b) and (c) as amended by chapter 843 of the laws of  1980,
 subdivision  (a)  as  amended  by chapter 920 of the laws of 1982, para-
 graphs (i) and (ii) as amended and paragraph (iv) of subdivision (b)  as
 added  by  section  4 of part E of chapter 57 of the laws of 2005, para-
 graph (iii) of subdivision (b) as amended by section  7  of  part  M  of
 chapter  56 of the laws of 2017, and subdivision (d) as added by chapter
 809 of the laws of 1963, is amended to read as follows:
   § 724. Duties of police officer or peace  officer  after  taking  into
 custody  or  on  delivery by private person. (a) If a peace officer or a
 police officer takes into custody or if a person is delivered to him  OR
 HER  under  section  seven hundred twenty-three, the officer shall imme-
 diately, BEFORE TRANSPORTING THE CHILD TO ANY OTHER LOCATION, notify the
 parent or other person legally responsible for his OR HER care,  or  the
 person  with  whom he OR SHE is domiciled, that he OR SHE has been taken
 into custody.
   (b) After making every reasonable effort to give notice  under  [para-
 graph] SUBDIVISION (a) OF THIS SECTION, the officer shall
 A. 5891--C                          4
 
   (i)  WHEN  THE OFFICER REASONABLY BELIEVES SUCH PARENT OR OTHER PERSON
 LEGALLY RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD  TO
 HIS  OR  HER  HOME, THE POLICE STATION HOUSE, OR ANOTHER LOCATION AGREED
 UPON WITH THE PARENT OR PERSON  LEGALLY  RESPONSIBLE,  AND  release  the
 youth to the custody of [his or her parent or other] SUCH person [legal-
 ly  responsible  for  his or her care] upon the written promise, without
 security, of the person to whose custody the youth is released  that  he
 or she will produce the youth before the lead agency designated pursuant
 to section seven hundred thirty-five of this article in that county at a
 time and place specified in writing; or
   (ii) WHEN THE OFFICER DOES NOT REASONABLY BELIEVE SUCH PARENT OR OTHER
 PERSON  LEGALLY  RESPONSIBLE  FOR  THE  CHILD'S CARE WILL APPEAR FOR THE
 CHILD, forthwith and with all reasonable speed take the youth  directly,
 and without first being taken to the police station house, to the desig-
 nated lead agency located in the county in which the act occasioning the
 taking  into  custody allegedly was done[, unless the officer determines
 that it is necessary to question the youth, in which case he or she  may
 take  the  youth  to a facility designated by the chief administrator of
 the courts as a suitable place for the questioning of youth or, upon the
 consent of a parent or other person legally responsible for the care  of
 the  youth, to the youth's residence and there question him or her for a
 reasonable period of time]; or
   (iii) take a youth in need of crisis intervention or respite  services
 to  a  runaway  and  homeless  youth  crisis  services  program or other
 approved respite or crisis program; or
   (iv) take the youth directly to the family court located in the county
 in which the act occasioning the taking into custody was allegedly done,
 provided that the officer affirms on the record that he or she attempted
 to exercise the options identified in paragraphs (i), (ii) and (iii)  of
 this  subdivision, was unable to exercise these options, and the reasons
 therefor.
   (c) In the absence of special circumstances, the officer shall release
 the child in accord with paragraph [(b)] (i) OF SUBDIVISION (B) OF  THIS
 SECTION.
   (d)  IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS NECES-
 SARY PRIOR TO TAKING  ACTION  AUTHORIZED  BY  SUBDIVISION  (B)  OF  THIS
 SECTION,  THE OFFICER MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE
 CHIEF ADMINISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE  QUESTION-
 ING OF CHILDREN OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY
 RESPONSIBLE  FOR  THE  CARE  OF  THE CHILD, TO THE CHILD'S RESIDENCE AND
 THERE, SUBJECT TO THE REQUIREMENTS OF SUBDIVISION (E) OF  THIS  SECTION,
 QUESTION HIM OR HER FOR A REASONABLE PERIOD OF TIME.
   (E) In determining THE SUITABILITY OF QUESTIONING AND DETERMINING what
 is  a  "reasonable  period of time" for questioning a child, the child's
 age [and], the presence or absence of his OR HER parents or other person
 legally responsible for his OR HER care  AND  NOTIFICATION  PURSUANT  TO
 SUBDIVISION  (A)  OF  THIS  SECTION shall be included among the relevant
 considerations.
   (F) NO STATEMENT MADE TO A PEACE OFFICER OR A POLICE OFFICER PRIOR  TO
 THE COMMENCEMENT OF A FACT-FINDING HEARING MAY BE ADMITTED INTO EVIDENCE
 AT A FACT-FINDING HEARING.
   § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
 amended  by section 20 of part WWW of chapter 59 of the laws of 2017, is
 amended to read as follows:
   6. (A) Upon arresting a juvenile  offender  or  a  person  sixteen  or
 [commencing  October  first,  two thousand nineteen,] seventeen years of
 A. 5891--C                          5
 
 age without a warrant, the  police  officer  shall  immediately,  BEFORE
 TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE, notify the parent or
 other  person legally responsible for his or her care or the person with
 whom  he  or  she  is domiciled, that such JUVENILE offender or [person]
 SIXTEEN OR SEVENTEEN YEAR OLD has been arrested, and the location of the
 facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD, the  offi-
 cer  must take him or her to a facility designated by the chief adminis-
 trator of the courts as a suitable place for the questioning of children
 or, upon the consent of a parent or other person legally responsible for
 the care of the juvenile or [such person] SIXTEEN OR SEVENTEEN YEAR OLD,
 to his or her residence and there, SUBJECT TO THE REQUIREMENTS OF  PARA-
 GRAPH  (C)  OF  THIS  SUBDIVISION,  question him or her for a reasonable
 period of time.
   (C) A juvenile OFFENDER or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I) he or she and a person required to be notified pursuant  to  PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)]  (A)  of  the  juvenile offender's or [such person's] SIXTEEN OR
 SEVENTEEN YEAR OLD'S right to remain silent;
   [(b)] (B) that the statements made by him or her  may  be  used  in  a
 court of law;
   [(c)]  (C)  of  his  or  her right to have an attorney present at such
 questioning; and
   [(d)] (D) of his or her right to have an attorney provided for him  or
 her without charge if he or she is unable to afford counsel[.];
   (II)  THE  JUVENILE  OFFENDER  OR  SIXTEEN  OR  SEVENTEEN YEAR OLD HAS
 CONSULTED WITH AN ATTORNEY IN PERSON, BY TELEPHONE, OR BY VIDEO  CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D)  In determining the suitability of questioning and determining the
 reasonable period of time for questioning such a  juvenile  offender  or
 [person]  SIXTEEN OR SEVENTEEN YEAR OLD, his or her age, the presence or
 absence of his or her parents or other persons legally  responsible  for
 his  or  her  care  and  notification  pursuant to PARAGRAPH (A) OF this
 subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  10.  Subdivision 5 of section 140.27 of the criminal procedure law,
 as amended by section 23 of part WWW of chapter 59 of the laws of  2017,
 is amended to read as follows:
   5.  (A)  Upon  arresting  a  juvenile  offender or a person sixteen or
 [commencing October first, two thousand nineteen,]  seventeen  years  of
 age  without  a  warrant,  the  peace  officer shall immediately, BEFORE
 TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE, notify the parent or
 other person legally responsible for his or her care or the person  with
 whom  he  or  she  is domiciled, that such JUVENILE offender or [person]
 SIXTEEN OR SEVENTEEN YEAR OLD has been arrested, and the location of the
 facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD, the  offi-
 A. 5891--C                          6
 
 cer  must take him or her to a facility designated by the chief adminis-
 trator of the courts as a suitable place for the questioning of children
 or, upon the consent of a parent or other person legally responsible for
 the  care  of  a juvenile offender or [such person] SIXTEEN OR SEVENTEEN
 YEAR OLD, to his or her residence and there, SUBJECT TO THE REQUIREMENTS
 OF PARAGRAPH (C) OF THIS SUBDIVISION, question him or her for a  reason-
 able period of time.
   (C) A juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  the  juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR
 OLD and a person required to be notified pursuant to  PARAGRAPH  (A)  OF
 this subdivision, if present, have been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)]  (B)  that the statements made by the juvenile offender or [such
 person] SIXTEEN OR SEVENTEEN YEAR OLD may be used in a court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II) THE JUVENILE OFFENDER  OR  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  HAS
 CONSULTED  WITH  AN ATTORNEY IN PERSON, BY TELEPHONE OR BY VIDEO CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 [such person] SIXTEEN OR SEVENTEEN YEAR OLD his or her age, the presence
 or absence of his or her parents or other  persons  legally  responsible
 for  his  or her care and notification pursuant to PARAGRAPH (A) OF this
 subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
 as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
 is amended to read as follows:
   5.  (A)  If  a police officer takes an arrested juvenile offender or a
 person sixteen or [commencing October  first,  two  thousand  nineteen,]
 seventeen years of age into custody, the police officer shall immediate-
 ly, BEFORE TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE notify the
 parent  or  other  person legally responsible for his or her care or the
 person with whom he or she is domiciled, that such JUVENILE offender  or
 [person]  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  has  been arrested, and the
 location of the facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD the officer
 must take him or her to a facility designated by the chief administrator
 of the courts as a suitable place for the questioning  of  children  or,
 upon the consent of a parent or other person legally responsible for the
 care of the juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR
 OLD,  to  his or her residence and there, SUBJECT TO THE REQUIREMENTS OF
 PARAGRAPH (C) OF THIS SUBDIVISION, question him or her for a  reasonable
 period of time.
 A. 5891--C                          7
 
   (c) A juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  he  or she and a person required to be notified pursuant to PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)] (B) that the statements made by the juvenile offender  or  [such
 person] SIXTEEN OR SEVENTEEN YEAR OLD may be used in a court of law;
   [(c)]  (C)  of  his  or  her right to have an attorney present at such
 questioning; and
   [(d)] (D) of his or her right to have an attorney provided for him  or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II)  THE  JUVENILE  OFFENDER  OR  SIXTEEN  OR  SEVENTEEN YEAR OLD HAS
 CONSULTED WITH AN ATTORNEY IN PERSON, BY TELEPHONE, OR BY VIDEO  CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D)  In determining the suitability of questioning and determining the
 reasonable period of time for questioning such a  juvenile  offender  or
 [such  person]  SIXTEEN OR SEVENTEEN YEAR OLD, his or her age, the pres-
 ence or absence of his or her parents or other persons legally responsi-
 ble for his or her care and notification pursuant to  PARAGRAPH  (A)  OF
 this subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE  WITHIN  THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45 OF THIS
 CHAPTER, A STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD  HAS  NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION,  IF  PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY WAIVED THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   § 12. This act shall take effect April 1, 2023.

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The New York State Senate

assembly Bill A5891C

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assembly Bill A5891C

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Sponsored By

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Archive: Last Bill Status - Passed Assembly

Your Voice

Actions

Bill Amendments

Co-Sponsors

Jo Anne Simon

Inez E. Dickens

Robert C. Carroll

Jeffrion Aubry

Charles Barron

Daniel O'Donnell

Jeffrey Dinowitz

Phara Souffrant Forrest

A5891 - Details

A5891 - Summary

A5891 - Bill Text download pdf

Co-Sponsors

Jo Anne Simon

Inez E. Dickens

Robert C. Carroll

Jeffrion Aubry

Charles Barron

Daniel O'Donnell

Jeffrey Dinowitz

Phara Souffrant Forrest

A5891A - Details

A5891A - Summary

A5891A - Bill Text download pdf

Co-Sponsors

Jo Anne Simon

Inez E. Dickens

Robert C. Carroll

Jeffrion Aubry

Charles Barron

Daniel O'Donnell

Jeffrey Dinowitz

Phara Souffrant Forrest

Chantel Jackson

Andrew Hevesi

Marcela Mitaynes

Jessica Gonzalez-Rojas

Steven Otis

Harvey Epstein

Anna Kelles

Catalina Cruz

Karines Reyes

Stefani Zinerman

Rebecca Seawright

J. Gary Pretlow

Khaleel Anderson

Chris Burdick

Kenny Burgos

A5891B - Details

A5891B - Summary

A5891B - Bill Text download pdf

Co-Sponsors

Jo Anne Simon

Inez E. Dickens

Robert C. Carroll

Jeffrion Aubry

Charles Barron

Daniel O'Donnell

Jeffrey Dinowitz

Phara Souffrant Forrest

Chantel Jackson

Andrew Hevesi

Marcela Mitaynes

Jessica Gonzalez-Rojas

Steven Otis

Harvey Epstein

Anna Kelles

Catalina Cruz

Karines Reyes

Stefani Zinerman

Rebecca Seawright

J. Gary Pretlow