S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6409
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               April 6, 2023
                                ___________
 
 Introduced by M. of A. BARCLAY, GANDOLFO, NORRIS, ANGELINO, WALSH, SMUL-
   LEN,   PALMESANO,   DURSO,  GALLAHAN,  DeSTEFANO,  HAWLEY,  MORINELLO,
   BENDETT, MANKTELOW, FLOOD, MCGOWAN, REILLY, GRAY, MIKULIN,  TANNOUSIS,
   TAGUE,  SIMPSON,  E. BROWN,  SLATER,  RA,  BEEPHAN,  NOVAKHOV, FRIEND,
   BLUMENCRANZ,  LEMONDES,  J. M. GIGLIO,   MILLER,   BYRNES,   K. BROWN,
   J. A. GIGLIO,  CURRAN, FITZPATRICK, MAHER -- read once and referred to
   the Committee on Judiciary
 
 AN ACT to amend the criminal procedure law and the family court act,  in
   relation  to  the  use of records and information in the family court;
   and to repeal certain provisions of the criminal procedure law  relat-
   ing thereto
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraphs (d) and (f) of subdivision 1 of  section  722.23
 of  the  criminal  procedure law, as added by section 1-a of part WWW of
 chapter 59 of the laws of 2017, are amended to read as follows:
   (d) The court shall deny the motion to prevent removal of  the  action
 in  youth part unless the court makes a determination upon RECEIVING AND
 CONSIDERING THE RECORDS AND INFORMATION ON FILE WITH  THE  FAMILY  COURT
 AND  UPON  such motion by the district attorney that [extraordinary] ONE
 OR MORE circumstances exist that should  prevent  the  transfer  of  the
 action to family court INCLUDING, BUT NOT LIMITED TO:
   (I)  THE DEFENDANT CAUSED SERIOUS PHYSICAL INJURY OR DEATH TO A PERSON
 OTHER THAN A PARTICIPANT IN THE OFFENSE; OR
   (II)   THE DEFENDANT DISPLAYED OR DISPLAYED  WHAT  APPEARED  TO  BE  A
 FIREARM,  SHOTGUN, RIFLE OR DEADLY WEAPON AS DEFINED IN THE PENAL LAW IN
 FURTHERANCE OF SUCH OFFENSE; OR
   (III)  THE DEFENDANT POSSESSED A FIREARM OR WEAPON  AS  PRESCRIBED  IN
 ARTICLE  TWO  HUNDRED  SIXTY-FIVE  OR ARTICLE FOUR HUNDRED NINETY OF THE
 PENAL LAW; OR
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10346-02-3
 A. 6409                             2
              

 
   (IV) THE DEFENDANT UNLAWFULLY  ENGAGED  IN  SEXUAL  INTERCOURSE,  ORAL
 SEXUAL  CONDUCT,  ANAL  SEXUAL  CONDUCT  OR SEXUAL CONTACT AS DEFINED IN
 SECTION 130.00 OF THE PENAL LAW.
   (f)  For  the  purposes of this section, [there shall be a presumption
 against custody and] case planning services shall be made  available  to
 the defendant.
   § 2. Paragraphs (c), (d) and (e) of subdivision 2 of section 722.23 of
 the criminal procedure law, as added by section 1-a of part WWW of chap-
 ter 59 of the laws of 2017, are amended to read as follows:
   (c)  The  court  shall order the action to [proceed in accordance with
 subdivision one of this section] REMAIN  IN  YOUTH  PART  unless,  after
 reviewing  the papers and hearing from the parties, the court determines
 in writing that [the district attorney proved by a preponderance of  the
 evidence  one  or  more  of the following as set forth in the accusatory
 instrument:
   (i) the defendant caused significant physical injury to a person other
 than a participant in the offense; or
   (ii) the defendant displayed a firearm, shotgun, rifle or deadly weap-
 on as defined in the penal law in furtherance of such offense; or
   (iii) the defendant unlawfully engaged  in  sexual  intercourse,  oral
 sexual  conduct,  anal  sexual  conduct  or sexual contact as defined in
 section 130.00 of the penal law.
   (d) Where the court makes a determination that the  action  shall  not
 proceed  in  accordance  with subdivision one of this section, such] ALL
 PARTIES AGREE THAT THE ACTION MAY BE REMOVED TO FAMILY COURT IN  ACCORD-
 ANCE  WITH  SUBDIVISION  FIVE  OF  SECTION 722.21 OF THIS ARTICLE.  SUCH
 determination shall be made in writing [or] AND on the record and  shall
 include  findings  of  fact and to the extent practicable conclusions of
 law.
   [(e)] (D) Nothing in this subdivision shall preclude,  and  the  court
 may  order,  the  removal of an action to family court where all parties
 agree or pursuant to this chapter.
   § 3. Section 725.15 of the criminal procedure law is REPEALED.
   § 4. Subdivision 4 of section 350.3 of the family court act, as  added
 by  section  70-a  of  part  WWW  of  chapter 59 of the laws of 2017, is
 amended to read as follows:
   4. The victim has the right to make a statement  with  regard  to  any
 matter relevant to the question of disposition. If the victim chooses to
 make  a  statement,  such individual shall notify the court at least ten
 days prior to the date of the dispositional  hearing.  The  court  shall
 notify the respondent no less than seven days prior to the dispositional
 hearing  of  the  victim's  intent to make a statement. The victim shall
 [not] be made aware of the final disposition of the case.
   § 5. Section 381.2 of the family court act, as added by chapter 920 of
 the laws of 1982 and subdivision 2 as amended by chapter 926 of the laws
 of 1982, is amended to read as follows:
   § 381.2. Use of records in other courts. [1. Neither the fact  that  a
 person  was before the family court under this article for a hearing nor
 any confession, admission or statement made by him to the  court  or  to
 any  officer  thereof  in  any  stage of the proceeding is admissible as
 evidence against him or his interests in any other court.
   2. Notwithstanding the provisions of subdivision one, another] ANOTHER
 court[, in imposing sentence upon an adult after conviction] may receive
 and consider the records and information on file with the family  court,
 unless such records and information have been sealed pursuant to section
 375.1.
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   §  6.  Paragraph  (b)  of subdivision 2 of section 381.3 of the family
 court act, as amended by chapter 926 of the laws of 1982, is amended  to
 read as follows:
   (b)  if  the  respondent  is  subsequently  convicted  of  a  crime OR
 ARRAIGNED PURSUANT TO SECTION 722.21 OF THE CRIMINAL PROCEDURE LAW, to a
 judge of the court in which he was convicted,  unless  such  record  has
 been sealed pursuant to section 375.1.
   §  7. Paragraph (g-1) of subdivision 5 of section 220.10 of the crimi-
 nal procedure law, as added by chapter 809  of  the  laws  of  2021,  is
 amended to read as follows:
   (g-1)  Where  a defendant is an adolescent offender, the provisions of
 paragraphs (a), (b), (c) and (d) of this subdivision shall [not]  apply.
 Where  the  plea  is  to an offense constituting a misdemeanor, the plea
 shall be deemed replaced by an  order  of  fact-finding  in  a  juvenile
 delinquency  proceeding,  pursuant  to section 346.1 of the family court
 act, and the action shall be removed to the family court  in  accordance
 with  article  seven hundred twenty-five of this chapter. Where the plea
 is to an offense constituting a felony, the court may remove the  action
 to  the family court in accordance with section 722.23 and article seven
 hundred twenty-five of this chapter.
   § 8. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.