S T A T E O F N E W Y O R K
________________________________________________________________________
7171
2021-2022 Regular Sessions
I N S E N A T E
June 4, 2021
___________
Introduced by Sen. BRISPORT -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Rules
AN ACT to amend the family court act and the criminal procedure law, in
relation to juvenile delinquency charges of violations in the family
court
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision 1 of section 301.2 of the family court act, as
amended by section 56 of part WWW of chapter 59 of the laws of 2017, is
amended to read as follows:
1. "Juvenile delinquent" means a person over seven and less than
[sixteen years of age, or commencing on October first, two thousand
eighteen a person over seven and less than] seventeen years of age, and
commencing October first, two thousand nineteen, a person over seven and
less than eighteen years of age, who, having committed an act that would
constitute a crime IF COMMITTED BY AN ADULT, or (WITH RESPECT TO A
PERSON OVER SIXTEEN AND LESS THAN SEVENTEEN YEARS OF AGE OR, A PERSON
OVER SIXTEEN AND LESS THAN EIGHTEEN YEARS OF AGE COMMENCING OCTOBER
FIRST, TWO THOUSAND NINETEEN) a violation AS DEFINED BY SUBDIVISION
THREE OF SECTION 10.00 OF THE PENAL LAW IF COMMITTED BY AN ADULT, where
such violation is alleged to have occurred in the same transaction or
occurrence of the alleged criminal act[, if committed by an adult], AND
WHERE SUCH PERSON: (a) is not criminally responsible for such conduct by
reason of infancy, or (b) is the defendant in an action ordered removed
from a criminal court to the family court pursuant to article seven
hundred twenty-five of the criminal procedure law.
§ 2. Subdivision 3 of section 302.1 of the family court act, as added
by section 56-a 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.
LBD10256-02-1
S. 7171 2
3. [Whenever] WITH RESPECT TO A YOUTH OVER SIXTEEN AND LESS THAN
SEVENTEEN YEARS OF AGE OR, A PERSON OVER SIXTEEN AND LESS THAN EIGHTEEN
YEARS OF AGE COMMENCING OCTOBER FIRST, TWO THOUSAND NINETEEN, WHENEVER a
crime and a violation arise out of the same transaction or occurrence, a
charge alleging both offenses shall be made returnable before the court
having jurisdiction over the crime. Nothing herein provided shall be
construed to prevent a court, having jurisdiction over a violation
relating to a criminal act from lawfully entering an order in accordance
with SECTION 345.1 of this article where such order is not based upon
the count or counts of the petition alleging such criminal act.
§ 3. Subdivision 3 of section 304.1 of the family court act, as
amended by section 59 of part WWW of chapter 59 of the laws of 2017, is
amended to read as follows:
3. The detention of a child under ten years of age in a secure
detention facility shall not be directed, NOR SHALL THE DETENTION OF A
CHILD ADJUDICATED SOLELY FOR AN ACT THAT WOULD CONSTITUTE A VIOLATION AS
DEFINED IN SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW, BE
DIRECTED under any of the provisions of this article.
§ 4. Subdivision 13 of section 308.1 of the family court act, as added
by chapter 920 of the laws of 1982, is amended and a new subdivision 14
is added to read as follows:
13. The provisions of this section shall not apply where the petition
is an order of removal to the family court pursuant to article seven
hundred twenty-five of the criminal procedure law AGAINST A JUVENILE
OFFENDER AS DEFINED IN SUBDIVISION EIGHTEEN OF SECTION 10.00 OF THE
PENAL LAW.
14. NOTWITHSTANDING SUBDIVISIONS THREE, FOUR AND THIRTEEN OF THIS
SECTION, THE PROBATION SERVICE MAY ADJUST A PROCEEDING WHERE THE COURT
HAS REFERRED A CASE TO THE PROBATION SERVICE IN ACCORDANCE WITH SECTION
320.6 OF THIS ARTICLE IN CONJUNCTION WITH OR SUBSEQUENT TO THE ISSUANCE
OF AN ORDER PURSUANT TO SUBDIVISION ONE OF SECTION 345.1 OF THIS ARTICLE
WHERE SUCH ORDER DOES NOT INCLUDE A FACT-FINDING FOR AN ACT WHICH WOULD
CONSTITUTE A JUVENILE OFFENSE, DESIGNATED FELONY OR OFFENSE LISTED IN
SUBDIVISION FOUR OF THIS SECTION. WHERE A PROCEEDING HAS BEEN REFERRED
TO THE PROBATION SERVICE IN WHICH AN ORDER ISSUED PURSUANT TO SECTION
345.1 OF THIS ARTICLE CONSISTS SOLELY OF A VIOLATION AS DEFINED IN
SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW COMMITTED BY A JUVE-
NILE SIXTEEN YEARS OF AGE OR, COMMENCING ON OCTOBER FIRST, TWO THOUSAND
NINETEEN, SEVENTEEN YEARS OF AGE, THE PROBATION SERVICE SHALL ADJUST THE
MATTER UNLESS GOOD CAUSE IS SHOWN AND IS DOCUMENTED IN ITS RECORDS.
§ 5. Section 315.3 of the family court act is amended by adding a new
subdivision 4 to read as follows:
4. WHERE AN ORDER OF FACT-FINDING THAT INCLUDES SOLELY A VIOLATION AS
DEFINED IN SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW COMMITTED
BY A JUVENILE SIXTEEN YEARS OF AGE OR, COMMENCING ON OCTOBER FIRST, TWO
THOUSAND NINETEEN, SEVENTEEN YEARS OF AGE, HAS BEEN ENTERED PURSUANT TO
SECTION 345.1 OF THIS ARTICLE, THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT THE COURT SHALL ADJOURN THE CASE IN CONTEMPLATION OF DISMISSAL
PURSUANT TO THIS SECTION, REFER THE CASE TO THE PROBATION SERVICE FOR
ADJUSTMENT SERVICES PURSUANT TO SECTION 320.6 OF THIS ARTICLE OR DISMISS
THE CASE PURSUANT TO SUBDIVISION TWO OF SECTION 352.1 OF THIS ARTICLE.
§ 6. Subdivision 2 of section 320.6 of the family court act, as
amended by chapter 310 of the laws of 2019, is amended to read as
follows:
2. At the initial appearance or at any subsequent appearance, the
court may refer a case to the probation service for adjustment services.
S. 7171 3
The probation service shall consider the views of the complainant and
the impact of the alleged act or acts of juvenile delinquency upon the
complainant and upon the community in determining whether adjustment
under this section would be suitable. In the case of a designated felony
petition, the consent of the presentment agency shall be required to
refer a case to the probation service for adjustment services. WHERE AN
ORDER OF FACT-FINDING THAT INCLUDES SOLELY A VIOLATION AS DEFINED IN
SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW COMMITTED BY A JUVE-
NILE SIXTEEN YEARS OF AGE OR, COMMENCING ON OCTOBER FIRST, TWO THOUSAND
NINETEEN, SEVENTEEN YEARS OF AGE, HAS BEEN ENTERED PURSUANT TO SECTION
345.1 OF THIS ARTICLE, THERE SHALL BE A REBUTTABLE PRESUMPTION THAT THE
COURT SHALL REFER THE CASE TO THE PROBATION SERVICE FOR ADJUSTMENT
SERVICES IN ACCORDANCE WITH THIS SUBDIVISION, DISMISS THE CASE PURSUANT
TO SUBDIVISION TWO OF SECTION 352.1 OF THIS ARTICLE OR ADJOURN THE CASE
IN CONTEMPLATION OF DISMISSAL PURSUANT TO SECTION 315.3 OF THIS ARTICLE.
§ 7. Section 345.1 of the family court act is amended by adding a new
subdivision 3 to read as follows:
3. WHERE AN ORDER OF FACT-FINDING THAT INCLUDES SOLELY A VIOLATION AS
DEFINED IN SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW COMMITTED
BY A JUVENILE SIXTEEN YEARS OF AGE OR, COMMENCING ON OCTOBER FIRST, TWO
THOUSAND NINETEEN, SEVENTEEN YEARS OF AGE, HAS BEEN ENTERED PURSUANT TO
SUBDIVISION ONE OF THIS SECTION, THERE SHALL BE A REBUTTABLE PRESUMPTION
THAT THE COURT SHALL REFER THE CASE TO THE PROBATION SERVICE FOR ADJUST-
MENT SERVICES IN ACCORDANCE WITH SECTION 320.6 OF THIS ARTICLE, DISMISS
THE CASE PURSUANT TO SUBDIVISION TWO OF SECTION 352.1 OF THIS ARTICLE OR
ADJOURN THE CASE IN CONTEMPLATION OF DISMISSAL PURSUANT TO SECTION 315.3
OF THIS ARTICLE.
§ 8. Subdivision 1 of section 350.1 of the family court act, as
amended by chapter 398 of the laws of 1983, is amended to read as
follows:
1. If the respondent is detained and has not been found to have
committed a designated felony act the dispositional hearing shall
commence not more than ten days after the entry of an order pursuant to
subdivision one of section 345.1 OF THIS ARTICLE, except as provided in
subdivision three OF THIS SECTION; PROVIDED, HOWEVER, THAT IF THE
RESPONDENT HAS BEEN FOUND TO HAVE COMMITTED SOLELY A VIOLATION AS
DEFINED IN SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW, THE
RESPONDENT SHALL NOT BE DETAINED PENDING DISPOSITION.
§ 9. Subdivision 4 of section 352.2 of the family court act, as added
by section 56-b of part WWW of chapter 59 of the laws of 2017, is
amended to read as follows:
4. Where a youth receives a juvenile delinquency adjudication for
conduct committed when the youth was [age] sixteen YEARS OF AGE or
[older], COMMENCING ON OCTOBER FIRST, TWO THOUSAND NINETEEN, SEVENTEEN
YEARS OF AGE, that would SOLELY constitute a violation AS DEFINED IN
SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW AND IF THE PRESUMP-
TION PURSUANT TO SUBDIVISION THREE OF SECTION 345.1 OF THIS ARTICLE HAS
BEEN REBUTTED, the court shall have the power to enter an order of
disposition in accordance with [paragraphs] PARAGRAPH (a) [and (b)] of
subdivision one of this section. THE COURT SHALL NOT ORDER DETENTION,
PROBATION OR PLACEMENT OF A YOUTH SOLELY ADJUDICATED UNDER THIS SUBDIVI-
SION.
§ 10. Subdivision 6 of section 360.3 of the family court act, as added
by chapter 920 of the laws of 1982, is amended to read as follows:
6. At the conclusion of the hearing the court may revoke, continue or
modify the order of probation or conditional discharge. If the court
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revokes the order, it shall order a different disposition pursuant to
section 352.2 OF THIS ARTICLE PROVIDED, HOWEVER, THAT IF THE COURT FINDS
A VIOLATION OF AN ORDER OF CONDITIONAL DISCHARGE WHERE THE UNDERLYING
FINDING HAD BEEN FOR AN ACT SOLELY CONSTITUTING A VIOLATION AS DEFINED
IN SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL LAW, THE COURT MAY
MODIFY THE CONDITIONS OF THE CONDITIONAL DISCHARGE BUT MAY NOT ORDER ANY
OTHER DISPOSITION UNDER SECTION 352.2 OF THIS ARTICLE. If the court
continues the order of probation or conditional discharge, it shall
dismiss the petition of violation.
§ 11. Section 375.2 of the family court act is amended by adding a new
subdivision 7 to read as follows:
7. WHERE AN ORDER OF FACT-FINDING HAS BEEN ISSUED PURSUANT TO SUBDIVI-
SION ONE OF SECTION 345.1 OF THIS ARTICLE THAT INCLUDES SOLELY A
VIOLATION AS DEFINED IN SUBDIVISION THREE OF SECTION 10.00 OF THE PENAL
LAW COMMITTED BY A JUVENILE SIXTEEN YEARS OF AGE OR, COMMENCING ON OCTO-
BER FIRST, TWO THOUSAND NINETEEN, SEVENTEEN YEARS OF AGE, THE RECORDS
SHALL BE SEALED AUTOMATICALLY AT THE EXPIRATION, AS APPLICABLE, OF A
SUCCESSFUL PERIOD OF AN ADJUSTMENT, ADJOURNMENT IN CONTEMPLATION OF
DISMISSAL OR CONDITIONAL DISCHARGE.
§ 12. Subdivision 1 of section 510.15 of the criminal procedure law,
as amended by section 36 of part WWW of chapter 59 of the laws of 2017,
is amended to read as follows:
1. When a principal who is under the age of sixteen is committed to
the custody of the sheriff the court must direct that the principal be
taken to and lodged in a place certified by the office of children and
family services as a juvenile detention facility for the reception of
children. When a principal who (a) commencing October first, two thou-
sand eighteen, is sixteen years of age; or (b) commencing October first,
two thousand nineteen, is sixteen or seventeen years of age, is commit-
ted to the custody of the sheriff, the court must direct that the prin-
cipal be taken to and lodged in a place certified by the office of chil-
dren and family services in conjunction with the state commission of
correction as a specialized secure juvenile detention facility for older
youth. Where such a direction is made the sheriff shall deliver the
principal in accordance therewith and such person shall although lodged
and cared for in a juvenile detention facility continue to be deemed to
be in the custody of the sheriff. No principal under the age specified
to whom the provisions of this section may apply shall be detained in
any prison, jail, lockup, or other place used for adults convicted of a
crime or under arrest and charged with the commission of a crime without
the approval of the office of children and family services which shall
consult with the commission of correction if the principal is sixteen
years of age or older in the case of each principal and the statement of
its reasons therefor; NOR SHALL A PRINCIPAL UNDER THE AGE SPECIFIED WHO
IS CHARGED SOLELY WITH A VIOLATION AS DEFINED IN SUBDIVISION THREE OF
SECTION 10.00 OF THE PENAL LAW BE SUBJECT TO DETENTION. The sheriff
shall not be liable for any acts done to or by such principal resulting
from negligence in the detention of and care for such principal, when
the principal is not in the actual custody of the sheriff.
§ 13. This act shall take effect immediately.