NY State Senate Bill 2021-S5749A

Senate Bill S5749A

2021-2022 Legislative Session

Relates to granting certain individuals youthful offender status or young adult offender status; repealer

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 05, 2022	referred to codes
May 14, 2021	print number 5749a
May 14, 2021	amend (t) and recommit to codes
Mar 17, 2021	referred to codes

Bill Amendments

Original

A (Active)

2021-S5749 - Details

See Assembly Version of this Bill:: A3536
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Rpld §720.15 sub 3, amd CP L, generally; amd §§60.00, 60.02, 80.00 & 80.05, Pen L
Versions Introduced in Other Legislative Sessions:: 2019-2020: A8381
2023-2024: S3426, A4238

2021-S5749 - Summary

Relates to granting certain individuals youthful offender status; adds a new category of individuals eligible for young adult offender status; provides for process and sentencing requirements related to such statuses.

2021-S5749 - Sponsor Memo

                                
 
BILL NUMBER: S5749

SPONSOR: MYRIE
 
TITLE OF BILL:

An act to amend the criminal procedure law and the penal law, in
relation to granting certain individuals youthful offender status; to
add a new category of individuals eligible for young adult offender
status and first offender status; and to repeal certain provisions of
the criminal procedure law relating thereto

 
PURPOSE:

To update New York's criminal law to reflect twenty-first century under-
standing of the adolescent brain and criminal culpability, by creating a
new Young Adult Offender status to apply to those who are 19 to 25 years
old at the time of the alleged offense, as well as a new First Offender
status for those 22 or older at the time of the alleged offense.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends section 720.10 of the Criminal Procedure
Law ("CPL"). Section 2 of the bill repeals CPL section 720.15, subdivi-
sions 3 and 4. Section 3 of the bill amends subdivision 1 of CPL section
720.20.

Section 4 of the bill amends CPL section 220.30, subdivision 3, para-
graph (b), subparagraph (i).

Section 5 of the bill amends CPL section 420.30, subdivision 3.

Section 6 of the bill amends CPL section 420.35, subdivision2.

Section 7 of the bill adds a new article 721 to the CPL, entitled Young
Adult Status.

Section 8 of the bill adds a new section 440.48 to the CPL, entitled
Resentencing; youthful offender.

Section 9 of the bill adds a new 726 to the CPL, entitled First Offender
Status.

Section 10 of the bill amends Penal Law ("PL") section 60.00, subdivi-
sion 2.

Section 11 of the bill amends PL section 60.02, subdivisions 1 and 3.

Section 12 of the bill amends PL section 80.00, subdivision 4.

Section 13 of the bill amends PL section 80.05, subdivision 6.

Section 14 of the bill is the effective date.

 
JUSTIFICATION:

Modern neuroscience research shows that an adolescent's brain is not
fully developed until their mid-twenties. As the United States Supreme
Court recognized in Roper v. Simmons, 54.3 U.S. 551 (2005), adolescents
have diminished culpability for their actions as compared to adults.
"Youth are less mature and have an underdeveloped sense of responsibil-
ity; they are more vulnerable to outside pressures, including peer pres-
sure, and other negative influences; and their characters are less well
formed and still developing." Id. at 569-570. Youthful offender (YO)
status recognizes the differences in legal culpability between adoles-
cents and adults and provides a mechanism for different treatment of
young offenders when appropriate. Under the existing YO statute, youth
benefit from reduced sentencing, including alternatives to incarceration
and, because a YO adjudication is sealed to the public, the young person
is protected from devastating collateral consequences associated with a
permanent criminal record, including deportation, eligibility for
student loans, and employment and housing discrimination. All of these
protections are appropriate given the age of the offender.  Studies
reviewed and summarized by the National Conference of St ate Legisla-
tures support a conclusion that the neurobiological, psychosocial and
developmental differences between juveniles and adults continue into the
late teens and early twenties. A longitudinal study conducted by the
chief of Brain Imaging in the Child Psychiatry Branch of the National
Institute of Mental Health concluded that the average human brain is not
fully developed until age 25; critically, the frontal lobe, which is
responsible for functions such as advanced cognition, controlling
impulses and judging consequences, continues to develop into the early
twenties.  The MacArthur Foundation has conducted psychosocial and
developmental research that corroborates the neurobiological findings.

New York must update its criminal procedure laws to reflect twenty-first
century understanding of the adolescent brain and criminal culpability.
This bill provides judges the discretion to grant the sealing and
sentencing protections of youthful offender status for youth until their
22nd birthday. The bill is also retroactive, in recognition of the enor-
mous harm that New York State has inflicted on youth - and almost exclu-
sively only youth of color - over the past forty years by saddling youth
with a permanent criminal record that stays with them their entire life.

 
LEGISLATIVE HISTORY:

A.8381A (19-20)

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
November first next succeeding the date on which it shall have become a
law.

2021-S5749 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5749
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 17, 2021
                                ___________
 
 Introduced  by  Sen.  MYRIE  -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the  criminal  procedure  law  and  the  penal  law,  in
   relation  to granting certain individuals youthful offender status; to
   add a new category of individuals eligible for  young  adult  offender
   status  and first offender status; and to repeal certain provisions of
   the criminal procedure law relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 720.10 of the criminal procedure law, as added by
 chapter 981 of the laws of 1971, subdivision 1 as amended by chapter 411
 of the laws of 1979, subdivision 2 as amended by chapter 416 of the laws
 of 1986, paragraph (a) of subdivision 2 as amended by chapter 316 of the
 laws of 2006, subdivision 3 as amended by chapter 264  of  the  laws  of
 2003,  and  subdivisions  4, 5 and 6 as renumbered by chapter 481 of the
 laws of 1978, is amended to read as follows:
 § 720.10 Youthful offender procedure; definition of terms.
   As used in this article, the following terms have the following  mean-
 ings:
   1.  ["Youth"]  "ELIGIBLE  YOUTH"  means  a person charged with a crime
 alleged to have been committed when he OR SHE was at least sixteen years
 old and less than nineteen years old or a person charged  with  being  a
 juvenile offender as defined in subdivision forty-two of section 1.20 of
 this chapter.
   2.  ["Eligible  youth"  means  a  youth  who is eligible to be found a
 youthful offender. Every youth is so eligible unless:
   (a) the conviction to be replaced by a youthful  offender  finding  is
 for  (i)  a  class  A-I or class A-II felony, or (ii) an armed felony as
 defined in subdivision forty-one of section 1.20, except as provided  in
 subdivision  three,  or  (iii) rape in the first degree, criminal sexual

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD07666-01-1

 S. 5749                             2

 act in the first degree, or aggravated sexual abuse, except as  provided
 in subdivision three, or
   (b) such youth has previously been convicted and sentenced for a felo-
 ny, or
   (c)  such  youth  has  previously been adjudicated a youthful offender
 following conviction of a felony or has been  adjudicated  on  or  after
 September  first,  nineteen  hundred seventy-eight a juvenile delinquent
 who committed a designated felony act as defined  in  the  family  court
 act.
   3.  Notwithstanding the provisions of subdivision two of this section,
 a youth who has been convicted of an armed felony offense or of rape  in
 the first degree, criminal sexual act in the first degree, or aggravated
 sexual  abuse  is  an eligible youth if the court determines that one or
 more of the following factors exist: (i) mitigating  circumstances  that
 bear  directly upon the manner in which the crime was committed; or (ii)
 where the defendant was not the  sole  participant  in  the  crime,  the
 defendant's  participation was relatively minor although not so minor as
 to constitute a defense to the prosecution. Where the  court  determines
 that  the  eligible youth is a youthful offender, the court shall make a
 statement on the record of the reasons for its  determination,  a  tran-
 script  of  which  shall  be forwarded to the state division of criminal
 justice services, to be kept in accordance with the provisions of subdi-
 vision three of section eight hundred thirty-seven-a  of  the  executive
 law.
   4.]  "Youthful  offender finding" means a finding, substituted for the
 conviction of an eligible youth, pursuant to a  determination  that  the
 eligible youth is a youthful offender.
   [5.] 3. "Youthful offender sentence" means the sentence imposed upon a
 youthful offender finding.
   [6.]  4. "Youthful offender adjudication". A youthful offender adjudi-
 cation is comprised of a youthful  offender  finding  and  the  youthful
 offender  sentence  imposed  thereon  and is completed by imposition and
 entry of the youthful offender sentence.
   § 2. Subdivisions 3 and 4 of section 720.15 of the criminal  procedure
 law are REPEALED.
   § 3. Subdivision 1 of section 720.20 of the criminal procedure law, as
 amended  by  chapter  652  of  the  laws  of 1974, is amended to read as
 follows:
   1.  Upon conviction of an eligible youth, the court must order a  pre-
 sentence  investigation  of  the defendant.   After receipt of a written
 report of the investigation and at the time of pronouncing sentence  the
 court  must  determine  whether  or not the eligible youth is a youthful
 offender.  Such determination shall be in accordance with the  following
 criteria:
   (a) If THE ELIGIBLE YOUTH IS CHARGED WITH A VIOLATION OR A MISDEMEANOR
 OFFENSE, A CLASS D OR E FELONY OFFENSE, A CLASS C FELONY AS DESCRIBED IN
 SUBDIVISION  ONE  OF  SECTION  160.10  OF  THE  PENAL LAW OR ANY OFFENSE
 CONTAINED IN ARTICLE TWO HUNDRED TWENTY OF  THE  PENAL  LAW,  THE  COURT
 SHALL FIND THAT HE OR SHE IS A YOUTHFUL OFFENDER.
   (B) IN ALL OTHER CASES, IF in the opinion of the court the interest of
 justice would be served by relieving the eligible youth from the onus of
 a  criminal  record  AND  THE  ATTENDANT COLLATERAL CONSEQUENCES OF THAT
 PERMANENT CRIMINAL RECORD and by not imposing an indeterminate  term  of
 imprisonment  of more than four years, the court may, in its discretion,
 find the eligible youth is a youthful offender[; and

 S. 5749                             3

   (b)  Where the conviction is had in a local  criminal  court  and  the
 eligible youth had not prior to commencement of trial or entry of a plea
 of  guilty  been  convicted of a crime or found a youthful offender, the
 court must find he is a youthful offender.]
   (C)  THERE SHALL BE A PRESUMPTION TO GRANT YOUTHFUL OFFENDER STATUS TO
 AN ELIGIBLE YOUTH. THE DISTRICT ATTORNEY MAY CHALLENGE THIS  PRESUMPTION
 BY  FILING  A MOTION WITH THE COURT, WITH AT LEAST SEVEN DAYS' NOTICE TO
 THE ELIGIBLE YOUTH AND  HIS  OR  HER  ATTORNEY,  SHOWING  BY  CLEAR  AND
 CONVINCING  EVIDENCE THAT THE INTERESTS OF JUSTICE REQUIRE THE COURT NOT
 TO GRANT YOUTHFUL OFFENDER STATUS.
   § 4. Subparagraph (i) of paragraph (b) of  subdivision  3  of  section
 220.30  of  the criminal procedure law, as amended by chapter 410 of the
 laws of 1979, is amended to read as follows:
   (i) A plea of guilty, whether to the entire indictment or to  part  of
 the  indictment  for  any  crime other than a class A felony, may not be
 accepted on the condition that it constitutes a complete disposition  of
 one or more other indictments against the defendant wherein is charged a
 class  A-I  felony as defined in article two hundred twenty of the penal
 law or the attempt to commit any such class A-I felony, except  that  an
 eligible  youth,  as defined in subdivision [two] ONE of section 720.10,
 may plea to a class B felony, upon consent of the district attorney, for
 purposes of adjudication as a youthful offender.
   § 5. The criminal procedure law is amended by adding a new article 721
 to read as follows:
                                ARTICLE 721
                            YOUNG ADULT STATUS
 
 SECTION 721.10 YOUNG ADULT STATUS PROCEDURE; DEFINITION OF TERMS.
         721.15 YOUNG  ADULT  STATUS  PROCEDURE;  SEALING  OF  ACCUSATORY
                  INSTRUMENT;   PRIVACY   OF   PROCEEDINGS;   PRELIMINARY
                  INSTRUCTIONS TO JURY.
         721.20 YOUNG ADULT STATUS  DETERMINATION;  WHEN  AND  HOW  MADE;
                  PROCEDURE THEREUPON.
         721.30 YOUNG   ADULT  ADJUDICATION;  POST-JUDGMENT  MOTIONS  AND
                  APPEAL.
         721.35 YOUNG ADULT ADJUDICATION; EFFECT THEREOF; RECORDS.
 § 721.10 YOUNG ADULT STATUS PROCEDURE; DEFINITION OF TERMS.
   AS USED IN THIS ARTICLE, THE FOLLOWING TERMS HAVE THE FOLLOWING  MEAN-
 INGS:
   1.  "ELIGIBLE  YOUNG  ADULT"  MEANS  A  PERSON CHARGED WITH A CRIME OR
 OFFENSE ALLEGED TO HAVE BEEN COMMITTED WHEN HE OR SHE WAS AT LEAST NINE-
 TEEN YEARS OLD AND LESS THAN TWENTY-FIVE YEARS OLD.
   2.  "YOUNG  ADULT  FINDING"  MEANS  A  FINDING,  SUBSTITUTED  FOR  THE
 CONVICTION  OF AN ELIGIBLE YOUNG ADULT, PURSUANT TO A DETERMINATION THAT
 THE ELIGIBLE YOUNG ADULT SHALL BE GRANTED YOUNG ADULT STATUS.
   3. "YOUNG ADULT SENTENCE" MEANS THE  SENTENCE  IMPOSED  UPON  A  YOUNG
 ADULT FINDING.
   4.  "YOUNG  ADULT  ADJUDICATION"  MEANS AN ADJUDICATION COMPRISED OF A
 YOUNG ADULT FINDING AND THE YOUNG ADULT SENTENCE IMPOSED THEREON AND  IS
 COMPLETED BY IMPOSITION AND ENTRY OF THE YOUNG ADULT SENTENCE.
 § 721.15 YOUNG ADULT STATUS PROCEDURE; SEALING OF ACCUSATORY INSTRUMENT;
            PRIVACY OF PROCEEDINGS; PRELIMINARY INSTRUCTIONS TO JURY.
   1.  WHEN AN ACCUSATORY INSTRUMENT AGAINST AN APPARENTLY ELIGIBLE YOUNG
 ADULT IS FILED WITH A COURT, IT SHALL BE FILED AS A  SEALED  INSTRUMENT,
 THOUGH ONLY WITH RESPECT TO THE PUBLIC.

 S. 5749                             4
 
   2.  WHEN  A  YOUNG  ADULT  IS  INITIALLY  ARRAIGNED UPON AN ACCUSATORY
 INSTRUMENT, SUCH ARRAIGNMENT AND ALL PROCEEDINGS IN THE ACTION THEREAFT-
 ER MAY, IN THE DISCRETION OF THE COURT  AND  WITH  THE  CONSENT  OF  THE
 ACCUSED, BE CONDUCTED IN PRIVATE.
 § 721.20 YOUNG  ADULT STATUS DETERMINATION; WHEN AND HOW MADE; PROCEDURE
            THEREUPON.
   UPON CONVICTION OF AN ELIGIBLE YOUNG ADULT, THE  COURT  MUST  ORDER  A
 PRE-SENTENCE  INVESTIGATION OF THE DEFENDANT. AFTER RECEIPT OF A WRITTEN
 REPORT OF THE INVESTIGATION AND AT THE TIME OF PRONOUNCING SENTENCE  THE
 COURT  MUST  DETERMINE  WHETHER  OR NOT THE ELIGIBLE YOUTH SHALL RECEIVE
 YOUNG ADULT STATUS.  SUCH DETERMINATION SHALL BE IN ACCORDANCE WITH  THE
 FOLLOWING CRITERIA:
   1. IF THE ELIGIBLE YOUNG ADULT IS CHARGED WITH A VIOLATION OR A MISDE-
 MEANOR  OFFENSE,  THE  COURT  SHALL FIND THAT HE OR SHE IS A YOUNG ADULT
 OFFENDER;
   2. IN ALL OTHER CASES, IF IN THE OPINION OF THE COURT THE INTEREST  OF
 JUSTICE  WOULD  BE SERVED BY RELIEVING THE ELIGIBLE YOUNG ADULT FROM THE
 ONUS OF A CRIMINAL RECORD AND THE ATTENDANT COLLATERAL  CONSEQUENCES  OF
 THAT PERMANENT CRIMINAL RECORD AND BY NOT IMPOSING AN INDETERMINATE TERM
 OF  IMPRISONMENT  OF  MORE  THAN  TEN  YEARS,  THE  COURT  MAY,  IN  ITS
 DISCRETION, FIND THE ELIGIBLE YOUNG ADULT IS A YOUNG ADULT OFFENDER; AND
   3. THERE SHALL BE A PRESUMPTION TO GRANT  YOUNG  ADULT  STATUS  TO  AN
 ELIGIBLE  YOUNG ADULT, UNLESS THE DISTRICT ATTORNEY UPON MOTION WITH NOT
 LESS THAN SEVEN DAYS' NOTICE TO SUCH  PERSON  OR  HIS  OR  HER  ATTORNEY
 DEMONSTRATES  TO  THE  SATISFACTION  OF  THE  COURT THAT THE INTEREST OF
 JUSTICE REQUIRE OTHERWISE.
 § 721.30 YOUNG ADULT ADJUDICATION; POST-JUDGMENT MOTIONS AND APPEAL.
   THE PROVISIONS OF THIS CHAPTER, GOVERNING THE MAKING AND DETERMINATION
 OF POST-JUDGMENT MOTIONS AND THE TAKING AND DETERMINATION OF APPEALS  IN
 CRIMINAL  CASES, APPLY TO POST JUDGMENT MOTIONS AND APPEALS WITH RESPECT
 TO YOUNG ADULT ADJUDICATIONS WHEREVER SUCH PROVISIONS CAN REASONABLY  BE
 SO APPLIED.
 § 721.35 YOUNG ADULT ADJUDICATION; EFFECT THEREOF; RECORDS.
   1.  A  YOUNG  ADULT ADJUDICATION IS NOT A JUDGMENT OF CONVICTION FOR A
 CRIME OR ANY OTHER OFFENSE, AND DOES NOT OPERATE AS  A  DISQUALIFICATION
 OF  ANY PERSON SO ADJUDGED TO HOLD PUBLIC OFFICE OR PUBLIC EMPLOYMENT OR
 TO RECEIVE ANY LICENSE GRANTED BY PUBLIC AUTHORITY BUT SHALL BE DEEMED A
 CONVICTION ONLY FOR THE PURPOSES OF TRANSFER OF SUPERVISION AND  CUSTODY
 PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-M OF THE EXECUTIVE LAW.
   2.  EXCEPT WHERE SPECIFICALLY REQUIRED OR PERMITTED BY STATUTE OR UPON
 SPECIFIC AUTHORIZATION OF THE COURT, UPON RECEIPT OF NOTIFICATION  OF  A
 YOUNG ADULT ADJUDICATION:
   (A)  EVERY  PHOTOGRAPH  OF  SUCH YOUNG ADULT AND PHOTOGRAPHIC PLATE OR
 PROOF, AND ALL PALMPRINTS AND FINGERPRINTS TAKEN OR MADE OF  SUCH  YOUNG
 ADULT PURSUANT TO THE PROVISIONS OF THIS ARTICLE IN REGARD TO THE ACTION
 OR  PROCEEDING TERMINATED, AND ALL DUPLICATES AND COPIES THEREOF, EXCEPT
 A DIGITAL FINGERPRINT IMAGE WHERE AUTHORIZED PURSUANT TO  PARAGRAPH  (D)
 OF THIS SUBDIVISION, SHALL FORTHWITH BE, AT THE DISCRETION OF THE RECIP-
 IENT AGENCY, EITHER DESTROYED OR RETURNED TO SUCH YOUNG ADULT, OR TO THE
 ATTORNEY  WHO REPRESENTED THE YOUNG ADULT AT THE TIME OF THE TERMINATION
 OF THE ACTION OR PROCEEDING, AT THE ADDRESS  GIVEN  BY  SUCH  PERSON  OR
 ATTORNEY  DURING  THE  ACTION OR PROCEEDING, BY THE DIVISION OF CRIMINAL
 JUSTICE SERVICES AND BY ANY POLICE;
   (B) ANY POLICE DEPARTMENT OR LAW  ENFORCEMENT  AGENCY,  INCLUDING  THE
 DIVISION  OF  CRIMINAL  JUSTICE SERVICES, WHICH TRANSMITTED OR OTHERWISE
 FORWARDED TO ANY AGENCY OF THE UNITED STATES OR OF ANY OTHER STATE OR OF

 S. 5749                             5
 
 ANY OTHER JURISDICTION OUTSIDE THE STATE OF NEW YORK COPIES OF ANY  SUCH
 PHOTOGRAPHS, PHOTOGRAPHIC PLATES OR PROOFS, PALMPRINTS AND FINGERPRINTS,
 SHALL  FORMALLY  REQUEST IN WRITING THAT ALL SUCH COPIES BE DESTROYED OR
 RETURNED TO THE POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY WHICH TRANS-
 MITTED OR FORWARDED THEM, AND UPON SUCH RETURN SUCH DEPARTMENT OR AGENCY
 SHALL,  AT  ITS  DISCRETION,  EITHER  DESTROY OR RETURN THEM AS PROVIDED
 UNDER THIS SUBDIVISION;
   (C) ALL OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST  OR  PROSE-
 CUTION,  INCLUDING  ALL  DUPLICATES AND COPIES THEREOF, ON FILE WITH THE
 DIVISION OF CRIMINAL JUSTICE SERVICES, POLICE  AGENCY,  OR  PROSECUTOR'S
 OFFICE SHALL BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR
 PRIVATE AGENCY;
   (D) THE RECORDS REFERRED TO IN PARAGRAPH (B) OF THIS SUBDIVISION SHALL
 BE  MADE  AVAILABLE  TO THE YOUNG ADULT ACCUSED OR TO SUCH YOUNG ADULT'S
 DESIGNATED AGENT, AND SHALL BE MADE AVAILABLE TO (I) A PROSECUTOR IN ANY
 PROCEEDING IN WHICH THE ACCUSED HAS  MOVED  FOR  AN  ORDER  PURSUANT  TO
 SECTION  170.56  OR  210.46  OF  THIS CHAPTER, OR (II) A LAW ENFORCEMENT
 AGENCY UPON EX PARTE MOTION IN ANY SUPERIOR COURT, OR  IN  ANY  DISTRICT
 COURT, CITY COURT OR THE CRIMINAL COURT OF THE CITY OF NEW YORK PROVIDED
 THAT  SUCH  COURT  SEALED THE RECORD, IF SUCH AGENCY DEMONSTRATES TO THE
 SATISFACTION OF THE COURT THAT JUSTICE REQUIRES  THAT  SUCH  RECORDS  BE
 MADE AVAILABLE TO IT, OR (III) ANY STATE OR LOCAL OFFICER OR AGENCY WITH
 RESPONSIBILITY  FOR  THE  ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN THE
 ACCUSED HAS MADE APPLICATION FOR SUCH A LICENSE, OR (IV)  THE  NEW  YORK
 STATE  DEPARTMENT  OF  CORRECTIONS  AND  COMMUNITY  SUPERVISION WHEN THE
 ACCUSED IS UNDER PAROLE SUPERVISION AS A RESULT OF  CONDITIONAL  RELEASE
 OR  PAROLE RELEASE GRANTED BY THE NEW YORK STATE BOARD OF PAROLE AND THE
 ARREST WHICH IS THE SUBJECT OF THE INQUIRY IS ONE WHICH  OCCURRED  WHILE
 THE  ACCUSED WAS UNDER SUCH SUPERVISION, OR (V) THE PROBATION DEPARTMENT
 RESPONSIBLE FOR SUPERVISION OF THE ACCUSED WHEN THE ARREST WHICH IS  THE
 SUBJECT OF THE INQUIRY IS ONE WHICH OCCURRED WHILE THE ACCUSED WAS UNDER
 SUCH SUPERVISION;
   (E)  AT  NO TIME SHALL SUCH NOTIFICATION BE USED FOR ANY PURPOSE OTHER
 THAN THOSE SPECIFIED IN THIS SUBDIVISION, PROVIDED, HOWEVER, THAT INFOR-
 MATION REGARDING AN ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION
 ISSUED PURSUANT TO SECTION 530.12 OF THIS PART OR A  WARRANT  ISSUED  IN
 CONNECTION  THEREWITH MAY BE MAINTAINED ON THE STATEWIDE AUTOMATED ORDER
 OF PROTECTION AND WARRANT REGISTRY ESTABLISHED PURSUANT TO  SECTION  TWO
 HUNDRED  TWENTY-ONE-A  OF  THE EXECUTIVE LAW DURING THE PERIOD THAT SUCH
 ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION IS  IN  FULL  FORCE
 AND  EFFECT OR DURING WHICH SUCH WARRANT MAY BE EXECUTED. SUCH CONFIDEN-
 TIAL INFORMATION MAY BE MADE AVAILABLE PURSUANT TO LAW ONLY FOR PURPOSES
 OF ADJUDICATING OR ENFORCING SUCH ORDER OF PROTECTION OR TEMPORARY ORDER
 OF PROTECTION; AND
   (F) WHERE FINGERPRINTS SUBJECT TO THE PROVISIONS OF THIS SECTION  HAVE
 BEEN RECEIVED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES AND HAVE BEEN
 FILED  BY  THE  DIVISION AS DIGITAL IMAGES, SUCH IMAGES MAY BE RETAINED,
 PROVIDED THAT A FINGERPRINT CARD OF THE INDIVIDUAL IS ON FILE  WITH  THE
 DIVISION WHICH WAS NOT SEALED PURSUANT TO THIS SECTION OR SECTION 160.50
 OF THIS CHAPTER.
   §  6.  The  criminal  procedure law is amended by adding a new section
 440.48 to read as follows:
 § 440.48 RESENTENCING; YOUTHFUL OFFENDER.
   1. ANY PERSON UNDER THE AGE OF TWENTY-FIVE AT THE TIME THE  CRIME  WAS
 COMMITTED  WHO  WAS  CONVICTED OF A MISDEMEANOR OR VIOLATION OFFENSE WHO
 WOULD HAVE BEEN CONSIDERED AN "ELIGIBLE YOUTH" PURSUANT  TO  SUBDIVISION

 S. 5749                             6
 
 ONE  OF  SECTION  720.10  OF  THIS CHAPTER AND AN "ELIGIBLE YOUNG ADULT"
 PURSUANT TO SUBDIVISION ONE OF SECTION 721.10 OF THIS CHAPTER AFTER  THE
 EFFECTIVE DATE OF THIS SECTION SHALL HAVE THEIR CONVICTION AUTOMATICALLY
 REPLACED  WITH  A YOUTHFUL OFFENDER ADJUDICATION OR YOUNG ADULT OFFENDER
 ADJUDICATION WITHIN SIX MONTHS OF SUCH DATE. THE  DIVISION  OF  CRIMINAL
 JUSTICE  SERVICES  SHALL ESTABLISH STANDARDS TO ENSURE THAT SUCH PROCESS
 OCCURS AUTOMATICALLY FOR ALL PERSONS PRIOR TO SUCH SIX MONTH DEADLINE.
   2. ANY PERSON UNDER THE AGE OF TWENTY-FIVE AT THE TIME THE  CRIME  WAS
 COMMITTED WHO WOULD HAVE BEEN CONSIDERED AN "ELIGIBLE YOUTH" PURSUANT TO
 SUBDIVISION ONE OF SECTION 720.10 OF THIS CHAPTER AND AN "ELIGIBLE YOUNG
 ADULT"  PURSUANT  TO  SUBDIVISION  ONE OF SECTION 721.10 OF THIS CHAPTER
 AFTER THE EFFECTIVE DATE OF THIS SECTION, UPON NOTICE TO THE APPROPRIATE
 DISTRICT ATTORNEY, MAY PETITION TO BE RESENTENCED TO A YOUTHFUL OFFENDER
 ADJUDICATION OR YOUNG ADULT OFFENDER  ADJUDICATION  IN  ACCORDANCE  WITH
 ARTICLES SEVEN HUNDRED TWENTY AND SEVEN HUNDRED TWENTY-ONE OF THIS CHAP-
 TER IN THE COURT WHICH IMPOSED SUCH SENTENCE. EVEN IF A PERSON IS ELIGI-
 BLE FOR AUTOMATIC YOUTHFUL OFFENDER ADJUDICATION OR YOUNG ADULT OFFENDER
 ADJUDICATION  SEALING  PURSUANT TO SUBDIVISION ONE OF THIS SECTION, SUCH
 PERSON MAY STILL PETITION THE COURT FOR RESENTENCING PRIOR  TO  THE  SIX
 MONTH PERIOD DESCRIBED IN SUBDIVISION ONE OF THIS SECTION.
   3. THE COURT SHALL CONSIDER THE FACTORS OUTLINED IN SUBDIVISION ONE OF
 SECTION  720.20 AND SUBDIVISION ONE OF SECTION 721.20 OF THIS CHAPTER IN
 DETERMINING WHETHER OR NOT A PERSON WHO  WOULD  HAVE  BEEN  AN  ELIGIBLE
 YOUTH  MAY  OR  SHALL BE GRANTED YOUTHFUL OFFENDER STATUS OR YOUNG ADULT
 OFFENDER STATUS FOR THE PRIOR CONVICTION.
   (A) IN CASES WHERE GRANTING YOUTHFUL OFFENDER STATUS  OR  YOUNG  ADULT
 OFFENDER  STATUS  IS  DISCRETIONARY AND NOT REQUIRED BY PARAGRAPH (A) OF
 SUBDIVISION ONE OF SECTION 720.20 OR PARAGRAPH (A) OF SUBDIVISION ONE OF
 SECTION 721.20 OF THIS CHAPTER, THE COURT SHALL ALSO CONSIDER ANY  ADDI-
 TIONAL EVIDENCE PRESENTED BY THE PERSON SEEKING RESENTENCING, INCLUDING:
   (I)  THE  AMOUNT  OF TIME THAT HAS ELAPSED SINCE THE PETITIONER'S LAST
 CONVICTION;
   (II) THE CHARACTER OF THE PETITIONER, INCLUDING ANY MEASURES  THAT  HE
 OR SHE HAS TAKEN TOWARDS REHABILITATION, SUCH AS PARTICIPATING IN TREAT-
 MENT  PROGRAMS,  WORK,  OR  SCHOOLING,  AND  PARTICIPATING  IN COMMUNITY
 SERVICE OR OTHER VOLUNTEER PROGRAMS;
   (III) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE FOR  WHICH  THE
 PETITIONER IS SEEKING RELIEF;
   (IV)  THE  IMPACT  OF  SEALING THE PETITIONER'S RECORD UPON HIS OR HER
 REHABILITATION AND UPON HIS OR HER SUCCESSFUL AND PRODUCTIVE REENTRY AND
 REINTEGRATION INTO SOCIETY; AND
   (V) THE IMPACT OF COLLATERAL CONSEQUENCES OF  THE  CONVICTION  ON  THE
 DEFENDANT AND HIS OR HER FAMILY.
   (B)  THE  DISTRICT  ATTORNEY  MAY  CHALLENGE  THE PRESUMPTION TO GRANT
 YOUTHFUL OFFENDER STATUS PURSUANT TO PARAGRAPH (C) OF SUBDIVISION ONE OF
 SECTION 720.20 AND PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION 721.20 OF
 THIS CHAPTER.
   § 7. The criminal procedure law is amended by adding a new article 726
 to read as follows:
                                ARTICLE 726
                           FIRST OFFENDER STATUS
 SECTION 726.10 FIRST OFFENDER STATUS PROCEDURE; DEFINITION OF TERMS.
         726.20 FIRST OFFENDER STATUS DETERMINATION; WHEN AND  HOW  MADE;
                  PROCEDURE THEREUPON.
         726.30 FIRST  OFFENDER  ADJUDICATION;  POST-JUDGMENT MOTIONS AND
                  APPEAL.

 S. 5749                             7

         726.35 FIRST OFFENDER ADJUDICATION; EFFECT THEREOF; RECORDS.
 § 726.10 FIRST OFFENDER STATUS PROCEDURE; DEFINITION OF TERMS.
   AS  USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
 MEANINGS:
   1. "ELIGIBLE FIRST OFFENDER" MEANS ANY PERSON WHO STANDS CHARGED  WITH
 A  FELONY  OR MISDEMEANOR OFFENSE ALLEGED TO HAVE BEEN COMMITTED WHEN HE
 OR SHE WAS AGED TWENTY-FIVE YEARS OR OLDER UNLESS:
   (A) SUCH OFFENDER HAS BEEN PREVIOUSLY CONVICTED AND  SENTENCED  FOR  A
 FELONY, OR
   (B)  SUCH OFFENDER HAS BEEN PREVIOUSLY ADJUDICATED A YOUTHFUL OFFENDER
 FOLLOWING CONVICTION FOR A FELONY OR HAS BEEN ADJUDICATED A YOUNG  ADULT
 OFFENDER FOLLOWING A CONVICTION FOR A FELONY.
   2.  "FIRST  OFFENDER  FINDING"  MEANS  A  FINDING, SUBSTITUTED FOR THE
 CONVICTION OF AN ELIGIBLE FIRST OFFENDER, PURSUANT  TO  A  DETERMINATION
 THAT THE ELIGIBLE FIRST OFFENDER SHALL BE GRANTED FIRST OFFENDER STATUS.
   3.  "FIRST  OFFENDER SENTENCE" MEANS THE SENTENCE IMPOSED UPON A FIRST
 OFFENDER FINDING.
   4. "FIRST OFFENDER ADJUDICATION" MEANS AN ADJUDICATION COMPRISED OF  A
 FIRST  OFFENDER  FINDING AND THE FIRST OFFENDER SENTENCE IMPOSED THEREON
 AND IS COMPLETED BY IMPOSITION AND ENTRY OF THE FIRST OFFENDER SENTENCE.
 § 726.20 FIRST OFFENDER STATUS DETERMINATION; WHEN AND HOW MADE;  PROCE-
            DURE THEREUPON.
   1. UPON CONVICTION OF AN ELIGIBLE FIRST OFFENDER, THE COURT MUST ORDER
 A  PRE-SENTENCE INVESTIGATION OF THE DEFENDANT. AFTER RECEIPT OF A WRIT-
 TEN REPORT OF THE INVESTIGATION AND AT THE TIME OF PRONOUNCING  SENTENCE
 THE  COURT  MUST  DETERMINE  WHETHER OR NOT THE ELIGIBLE DEFENDANT SHALL
 RECEIVE FIRST OFFENDER STATUS. SUCH DETERMINATION SHALL BE IN ACCORDANCE
 WITH THE FOLLOWING CRITERIA:
   (A) IF THE ELIGIBLE FIRST OFFENDER IS CHARGED WITH A  VIOLATION  OR  A
 MISDEMEANOR  OFFENSE,  THE  COURT  SHALL  FIND THAT HE OR SHE IS A FIRST
 OFFENDER;
   (B) IN ALL OTHER CASES, IF IN THE OPINION OF THE COURT THE INTEREST OF
 JUSTICE WOULD BE SERVED BY RELIEVING THE ELIGIBLE OFFENDER FROM THE ONUS
 OF A CRIMINAL RECORD AND THE ATTENDANT COLLATERAL CONSEQUENCES  OF  THAT
 PERMANENT  CRIMINAL  RECORD,  THE COURT MAY, IN ITS DISCRETION, FIND THE
 ELIGIBLE OFFENDER IS A FIRST OFFENDER; AND
   (C) THERE SHALL BE A PRESUMPTION TO GRANT FIRST OFFENDER STATUS TO  AN
 ELIGIBLE  FIRST  OFFENDER, UNLESS THE DISTRICT ATTORNEY UPON MOTION WITH
 NOT LESS THAN SEVEN DAYS' NOTICE TO SUCH PERSON OR HIS OR  HER  ATTORNEY
 DEMONSTRATES  TO  THE  SATISFACTION  OF  THE  COURT THAT THE INTEREST OF
 JUSTICE REQUIRE OTHERWISE.
   2. WHEN AN AUTHORIZED COURT DETERMINES, PURSUANT TO SUBDIVISION ONE OF
 THIS SECTION, THAT THE DEFENDANT IS  AN  ELIGIBLE  FIRST  OFFENDER,  THE
 FOLLOWING SENTENCES MAY BE IMPOSED:
   (A)  AN  AUTHORIZED PRISON SENTENCE PURSUANT TO ARTICLE SEVENTY OF THE
 PENAL LAW;
   (B) AN AUTHORIZED SENTENCE OF  PROBATION,  CONDITIONAL  DISCHARGE,  OR
 UNCONDITIONAL DISCHARGE PURSUANT TO ARTICLE SIXTY-FIVE OF THE PENAL LAW;
 OR
   (C)  ANY OTHER AUTHORIZED DISPOSITION PURSUANT TO ARTICLE SIXTY OF THE
 PENAL LAW.
 § 726.30 FIRST OFFENDER ADJUDICATION; POST-JUDGMENT MOTIONS AND APPEAL.
   THE PROVISIONS OF THIS CHAPTER, GOVERNING THE MAKING AND DETERMINATION
 OF POST-JUDGMENT MOTIONS AND THE TAKING AND DETERMINATION OF APPEALS  IN
 CRIMINAL  CASES, APPLY TO POST JUDGMENT MOTIONS AND APPEALS WITH RESPECT

 S. 5749                             8
 
 TO FIRST OFFENDER ADJUDICATIONS WHEREVER SUCH PROVISIONS CAN  REASONABLY
 BE SO APPLIED.
 § 726.35 FIRST OFFENDER ADJUDICATION; EFFECT THEREOF; RECORDS.
   1. A FIRST OFFENDER ADJUDICATION IS NOT A JUDGMENT OF CONVICTION FOR A
 CRIME  OR  ANY OTHER OFFENSE, AND DOES NOT OPERATE AS A DISQUALIFICATION
 OF ANY PERSON SO ADJUDGED TO HOLD PUBLIC OFFICE OR PUBLIC EMPLOYMENT  OR
 TO RECEIVE ANY LICENSE GRANTED BY PUBLIC AUTHORITY BUT SHALL BE DEEMED A
 CONVICTION  ONLY FOR THE PURPOSES OF TRANSFER OF SUPERVISION AND CUSTODY
 PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-M OF THE EXECUTIVE LAW.
   2. EXCEPT WHERE SPECIFICALLY REQUIRED OR PERMITTED BY STATUTE OR  UPON
 SPECIFIC  AUTHORIZATION  OF THE COURT, UPON RECEIPT OF NOTIFICATION OF A
 FIRST OFFENDER ADJUDICATION:
   (A) EVERY PHOTOGRAPH OF SUCH OFFENDER AND PHOTOGRAPHIC PLATE OR PROOF,
 AND ALL PALMPRINTS AND FINGERPRINTS TAKEN OR MADE OF SUCH FIRST OFFENDER
 PURSUANT TO THE PROVISIONS OF THIS ARTICLE IN REGARD TO  THE  ACTION  OR
 PROCEEDING  TERMINATED,  AND ALL DUPLICATES AND COPIES THEREOF, EXCEPT A
 DIGITAL FINGERPRINT IMAGE WHERE AUTHORIZED PURSUANT TO PARAGRAPH (E)  OF
 THIS SUBDIVISION, SHALL FORTHWITH BE, AT THE DISCRETION OF THE RECIPIENT
 AGENCY,  EITHER  DESTROYED OR RETURNED TO SUCH FIRST OFFENDER, OR TO THE
 ATTORNEY WHO REPRESENTED THE FIRST OFFENDER AT THE TIME  OF  THE  TERMI-
 NATION  OF THE ACTION OR PROCEEDING, AT THE ADDRESS GIVEN BY SUCH PERSON
 OR ATTORNEY DURING THE ACTION OR PROCEEDING, BY THE DIVISION OF CRIMINAL
 JUSTICE SERVICES AND BY ANY POLICE DEPARTMENT OR LAW ENFORCEMENT  AGENCY
 HAVING  ANY  SUCH PHOTOGRAPH, PHOTOGRAPHIC PLATE OR PROOF, PALMPRINTS OR
 FINGERPRINTS IN ITS POSSESSION OR UNDER ITS CONTROL;
   (B) ANY POLICE DEPARTMENT OR LAW  ENFORCEMENT  AGENCY,  INCLUDING  THE
 DIVISION  OF  CRIMINAL  JUSTICE SERVICES, WHICH TRANSMITTED OR OTHERWISE
 FORWARDED TO ANY AGENCY OF THE UNITED STATES OR OF ANY OTHER STATE OR OF
 ANY OTHER JURISDICTION OUTSIDE THE STATE OF NEW YORK COPIES OF ANY  SUCH
 PHOTOGRAPHS, PHOTOGRAPHIC PLATES OR PROOFS, PALMPRINTS AND FINGERPRINTS,
 SHALL  FORMALLY  REQUEST IN WRITING THAT ALL SUCH COPIES BE DESTROYED OR
 RETURNED TO THE POLICE DEPARTMENT OR LAW ENFORCEMENT AGENCY WHICH TRANS-
 MITTED OR FORWARDED THEM, AND UPON SUCH RETURN SUCH DEPARTMENT OR AGENCY
 SHALL, AT ITS DISCRETION, EITHER DESTROY  OR  RETURN  THEM  AS  PROVIDED
 UNDER THIS SUBDIVISION;
   (C)  ALL  OFFICIAL RECORDS AND PAPERS RELATING TO THE ARREST OR PROSE-
 CUTION, INCLUDING ALL DUPLICATES AND COPIES THEREOF, ON  FILE  WITH  THE
 DIVISION  OF  CRIMINAL  JUSTICE SERVICES, POLICE AGENCY, OR PROSECUTOR'S
 OFFICE SHALL BE SEALED AND NOT MADE AVAILABLE TO ANY PERSON OR PUBLIC OR
 PRIVATE AGENCY;
   (D) THE RECORDS REFERRED TO IN PARAGRAPH (C) OF THIS SUBDIVISION SHALL
 BE MADE AVAILABLE TO  THE  ACCUSED  FIRST  OFFENDER  OR  TO  SUCH  FIRST
 OFFENDER'S DESIGNATED AGENT, AND SHALL BE MADE AVAILABLE TO (I) A PROSE-
 CUTOR  IN  ANY  PROCEEDING  IN  WHICH THE ACCUSED HAS MOVED FOR AN ORDER
 PURSUANT TO SECTION 170.56 OR 210.46 OF THIS  CHAPTER,  OR  (II)  A  LAW
 ENFORCEMENT AGENCY UPON EX PARTE MOTION IN ANY SUPERIOR COURT, OR IN ANY
 DISTRICT COURT, CITY COURT OR THE CRIMINAL COURT OF THE CITY OF NEW YORK
 PROVIDED  THAT SUCH COURT SEALED THE RECORD, IF SUCH AGENCY DEMONSTRATES
 TO THE SATISFACTION OF THE COURT THAT JUSTICE REQUIRES THAT SUCH RECORDS
 BE MADE AVAILABLE TO IT, OR (III) ANY STATE OR LOCAL OFFICER  OR  AGENCY
 WITH  RESPONSIBILITY  FOR THE ISSUANCE OF LICENSES TO POSSESS GUNS, WHEN
 THE ACCUSED HAS MADE APPLICATION FOR SUCH A LICENSE,  OR  (IV)  THE  NEW
 YORK  STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION WHEN THE
 ACCUSED IS UNDER PAROLE SUPERVISION AS A RESULT OF  CONDITIONAL  RELEASE
 OR  PAROLE RELEASE GRANTED BY THE NEW YORK STATE BOARD OF PAROLE AND THE
 ARREST WHICH IS THE SUBJECT OF THE INQUIRY IS ONE WHICH  OCCURRED  WHILE

 S. 5749                             9
 
 THE  ACCUSED WAS UNDER SUCH SUPERVISION, OR (V) THE PROBATION DEPARTMENT
 RESPONSIBLE FOR SUPERVISION OF THE ACCUSED WHEN THE ARREST WHICH IS  THE
 SUBJECT OF THE INQUIRY IS ONE WHICH OCCURRED WHILE THE ACCUSED WAS UNDER
 SUCH SUPERVISION;
   (E)  AT  NO TIME SHALL SUCH NOTIFICATION BE USED FOR ANY PURPOSE OTHER
 THAN THOSE SPECIFIED IN THIS SUBDIVISION, PROVIDED, HOWEVER, THAT INFOR-
 MATION REGARDING AN ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION
 ISSUED PURSUANT TO SECTION 530.12 OF THIS PART OR A  WARRANT  ISSUED  IN
 CONNECTION  THEREWITH MAY BE MAINTAINED ON THE STATEWIDE AUTOMATED ORDER
 OF PROTECTION AND WARRANT REGISTRY ESTABLISHED PURSUANT TO  SECTION  TWO
 HUNDRED  TWENTY-ONE-A  OF  THE EXECUTIVE LAW DURING THE PERIOD THAT SUCH
 ORDER OF PROTECTION OR TEMPORARY ORDER OF PROTECTION IS  IN  FULL  FORCE
 AND  EFFECT OR DURING WHICH SUCH WARRANT MAY BE EXECUTED. SUCH CONFIDEN-
 TIAL INFORMATION MAY BE MADE AVAILABLE PURSUANT TO LAW ONLY FOR PURPOSES
 OF ADJUDICATING OR ENFORCING SUCH ORDER OF PROTECTION OR TEMPORARY ORDER
 OF PROTECTION; AND
   (F) WHERE FINGERPRINTS SUBJECT TO THE PROVISIONS OF THIS SECTION  HAVE
 BEEN RECEIVED BY THE DIVISION OF CRIMINAL JUSTICE SERVICES AND HAVE BEEN
 FILED  BY  THE  DIVISION AS DIGITAL IMAGES, SUCH IMAGES MAY BE RETAINED,
 PROVIDED THAT A FINGERPRINT CARD OF THE INDIVIDUAL IS ON FILE  WITH  THE
 DIVISION WHICH WAS NOT SEALED PURSUANT TO THIS SECTION OR SECTION 160.50
 OF THIS CHAPTER.
   §  8.  Subdivision  2  of  section 60.00 of the penal law, as added by
 chapter 481 of the laws of 1978, is amended to read as follows:
   2. The sole provision of this article that shall apply in the case  of
 an  offense committed by a juvenile offender [is] OR A DEFENDANT ADJUDI-
 CATED A YOUTHFUL OFFENDER OR YOUNG ADULT IN section 60.10 of this  arti-
 cle and no other provisions of this article shall be deemed or construed
 to apply in any such case.
   §  9.  Subdivision  1 of section 60.02 of the penal law, as amended by
 chapter 471 of the laws of 1980, is amended to read as follows:
   (1) If the sentence is to be imposed upon a youthful offender  finding
 which  has  been substituted for a conviction of an offense other than a
 felony, the court must impose a sentence authorized for the offense  for
 which the youthful offender finding was substituted[, except that if the
 youthful  offender  finding  was  entered  pursuant  to paragraph (b) of
 subdivision one of section 720.20 of the  criminal  procedure  law,  the
 court  must  not impose a definite or intermittent sentence of imprison-
 ment with a term of more than six months]; or
   § 10. Subdivision 4 of section 80.00 of the penal law, as  amended  by
 chapter 338 of the laws of 1989, is amended to read as follows:
   4.  Exception.  The  provisions  of  this section shall not apply to a
 corporation, OR ELIGIBLE YOUTH AS DEFINED IN SECTION 720.10 OF THE CRIM-
 INAL PROCEDURE LAW.
   § 11. Subdivision 6 of section 80.05 of the penal law  is  amended  to
 read as follows:
   6.  Exception.  The  provisions  of  this section shall not apply to a
 corporation, OR ELIGIBLE YOUTH AS DEFINED IN SECTION 720.10 OF THE CRIM-
 INAL PROCEDURE LAW.
   § 12. This act shall  take  effect  on  the  first  of  November  next
 succeeding  the date on which it shall have become a law and shall apply
 to any criminal case pending on such effective date.

co-Sponsors

2021-S5749A (ACTIVE) - Details

See Assembly Version of this Bill:: A3536
Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Rpld §720.15 sub 3, amd CP L, generally; amd §§60.00, 60.02, 80.00 & 80.05, Pen L
Versions Introduced in Other Legislative Sessions:: 2019-2020: A8381
2023-2024: S3426, A4238

2021-S5749A (ACTIVE) - Summary

2021-S5749A (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5749A

SPONSOR: MYRIE
 
TITLE OF BILL:

An act to amend the criminal procedure law and the penal law, in
relation to granting certain individuals youthful offender status; to
add a new category of individuals eligible for young adult offender
status; and to repeal certain provisions of the criminal procedure law
relating thereto

 
PURPOSE:

To update New York's criminal law to reflect twenty-first century under-
standing of the adolescent brain and criminal culpability, by creating a
new Young Adult Offender status to apply to those who are 19 to 25 years
old at the time of the alleged offense, as well as a new First Offender
status for those 22 or older at the time of the alleged offense.

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends section 720.10 of the Criminal Procedure
Law ("CPL"). Section 2 of the bill repeals CPL section 720.15, subdivi-
sions 3 and 4. Section 3 of the bill amends subdivision 1 of CPL section
720.20.

Section 4 of the bill amends CPL section 220.30, subdivision 3, para-
graph (b), subparagraph (i).

Section 5 of the bill amends CPL section 420.30, subdivision 3.

Section 6 of the bill amends CPL section 420.35, subdivision2.

Section 7 of the bill adds a new article 721 to the CPL, entitled Young
Adult Status.

Section 8 of the bill adds a new section 440.48 to the CPL, entitled
Resentencing; youthful offender.

Section 10 of the bill amends Penal Law ("PL") section 60.00, subdivi-
sion 2.

Section 11 of the bill amends PL section 60.02, subdivisions 1 and 3.

Section 12 of the bill amends PL section 80.00, subdivision 4.

Section 13 of the bill amends PL section 80.05, subdivision 6.

Section 14 of the bill is the effective date.

 
JUSTIFICATION:

Modem neuroscience research shows that an adolescent's brain is not
fully developed until their mid-twenties. As the United States Supreme
Court recognized in Roper v. Simmons, 54.3 U.S. 551 (2005), adolescents
have diminished culpability for their actions as compared to adults.
"Youth are less mature and have an underdeveloped sense of responsibil-
ity; they are more vulnerable to outside pressures, including peer pres-
sure, and other negative influences; and their characters are less well
formed and still developing." Id. at 569-570. Youthful offender (Y0)
status recognizes the differences in legal culpability between adoles-
cents and adults and provides a mechanism for different treatment of
young offenders when appropriate. Under the existing YO statute, youth
benefit from reduced sentencing, including alternatives to incarceration
and, because a YO adjudication is sealed to the public, the young person
is protected from devastating collateral consequences associated with a
permanent criminal record, including deportation, eligibility for
student loans, and employment and housing discrimination. All of these
protections are appropriate given the age of the offender.  Studies
reviewed and summarized by the National Conference of State to Legisla-
tures support a conclusion that the neurobiological, psychosocial and
developmental differences between juveniles and adults continue into the
late teens and early twenties. A longitudinal study conducted by the
chief of Brain Imaging in the Child Psychiatry Branch of the National
Institute of Mental Health concluded that the average human brain is not
fully developed until age 25; critically, the frontal lobe, which is
responsible for functions such as advanced cognition, controlling
impulses and judging consequences, continues to develop into the early
twenties.  The MacArthur Foundation has conducted psychosocial and
developmental research that corroborates the neurobiological findings.

New York must update its criminal procedure laws to reflect twenty-first
century understanding of the adolescent brain and criminal culpability.
This bill provides judges the discretion to grant the sealing and
sentencing protections of youthful offender status for youth until their
26th birthday. The bill is also retroactive, in recognition of the enor-
mous harm that New York State has inflicted on youth - and almost exclu-
sively only youth of color - over the past forty years by saddling youth
with a permanent criminal record that stays with them their entire life.

 
LEGISLATIVE HISTORY:

A.8381A (19-20)

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
November first next succeeding the date on which it shall have become a
law.

2021-S5749A (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5749--A
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                              March 17, 2021
                                ___________
 
 Introduced  by  Sen.  MYRIE  -- read twice and ordered printed, and when
   printed to be  committed  to  the  Committee  on  Codes  --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to said committee
 
 AN  ACT  to  amend  the  criminal  procedure  law  and the penal law, in
   relation to granting certain individuals youthful offender status;  to
   add  a  new  category of individuals eligible for young adult offender
   status; and to repeal certain provisions of the criminal procedure law
   relating thereto
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section 720.10 of the criminal procedure law, as added by
 chapter 981 of the laws of 1971, subdivision 1 as amended by chapter 411
 of the laws of 1979, subdivision 2 as amended by chapter 416 of the laws
 of 1986, paragraph (a) of subdivision 2 as amended by chapter 316 of the
 laws of 2006, subdivision 3 as amended by chapter 264  of  the  laws  of
 2003,  and  subdivisions  4, 5 and 6 as renumbered by chapter 481 of the
 laws of 1978, is amended to read as follows:
 § 720.10 Youthful offender procedure; definition of terms.
   As used in this article, the following terms have the following  mean-
 ings:
   1.  "Youth"  means  a person charged with a crime alleged to have been
 committed when he OR SHE was at least sixteen years old  and  less  than
 nineteen years old or a person charged with being a juvenile offender as
 defined in subdivision forty-two of section 1.20 of this chapter.
   2. "Eligible youth" means a youth who is eligible to be found a youth-
 ful offender. Every youth is so eligible unless:
   (a)  the  conviction  to be replaced by a youthful offender finding is
 for (i) a class A-I or class A-II felony, or (ii) [an  armed  felony  as
 defined  in subdivision forty-one of section 1.20, except as provided in
 subdivision three, or (iii)] rape in the first degree,  criminal  sexual
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD07666-03-1

 S. 5749--A                          2
 
 act  in the first degree, or aggravated sexual abuse, except as provided
 in subdivision three, or
   (b) such youth has previously been convicted and sentenced for a felo-
 ny[, or
   (c)  such  youth  has  previously been adjudicated a youthful offender
 following conviction of a felony or has been  adjudicated  on  or  after
 September  first,  nineteen  hundred seventy-eight a juvenile delinquent
 who committed a designated felony act as defined  in  the  family  court
 act].
   3.  Notwithstanding the provisions of subdivision two of this section,
 a youth who has been convicted of [an armed felony offense or  of]  rape
 in  the first degree, criminal sexual act in the first degree, or aggra-
 vated sexual abuse is an eligible youth if  the  court  determines  that
 [one  or  more  of the following factors exist:] THE INTEREST OF JUSTICE
 WOULD BE SERVED BY RELIEVING THE YOUTH  FROM  THE  ONUS  OF  A  CRIMINAL
 RECORD  AND  BY NOT IMPOSING AN INDETERMINATE SENTENCE OF MORE THAN FOUR
 YEARS.  IN MAKING SUCH DETERMINATION, THE COURT SHALL WEIGH THE  FOLLOW-
 ING  FACTORS:  (i) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE WITH
 DUE REGARD TO THE EXTENT OF THE HARM CAUSED BY IT; (II)  ANY  mitigating
 circumstances that bear [directly upon] ON the manner in which the crime
 was  committed;  [or (ii)] (III) where the [defendant] YOUTH was not the
 sole participant in the crime, the [defendant's participation was  rela-
 tively  minor  although  not  so minor as to constitute a defense to the
 prosecution] LEVEL AND EXTENT OF HIS OR HER DIRECT  INVOLVEMENT  IN  THE
 CRIMINAL ACTIVITY; (IV) THE HISTORY AND BACKGROUND OF THE YOUTH; AND (V)
 PROSPECTS  FOR  REHABILITATION  OF THE YOUTH OR OPPORTUNITIES FOR INTER-
 VENTIONS THAT WOULD ASSIST THE YOUTH  IN  LEADING  A  LAW-ABIDING  LIFE.
 Where  the court determines that the eligible youth is a youthful offen-
 der, the court shall make a statement on the record of the  reasons  for
 its determination, a transcript of which shall be forwarded to the state
 division of criminal justice services, to be kept in accordance with the
 provisions  of subdivision three of section eight hundred thirty-seven-a
 of the executive law.
   4. "Youthful offender finding" means a finding,  substituted  for  the
 conviction  of  an  eligible youth, pursuant to a determination that the
 eligible youth is a youthful offender.
   5. "Youthful offender sentence" means  the  sentence  imposed  upon  a
 youthful offender finding.
   6.  "Youthful offender adjudication". A youthful offender adjudication
 is comprised of a youthful offender finding and  the  youthful  offender
 sentence imposed thereon and is completed by imposition and entry of the
 youthful offender sentence.
   §  2. Subdivision 3 of section 720.15 of the criminal procedure law is
 REPEALED.
   § 3. Subdivision 1 of section 720.20 of the criminal procedure law, as
 amended by chapter 652 of the laws  of  1974,  is  amended  to  read  as
 follows:
   1.  Upon  conviction of an eligible youth, the court must order a pre-
 sentence investigation of the defendant.   After receipt  of  a  written
 report  of the investigation and at the time of pronouncing sentence the
 court must determine whether or not the eligible  youth  is  a  youthful
 offender.   Such determination shall be in accordance with the following
 criteria:
   (a) If [in the opinion of the court the interest of justice  would  be
 served  by  relieving the eligible] THE ELIGIBLE YOUTH IS CHARGED WITH A
 MISDEMEANOR OFFENSE, A CLASS D OR E FELONY OFFENSE, A CLASS C FELONY  AS

 S. 5749--A                          3
 
 DESCRIBED  IN  SUBDIVISION ONE OF SECTION 160.10 OF THE PENAL LAW OR ANY
 OFFENSE CONTAINED IN ARTICLE TWO HUNDRED TWENTY OF THE PENAL  LAW  OTHER
 THAN A CLASS A-I OR A-II FELONY OFFENSE, THE COURT SHALL FIND THAT HE OR
 SHE IS A YOUTHFUL OFFENDER.
   (B)  IN ALL OTHER CASES, EXCEPT WHEN THE YOUTH IS CHARGED WITH RAPE IN
 THE FIRST DEGREE, AND AGGRAVATED SEXUAL ABUSE, THERE SHALL BE A PRESUMP-
 TION TO GRANT YOUTHFUL OFFENDER STATUS TO AN ELIGIBLE YOUTH IN ORDER  TO
 RELIEVE SUCH youth from the onus of a criminal record [and by not impos-
 ing], OTHER CONSEQUENCES OF A CRIMINAL CONVICTION, AND THE IMPOSITION OF
 an  indeterminate  term  of  imprisonment  of more than four years[, the
 court may, in its discretion, find the  eligible  youth  is  a  youthful
 offender; and
   (b)  Where  the  conviction  is  had in a local criminal court and the
 eligible youth had not prior to commencement of trial or entry of a plea
 of guilty been convicted of a crime or found a  youthful  offender,  the
 court  must  find  he  is a youthful offender].  UPON MOTION OF NOT LESS
 THAN SEVEN DAYS' NOTICE, THE PROSECUTOR MAY CHALLENGE THE PRESUMPTION TO
 GRANT YOUTHFUL OFFENDER STATUS.  THE COURT SHALL GRANT YOUTHFUL OFFENDER
 STATUS UNLESS THE PROSECUTOR REBUTS THE PRESUMPTION AND  ESTABLISHES  BY
 CLEAR AND CONVINCING EVIDENCE THAT THE CRITERIA SET FORTH IN SUBDIVISION
 TWO  OF  SECTION  720.10  OF THIS ARTICLE REQUIRE THAT YOUTHFUL OFFENDER
 STATUS BE DENIED.
   § 4. Section 720.35 of the criminal procedure law, as added by chapter
 981 of the laws of 1971, subdivision 1 as amended by chapter 23  of  the
 laws of 2021, subdivisions 2 and 4 as amended by section 87 of subpart B
 of part C of chapter 62 of the laws of 2011 and subdivision 3 as amended
 by chapter 181 of the laws of 2000, is amended to read as follows:
 § 720.35 Youthful offender adjudication; effect thereof; records.
   1.  A  youthful offender OR YOUNG ADULT adjudication is not a judgment
 of conviction for a crime or any other offense, and does not operate  as
 a  disqualification  of  any person so adjudged to hold public office or
 public employment or to receive any license granted by public  authority
 but  shall  be  deemed a conviction only for the purposes of transfer of
 supervision and custody pursuant to section two hundred fifty-nine-m  of
 the executive law. A defendant for whom a youthful offender adjudication
 was substituted, who was originally charged with prostitution as defined
 in  section  230.00  of  the  penal  law,  shall  be  deemed a "sexually
 exploited child" as defined in subdivision one of section  four  hundred
 forty-seven-a  of  the  social  services  law and therefore shall not be
 considered an adult for purposes related to the charges in the  youthful
 offender  proceeding  or a proceeding under section 170.80 of this chap-
 ter.
   2. Except where specifically required or permitted by statute or  upon
 specific  authorization  of  the court, all official records and papers,
 whether on file with the court, a police agency or the division of crim-
 inal justice services, relating to a case involving  a  youth  OR  YOUNG
 ADULT  who  has  been adjudicated a youthful offender OR GRANTED A YOUNG
 ADULT STATUS FINDING, are confidential and may not be made available  to
 any person or public or private agency, other than the designated educa-
 tional  official of the public or private elementary or secondary school
 in which the youth OR YOUNG ADULT is enrolled as a student provided that
 such local educational official shall only have made available a  notice
 of  such  adjudication  and  shall not have access to any other official
 records and papers, such youth OR YOUNG ADULT or such youth's  OR  YOUNG
 ADULT'S designated agent (but only where the official records and papers
 sought  are  on  file  with a court and request therefor is made to that

 S. 5749--A                          4
 
 court or to a clerk thereof), an institution  to  which  such  youth  OR
 YOUNG ADULT has been committed, the department of corrections and commu-
 nity  supervision and a probation department of this state that requires
 such  official records and papers for the purpose of carrying out duties
 specifically authorized by  law;  provided,  however,  that  information
 regarding an order of protection or temporary order of protection issued
 pursuant  to  section  530.12  of  this  chapter  or a warrant issued in
 connection therewith may be maintained on the statewide automated  order
 of  protection  and warrant registry established pursuant to section two
 hundred twenty-one-a of the executive law during the  period  that  such
 order  of  protection  or temporary order of protection is in full force
 and effect or during which such warrant may be executed. Such  confiden-
 tial information may be made available pursuant to law only for purposes
 of adjudicating or enforcing such order of protection or temporary order
 of  protection and, where provided to a designated educational official,
 as defined in section 380.90 of this chapter, for  purposes  related  to
 the  execution  of  the  student's  educational  plan, where applicable,
 successful school  adjustment  and  reentry  into  the  community.  Such
 notification shall be kept separate and apart from such student's school
 records and shall be accessible only by the designated educational offi-
 cial.  Such  notification  shall not be part of such student's permanent
 school record and shall not be appended to or included in any documenta-
 tion regarding such student and shall be destroyed at such time as  such
 student  is  no longer enrolled in the school district. At no time shall
 such notification be used for any purpose other than those specified  in
 this subdivision.
   3.  If  a  youth  OR  YOUNG  ADULT who has been adjudicated a youthful
 offender OR GRANTED A YOUNG  ADULT  STATUS  FINDING  is  enrolled  as  a
 student  in a public or private elementary or secondary school the court
 that has [adjudicated the youth as a]  MADE  THE  youthful  offender  OR
 YOUNG ADULT ADJUDICATION shall provide notification of such adjudication
 to the designated educational official of the school in which such youth
 OR  YOUNG  ADULT  is  enrolled as a student.  Such notification shall be
 used by the designated educational official only for purposes related to
 the execution of  the  student's  educational  plan,  where  applicable,
 successful  school  adjustment  and  reentry  into  the  community. Such
 notification shall be kept separate and apart from such student's school
 records and shall be accessible only by the designated educational offi-
 cial. Such notification shall not be part of  such  student's  permanent
 school record and shall not be appended to or included in any documenta-
 tion  regarding such student and shall be destroyed at such time as such
 student is no longer enrolled in the school district. At no  time  shall
 such  notification be used for any purpose other than those specified in
 this subdivision.
   4. Notwithstanding subdivision two of this section, whenever a  person
 is adjudicated a youthful offender OR GRANTED YOUNG ADULT STATUS and the
 conviction  that  was  vacated  and replaced by the youthful offender OR
 YOUNG ADULT STATUS finding was for a sex offense as that term is defined
 in article ten of the mental hygiene law, all records pertaining to  the
 youthful offender OR YOUNG ADULT adjudication shall be included in those
 records  and  reports that may be obtained by the commissioner of mental
 health or the commissioner of developmental disabilities,  as  appropri-
 ate; the case review panel; and the attorney general pursuant to section
 10.05 of the mental hygiene law.

 S. 5749--A                          5

   §  5.  Subparagraph  (i)  of paragraph (b) of subdivision 3 of section
 220.30 of the criminal procedure law, as amended by chapter 410  of  the
 laws of 1979, is amended to read as follows:
   (i)  A  plea of guilty, whether to the entire indictment or to part of
 the indictment for any crime other than a class A  felony,  may  not  be
 accepted  on the condition that it constitutes a complete disposition of
 one or more other indictments against the defendant wherein is charged a
 class A-I felony as defined in article two hundred twenty of  the  penal
 law  or the attempt to commit any such class A-I felony, except that [an
 eligible youth, as defined in subdivision two  of  section  720.10,  may
 plea  to  a  class  B felony, upon consent of the district attorney, for
 purposes of adjudication as a youthful offender] THIS RESTRICTION  SHALL
 NOT APPLY TO AN ELIGIBLE YOUTH, AS DEFINED IN SUBDIVISION TWO OF SECTION
 720.10 OF THIS CHAPTER, OR AN ELIGIBLE YOUNG ADULT, AS DEFINED IN SUBDI-
 VISION TWO OF SECTION 721.10 OF THIS CHAPTER.
   § 6. Subdivision 3 of section 420.30 of the criminal procedure law, as
 amended  by  chapter  144  of  the  laws  of 2020, is amended to read as
 follows:
   3. Restrictions. Except  as  provided  for  in  subdivision  two-a  of
 section 420.35 of this article, in no event shall a mandatory surcharge,
 sex  offender registration fee, DNA databank fee or crime victim assist-
 ance fee be remitted.  IN NO EVENT SHALL SUCH  FEES  BE  IMPOSED  FOR  A
 JUVENILE OFFENDER, A YOUTHFUL OFFENDER OR A YOUNG ADULT STATUS FINDING.
   § 7. Subdivision 2 of section 420.35 of the criminal procedure law, as
 amended by chapter 23 of the laws of 2021, is amended as follows:
   2. Except as provided in this subdivision or subdivision two-a of this
 section,  under  no  circumstances  shall  the  mandatory surcharge, sex
 offender registration fee, DNA databank fee or the crime victim  assist-
 ance  fee  be  waived.  A court shall waive any mandatory surcharge, DNA
 databank fee and crime victim assistance fee when: (i) the defendant  is
 convicted  of  prostitution  under section 230.00 of the penal law; (ii)
 the defendant is convicted of a violation in the event  such  conviction
 is  in  lieu  of  a plea to or conviction for prostitution under section
 230.00 of the penal law; (iii) the court finds that  a  defendant  is  a
 victim  of  sex  trafficking  under section 230.34 of the penal law or a
 victim  of  trafficking  in  persons  under  the   trafficking   victims
 protection act (United States Code, Title 22, Chapter 78); [or] (iv) the
 court finds that the defendant is a victim of sex trafficking of a child
 under  section  230.34-a  of  the penal law; OR (V) THE COURT DETERMINES
 THAT THE DEFENDANT IS A YOUTHFUL OFFENDER PURSUANT TO SECTION 720.00  OF
 THIS CHAPTER OR THE COURT GRANTS THE DEFENDANT YOUNG ADULT STATUS PURSU-
 ANT TO SECTION 721.00 OF THIS CHAPTER.
   § 8. The criminal procedure law is amended by adding a new article 721
 to read as follows:
                                ARTICLE 721
                            YOUNG ADULT STATUS
 SECTION 721.10 YOUNG ADULT STATUS PROCEDURE; DEFINITION OF TERMS.
         721.15 YOUNG  ADULT  STATUS  PROCEDURE;  SEALING  OF  ACCUSATORY
                  INSTRUMENT;   PRIVACY   OF   PROCEEDINGS;   PRELIMINARY
                  INSTRUCTIONS TO JURY.
         721.20 YOUNG  ADULT  STATUS  DETERMINATION;  WHEN  AND HOW MADE;
                  PROCEDURE THEREUPON.
         721.30 YOUNG  ADULT  ADJUDICATION;  POST-JUDGMENT  MOTIONS   AND
                  APPEAL.
         721.35 YOUNG ADULT ADJUDICATION; EFFECT THEREOF; RECORDS.
 § 721.10 YOUNG ADULT STATUS PROCEDURE; DEFINITION OF TERMS.

 S. 5749--A                          6
 
   AS  USED IN THIS ARTICLE, THE FOLLOWING TERMS HAVE THE FOLLOWING MEAN-
 INGS:
   1.   "YOUNG ADULT" MEANS A PERSON CHARGED WITH A CRIME ALLEGED TO HAVE
 BEEN COMMITTED WHEN HE OR SHE WAS AT LEAST NINETEEN YEARS OLD  AND  LESS
 THAN TWENTY-SIX YEARS OLD.
   2.  "ELIGIBLE  YOUNG  ADULT"  MEANS  A PERSON WHO IS AT LEAST NINETEEN
 YEARS OLD AND LESS THAN TWENTY-SIX YEARS OLD WHO IS ELIGIBLE  FOR  YOUNG
 ADULT  STATUS.  EVERY  YOUNG  ADULT  IS  SO  ELIGIBLE  UNLESS:   (A) THE
 CONVICTION TO BE REPLACED BY YOUNG ADULT ADJUDICATION IS FOR (I) A CLASS
 A-I OR CLASS A-II FELONY, OR (II) RAPE IN  THE  FIRST  DEGREE,  CRIMINAL
 SEXUAL  ACT  IN  THE FIRST DEGREE, OR AGGRAVATED SEXUAL ABUSE, EXCEPT AS
 PROVIDED IN SUBDIVISION THREE OF THIS SECTION, OR (B) SUCH  YOUNG  ADULT
 HAS PREVIOUSLY BEEN CONVICTED AND SENTENCED FOR A FELONY.
   3.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
 A YOUNG ADULT WHO HAS BEEN CONVICTED OF RAPE IN THE FIRST DEGREE, CRIMI-
 NAL SEXUAL ACT IN THE FIRST DEGREE, OR AGGRAVATED  SEXUAL  ABUSE  IS  AN
 ELIGIBLE YOUTH IF THE COURT DETERMINES, WITHOUT APPLYING THE PRESUMPTION
 DEFINED  IN  PARAGRAPH  (B) OF SUBDIVISION ONE OF SECTION 721.20 OF THIS
 ARTICLE, THAT THE INTEREST OF JUSTICE WOULD BE SERVED BY  RELIEVING  THE
 YOUNG  ADULT  FROM  THE ONUS OF A CRIMINAL RECORD AND BY NOT IMPOSING AN
 INDETERMINATE SENTENCE OF MORE THAN FOUR YEARS.  IN MAKING SUCH DETERMI-
 NATION, THE COURT SHALL WEIGH THE FOLLOWING FACTORS:
   (A) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE WITH  DUE  REGARD
 TO THE EXTENT OF THE HARM CAUSED BY IT.
   (B)  ANY MITIGATING CIRCUMSTANCES THAT BEAR ON THE MANNER IN WHICH THE
 CRIME WAS COMMITTED.
   (C) WHERE THE YOUNG ADULT WAS NOT THE SOLE PARTICIPANT IN  THE  CRIME,
 THE  LEVEL  AND  EXTENT OF HIS OR HER DIRECT INVOLVEMENT IN THE CRIMINAL
 ACTIVITY.
   (D) THE HISTORY AND BACKGROUND OF THE YOUNG ADULT.
   (E) PROSPECTS FOR REHABILITATION OF THE YOUNG ADULT  OR  OPPORTUNITIES
 FOR  INTERVENTIONS THAT WOULD ASSIST THE YOUNG ADULT IN LEADING A LAW-A-
 BIDING LIFE.
   WHERE THE COURT MAKES A YOUNG ADULT STATUS FINDING,  THE  COURT  SHALL
 MAKE  A  STATEMENT ON THE RECORD OF THE REASONS FOR ITS DETERMINATION, A
 TRANSCRIPT OF WHICH SHALL BE FORWARDED TO THE STATE DIVISION OF CRIMINAL
 JUSTICE SERVICES, TO BE KEPT IN ACCORDANCE WITH THE PROVISIONS OF SUBDI-
 VISION THREE OF SECTION EIGHT HUNDRED THIRTY-SEVEN-A  OF  THE  EXECUTIVE
 LAW.
   4.    "YOUNG  ADULT  FINDING"  MEANS  A  FINDING,  SUBSTITUTED FOR THE
 CONVICTION OF AN ELIGIBLE YOUNG ADULT, PURSUANT TO A DETERMINATION  THAT
 THE ELIGIBLE YOUNG ADULT SHALL BE GRANTED YOUNG ADULT STATUS.
   5.  "YOUNG  ADULT  SENTENCE"  MEANS  THE SENTENCE IMPOSED UPON A YOUNG
 ADULT FINDING.
   6. "YOUNG ADULT ADJUDICATION" MEANS AN  ADJUDICATION  COMPRISED  OF  A
 YOUNG  ADULT FINDING AND THE YOUNG ADULT SENTENCE IMPOSED THEREON AND IS
 COMPLETED BY IMPOSITION AND ENTRY OF THE YOUNG ADULT SENTENCE.
 § 721.15 YOUNG ADULT STATUS PROCEDURE; SEALING OF ACCUSATORY INSTRUMENT;
            PRIVACY OF PROCEEDINGS; PRELIMINARY INSTRUCTIONS TO JURY.
   1. WHEN AN ACCUSATORY INSTRUMENT AGAINST AN APPARENTLY ELIGIBLE  YOUNG
 ADULT  IS  FILED WITH A COURT, IT SHALL BE FILED AS A SEALED INSTRUMENT,
 THOUGH ONLY WITH RESPECT TO THE PUBLIC.
   2. WHEN AN ELIGIBLE YOUNG ADULT IS INITIALLY ARRAIGNED UPON AN ACCUSA-
 TORY INSTRUMENT, SUCH ARRAIGNMENT AND  ALL  PROCEEDINGS  IN  THE  ACTION
 THEREAFTER  MAY,  IN THE DISCRETION OF THE COURT AND WITH THE CONSENT OF
 THE ACCUSED, BE CONDUCTED IN PRIVATE.

 S. 5749--A                          7
 
 § 721.20 YOUNG ADULT STATUS DETERMINATION; WHEN AND HOW MADE;  PROCEDURE
            THEREUPON.
   1. UPON CONVICTION OF AN ELIGIBLE YOUNG ADULT, THE COURT SHALL ORDER A
 PRE-SENTENCE  INVESTIGATION OF THE DEFENDANT. AFTER RECEIPT OF A WRITTEN
 REPORT OF THE INVESTIGATION AND AT THE TIME OF PRONOUNCING SENTENCE  THE
 COURT  SHALL  DETERMINE  WHETHER  OR NOT THE ELIGIBLE YOUTH WILL RECEIVE
 YOUNG ADULT STATUS.  SUCH DETERMINATION SHALL BE IN ACCORDANCE WITH  THE
 FOLLOWING CRITERIA:
   (A) IF THE ELIGIBLE YOUNG ADULT IS CHARGED WITH A MISDEMEANOR OFFENSE,
 THE COURT SHALL GRANT HIM OR HER YOUNG ADULT STATUS;
   (B)  IN  ALL  OTHER  CASES,  EXCEPT RAPE IN THE FIRST DEGREE, CRIMINAL
 SEXUAL ACT IN THE FIRST DEGREE, AND AGGRAVATED SEXUAL ABUSE, THERE SHALL
 BE A PRESUMPTION TO GRANT ELIGIBLE YOUNG ADULT  STATUS  TO  AN  ELIGIBLE
 YOUNG  ADULT  IN  ORDER  TO  RELIEVE SUCH YOUNG ADULT FROM THE ONUS OF A
 CRIMINAL RECORD, OTHER CONSEQUENCES OF A CRIMINAL  CONVICTION,  AND  THE
 IMPOSITION  OF  AN  INDETERMINATE TERM OF IMPRISONMENT OF MORE THAN FOUR
 YEARS.  UPON MOTION ON NOT LESS THAN SEVEN DAYS' NOTICE, THE  PROSECUTOR
 MAY  CHALLENGE  THE  PRESUMPTION TO GRANT YOUNG ADULT STATUS.  THE COURT
 SHALL GRANT YOUNG ADULT STATUS UNLESS THE PROSECUTOR REBUTS THE PRESUMP-
 TION AND ESTABLISHES BY CLEAR AND CONVINCING EVIDENCE THAT THE  CRITERIA
 SET  FORTH  IN SUBDIVISION TWO OF SECTION 721.10 OF THIS ARTICLE REQUIRE
 THAT YOUNG ADULT STATUS BE DENIED.
   2. WHERE AN ELIGIBLE YOUNG ADULT IS CONVICTED OF TWO OR MORE CRIMES OR
 OFFENSES SET FORTH IN SEPARATE COUNTS OF AN ACCUSATORY INSTRUMENT OR SET
 FORTH IN TWO OR  MORE  ACCUSATORY  INSTRUMENTS  CONSOLIDATED  FOR  TRIAL
 PURPOSES,  THE  COURT SHALL NOT GRANT HIM OR HER YOUNG ADULT STATUS WITH
 RESPECT TO ANY SUCH CONVICTION  PURSUANT  TO  SUBDIVISION  ONE  OF  THIS
 SECTION  UNLESS  IT  GRANTS  YOUNG ADULT STATUS WITH RESPECT TO ALL SUCH
 CONVICTIONS.
   3. UPON DETERMINING TO GRANT  YOUNG  ADULT  STATUS,  THE  COURT  SHALL
 DIRECT  THAT  THE  CONVICTION  BE DEEMED VACATED AND REPLACED BY A YOUNG
 ADULT STATUS FINDING; AND THE  COURT  SHALL  SENTENCE  THE  YOUNG  ADULT
 PURSUANT TO SECTION 60.02 OF THE PENAL LAW.
   4.  UPON DETERMINING THAT AN ELIGIBLE YOUNG ADULT SHALL NOT BE GRANTED
 YOUNG ADULT STATUS, THE COURT  SHALL  ORDER  THE  ACCUSATORY  INSTRUMENT
 UNSEALED  AND  CONTINUE  THE ACTION TO JUDGMENT PURSUANT TO THE ORDINARY
 RULES GOVERNING CRIMINAL PROSECUTIONS.
 § 721.30 YOUNG ADULT ADJUDICATION; POST-JUDGMENT MOTIONS AND APPEAL.
   THE PROVISIONS OF THIS CHAPTER, GOVERNING THE MAKING AND DETERMINATION
 OF POST-JUDGMENT MOTIONS AND THE TAKING AND DETERMINATION OF APPEALS  IN
 CRIMINAL  CASES, APPLY TO POST JUDGMENT MOTIONS AND APPEALS WITH RESPECT
 TO YOUNG ADULT ADJUDICATIONS WHEREVER SUCH PROVISIONS CAN REASONABLY  BE
 SO APPLIED.
 § 721.35 YOUNG ADULT ADJUDICATION; EFFECT THEREOF; RECORDS.
   1.  A  YOUNG  ADULT ADJUDICATION IS NOT A JUDGMENT OF CONVICTION FOR A
 CRIME OR ANY OTHER OFFENSE, AND DOES NOT OPERATE AS  A  DISQUALIFICATION
 OF  ANY PERSON SO ADJUDGED TO HOLD PUBLIC OFFICE OR PUBLIC EMPLOYMENT OR
 TO RECEIVE ANY LICENSE GRANTED BY PUBLIC AUTHORITY BUT SHALL BE DEEMED A
 CONVICTION ONLY FOR THE PURPOSES OF TRANSFER OF SUPERVISION AND  CUSTODY
 PURSUANT TO SECTION TWO HUNDRED FIFTY-NINE-M OF THE EXECUTIVE LAW.
   2.  UPON  RECEIPT  OF NOTIFICATION OF A YOUNG ADULT ADJUDICATION, SUCH
 ADJUDICATION AND ALL RECORDS THEREOF SHALL BE SEALED IN THE SAME  MANNER
 AS  DEFINED  IN SECTION 720.35 OF THIS TITLE; AND SUCH RECORDS SHALL NOT
 BE AVAILABLE EXCEPT WHERE  SPECIFICALLY  REQUIRED  BY  STATUTE  OR  UPON
 SPECIFIC AUTHORIZATION BY THE COURT.

 S. 5749--A                          8

   §  9.  The  criminal  procedure law is amended by adding a new section
 440.49 to read as follows:
 § 440.49 RESENTENCING; YOUTHFUL OFFENDER.
   1.  ANY  PERSON  UNDER THE AGE OF TWENTY-SIX AT THE TIME THE CRIME WAS
 COMMITTED WHO WAS CONVICTED OF A MISDEMEANOR OR  VIOLATION  OFFENSE  WHO
 WOULD  HAVE  BEEN CONSIDERED AN "ELIGIBLE YOUTH" PURSUANT TO SUBDIVISION
 TWO OF SECTION 720.10 OF THIS CHAPTER  AND  AN  "ELIGIBLE  YOUNG  ADULT"
 PURSUANT  TO SUBDIVISION TWO OF SECTION 721.10 OF THIS CHAPTER AFTER THE
 EFFECTIVE DATE OF THIS SECTION SHALL HAVE THEIR CONVICTION AUTOMATICALLY
 REPLACED WITH A YOUTHFUL OFFENDER ADJUDICATION OR YOUNG  ADULT  OFFENDER
 ADJUDICATION  WITHIN  SIX  MONTHS  OF  THE STATUTE'S EFFECTIVE DATE. THE
 DIVISION OF CRIMINAL  JUSTICE  SERVICES  SHALL  ESTABLISH  STANDARDS  TO
 ENSURE  THAT  SUCH PROCESS OCCURS AUTOMATICALLY FOR ALL PERSONS PRIOR TO
 SUCH SIX MONTH DEADLINE.
   2. ANY PERSON UNDER THE AGE OF TWENTY-SIX AT THE TIME  THE  CRIME  WAS
 COMMITTED WHO WOULD HAVE BEEN CONSIDERED AN "ELIGIBLE YOUTH" PURSUANT TO
 SUBDIVISION TWO OF SECTION 720.10 OF THIS CHAPTER AND AN "ELIGIBLE YOUNG
 ADULT"  PURSUANT  TO  SUBDIVISION  TWO OF SECTION 721.10 OF THIS CHAPTER
 AFTER THE EFFECTIVE DATE OF THIS SECTION, UPON NOTICE TO THE APPROPRIATE
 DISTRICT ATTORNEY, MAY PETITION TO BE RESENTENCED TO A YOUTHFUL OFFENDER
 ADJUDICATION OR YOUNG ADULT OFFENDER  ADJUDICATION  IN  ACCORDANCE  WITH
 ARTICLES SEVEN HUNDRED TWENTY AND SEVEN HUNDRED TWENTY-ONE OF THIS CHAP-
 TER IN THE COURT WHICH IMPOSED SUCH SENTENCE. EVEN IF A PERSON IS ELIGI-
 BLE FOR AUTOMATIC YOUTHFUL OFFENDER ADJUDICATION OR YOUNG ADULT OFFENDER
 ADJUDICATION  SEALING  PURSUANT TO SUBDIVISION ONE OF THIS SECTION, SUCH
 PERSON MAY STILL PETITION THE COURT FOR RESENTENCING PRIOR  TO  THE  SIX
 MONTH PERIOD DESCRIBED IN SUBDIVISION ONE OF THIS SECTION.
   3. THE COURT SHALL CONSIDER THE FACTORS OUTLINED IN SUBDIVISION TWO OF
 SECTION  720.20 AND SUBDIVISION TWO OF SECTION 721.20 OF THIS CHAPTER IN
 DETERMINING WHETHER OR NOT A PERSON WHO  WOULD  HAVE  BEEN  AN  ELIGIBLE
 YOUTH  MAY  OR  SHALL BE GRANTED YOUTHFUL OFFENDER STATUS OR YOUNG ADULT
 OFFENDER STATUS FOR THE PRIOR CONVICTION.
   (A) IN CASES WHERE GRANTING YOUTHFUL OFFENDER STATUS  OR  YOUNG  ADULT
 OFFENDER  STATUS  IS  DISCRETIONARY AND NOT REQUIRED BY PARAGRAPH (A) OF
 SUBDIVISION ONE OF SECTION 720.20 OR PARAGRAPH (A) OF SUBDIVISION ONE OF
 SECTION 721.20 OF THIS CHAPTER, THE COURT SHALL ALSO CONSIDER ANY  ADDI-
 TIONAL EVIDENCE PRESENTED BY THE PERSON SEEKING RESENTENCING, INCLUDING:
   (I)  THE  AMOUNT  OF TIME THAT HAS ELAPSED SINCE THE PETITIONER'S LAST
 CONVICTION;
   (II) THE CHARACTER OF THE PETITIONER, INCLUDING ANY MEASURES  THAT  HE
 OR SHE HAS TAKEN TOWARDS REHABILITATION, SUCH AS PARTICIPATING IN TREAT-
 MENT  PROGRAMS,  WORK,  OR  SCHOOLING,  AND  PARTICIPATING  IN COMMUNITY
 SERVICE OR OTHER VOLUNTEER PROGRAMS;
   (III) THE CIRCUMSTANCES AND SERIOUSNESS OF THE OFFENSE FOR  WHICH  THE
 PETITIONER IS SEEKING RELIEF;
   (IV)  THE  IMPACT  OF  SEALING THE PETITIONER'S RECORD UPON HIS OR HER
 REHABILITATION AND UPON HIS OR HER SUCCESSFUL AND PRODUCTIVE REENTRY AND
 REINTEGRATION INTO SOCIETY; AND
   (V) THE IMPACT OF COLLATERAL CONSEQUENCES OF  THE  CONVICTION  ON  THE
 DEFENDANT AND HIS OR HER FAMILY.
   (B)  THE  DISTRICT  ATTORNEY  MAY  CHALLENGE  THE PRESUMPTION TO GRANT
 YOUTHFUL OFFENDER STATUS PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF
 SECTION 720.20 AND PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 721.20 OF
 THIS CHAPTER.
   4. SUBDIVISION ONE OF SECTION SEVEN HUNDRED SEVENTEEN AND  SUBDIVISION
 FOUR  OF  SECTION  SEVEN  HUNDRED  TWENTY-TWO OF THE COUNTY LAW, AND THE

 S. 5749--A                          9

 RELATED PROVISIONS OF ARTICLE EIGHTEEN-A OF SUCH LAW SHALL APPLY TO  THE
 PREPARATION AND PROCEEDINGS ON MOTIONS PURSUANT TO THIS SECTION, INCLUD-
 ING ANY APPEALS.
   §  10.  Section  450.10  of  the  criminal procedure law is amended by
 adding a new subdivision 6 to read as follows:
   6. AN ORDER DENYING A MOTION, MADE PURSUANT TO SECTION 440.49 OF  THIS
 TITLE, FOR GRANTING YOUTHFUL OFFENDER OR YOUNG ADULT STATUS.
   §  11.  Subdivision  2  of section 60.00 of the penal law, as added by
 chapter 481 of the laws of 1978, is amended and a new subdivision  3  is
 added to read as follows:
   2.  The sole provision of this article that shall apply in the case of
 an offense committed by a juvenile offender [is] OR A DEFENDANT  ADJUDI-
 CATED  A YOUTHFUL OFFENDER OR YOUNG ADULT IN section 60.10 of this arti-
 cle and no other provisions of this article shall be deemed or construed
 to apply in any such case.
   3. THE SOLE PROVISIONS OF THIS ARTICLE THAT MAY APPLY IN THE  CASE  OF
 AN  OFFENSE  COMMITTED BY A DEFENDANT ADJUDICATED A YOUTHFUL OFFENDER OR
 YOUNG ADULT STATUS ARE SECTIONS 60.02 AND 60.10-A OF THIS ARTICLE AND NO
 OTHER PROVISIONS OF THIS ARTICLE SHALL BE DEEMED OR CONSTRUED  TO  APPLY
 IN ANY SUCH CASE.
   §  12.  Subdivisions  1  and  2  of section 60.02 of the penal law, as
 amended by chapter 471 of the laws of 1980, are amended and a new subdi-
 vision 3 is added to read as follows:
   (1) If the sentence is to be imposed upon a youthful offender OR YOUNG
 ADULT STATUS finding which has been substituted for a conviction  of  an
 offense other than a felony, the court must impose a sentence authorized
 for  the  offense for which the youthful offender OR YOUNG ADULT finding
 was substituted[, except that  if  the  youthful  offender  finding  was
 entered  pursuant  to paragraph (b) of subdivision one of section 720.20
 of the criminal procedure law,] WHERE THE CONVICTION IS FOR A  MISDEMEA-
 NOR  the  court  must  not impose a definite or intermittent sentence of
 imprisonment with a term of more than six months; or
   (2) If the sentence is to be imposed upon a youthful offender  finding
 which  has  been  substituted for a conviction for any felony, the court
 must impose a sentence authorized to be imposed upon a person  convicted
 of a class E felony [provided, however, that the court must not impose a
 sentence  of  conditional  discharge  or  unconditional discharge if the
 youthful offender finding was substituted for a conviction of  a  felony
 defined in article two hundred twenty of this chapter].
   3.  IF THE SENTENCE IS TO BE IMPOSED UPON A YOUNG ADULT STATUS FINDING
 WHICH HAS BEEN SUBSTITUTED FOR A CONVICTION FOR ANY  FELONY,  THE  COURT
 SHALL IMPOSE A SENTENCE AUTHORIZED TO BE IMPOSED UPON A PERSON CONVICTED
 OF A CLASS E FELONY.
   §  13.  Subdivision 4 of section 80.00 of the penal law, as amended by
 chapter 338 of the laws of 1989, is amended to read as follows:
   4. Exception. The provisions of this section  shall  not  apply  to  a
 corporation,  OR  TO  A  YOUTHFUL OFFENDER FINDING AS DEFINED IN SECTION
 720.10 OF THE CRIMINAL PROCEDURE LAW OR YOUNG ADULT  STATUS  FINDING  AS
 DEFINED IN SECTION 721.10 OF THE CRIMINAL PROCEDURE LAW.
   §  14.  Subdivision  6 of section 80.05 of the penal law is amended to
 read as follows:
   6. Exception. The provisions of this section  shall  not  apply  to  a
 corporation,  OR  TO  A  YOUTHFUL OFFENDER FINDING AS DEFINED IN SECTION
 720.10 OF THE CRIMINAL PROCEDURE LAW OR YOUNG ADULT  STATUS  FINDING  AS
 DEFINED IN SECTION 721.10 OF THE CRIMINAL PROCEDURE LAW.

 S. 5749--A                         10
 
   §  15.  Subdivision 7 of section 340.40 of the criminal procedure law,
 as added by chapter 981 of the laws of  1971,  is  amended  to  read  as
 follows:
   7.  Notwithstanding any other provision of law, [in any local criminal
 court] the trial of a person who is an eligible youth within the meaning
 of the youthful offender procedure set forth in  article  seven  hundred
 twenty  [and  who  has  not  prior  to  commencement  of  the trial been
 convicted of a crime or adjudicated a youthful offender must be] OF THIS
 CHAPTER SHALL BE A JURY TRIAL OR, WHERE THE ELIGIBLE YOUTH HAS WAIVED  A
 JURY  TRIAL  PURSUANT  TO  SECTION  320.10  OF THIS PART, a single judge
 trial.
   § 16. This act shall  take  effect  on  the  first  of  November  next
 succeeding  the date on which it shall have become a law and shall apply
 to any criminal case pending on such effective date.

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Senate Bill S5749A

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