NY State Senate Bill S1099

Current Bill Status - In Senate Committee Finance Committee

Introduced
In Committee
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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 13, 2023	reported and committed to finance
Jan 24, 2023	reported and committed to codes
Jan 10, 2023	referred to children and families

Votes

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Feb 13, 2023 - Codes committee Vote

S1099

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Jan 24, 2023 - Children and Families committee Vote

S1099

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

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Children and Families Committee Vote: Jan 24, 2023

aye (5)

nay (2)

Co-Sponsors

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S1099 (ACTIVE) - Details

See Assembly Version of this Bill:: A1963
Current Committee:: Senate Finance
Law Section:: Family Court Act
Laws Affected:: Amd §§305.2 & 724, Fam Ct Act; amd §§140.20, 140.27 & 140.40, CP L
Versions Introduced in Other Legislative Sessions:: 2019-2020: S4980, A6982
2021-2022: S2800, A5891

S1099 (ACTIVE) - Summary

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

S1099 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S1099

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the family court act and the criminal procedure law, in
relation to the custodial interrogation of juveniles by law enforcement

 
PURPOSE:

This bill makes a number of changes to the Family Court Act to clarify
and protect the rights of children in the custody of law enforcement and
makes corresponding changes to the Criminal Procedure Law to address
children arrested as juvenile offenders and adolescent offenders. The
bill would require that children under 18 consult with an attorney
before they can be subjected to custodial interrogation by law enforce-
ment, thereby ensuring any waiver of rights under Miranda is genuinely
knowing, voluntary, and intelligent. The bill also requires that a child
arrested without a warrant be brought directly to court, as opposed to
the police station, if a parent or legally responsible adult is not
expected to appear for them and they are not being questioned, unless
otherwise required under the Criminal Procedure Law. It also defines the
term "necessary," which circumscribes the limited circumstances under

which custodial interrogation of such a child is permissible.

 
SUMMARY OF PROVISIONS:

Section One amends FCA § 305.2(3) to make clear that law enforcement's
obligation to "immediately" notify a parent or person legally responsi-
ble (PLR) that their child has been taken into custody requires that
this notification take place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location.

Section Two amends FCA § 305.2(4)(a) to state that when law enforcement
has notified an arrested child's pare t or PLR and reasonably believes
that the parent or PLR will appear for the child, law enforcement shall
take that child to his home, the station house, or another agreed upon
location to release him to his parent or PLR.

Section Three amends FCA § 305.2(4)(b) to state that when law enforce-
ment does not reasonably believe that an arrested child's parent or PLR
will appear for the child, law enforcement shall take that child to
family court or, if family court is not in session, to the designated
magistrate for the child's initial appearance under FCA § 307.4.

Section Four amends FCA § 305.2(4)(c) to conform with other amended
subsections and clarify that an arrested child shall only be taken to
detention if the officer did not release the child or bring the child to
family court or the designated magistrate.

Section Five amends FCA c 305.2(5) by deleting a clause related to the
circumstances of questioning, which is moved to the new FCA § 305.2(7)
(see Section Seven, below).

Section Six amends FCA for conformity only, by deleting the phrase "In
all other cases."


Section Seven amends and renumbers FCA 305.2 (7) to FCA g 305.2(8) and
adds a new FCA 305.2(7) which clarifies that an officer may determine
that questioning of a child is necessary only when the officer "reason-
ably determines that the child's life or health, or the life or health
of another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."
Section Seven also amends FCA § 305.2(8) to state that no child shall be
questioned under this section unless and until "the child has consulted
with an attorney in person, by telephone, or by video conference," and
establishes that this consultation may not be waived.

Section Eight creates FCA § 305.2(9), which establishes that when law
enforcement determines that questioning of a child suspect is necessary,
"in determining the reasonable amount of time for questioning, the offi-
cer shall consider, among other things, the child's age and develop-
mental ability, and the presence or absence of the child's parents or
other persons legally responsible for the child's care."

Section Nine creates FCA § 305.2(10), which establishes that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.

Section 10 amends FCA § 724(a) to make clear that law enforcement's
obligation with respect to a child taken into custody as a person in
need of supervision to "immediately" notify a parent or person legally
responsible that their child has been taken into custody requires that
this notification takes place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location.

Section 10 also mends FCA § 724(b) by removing language relating to when
law enforcement deems questioning of the child necessary, renumbers FCA
§ 724(d) to Cu § 724(e), and inserts a new FCA § 724(d), which clarifies
that an officer may determine that questioning of a child is necessary
only when the officer "reasonably determines that the child's life or
health, or the life or health of another individual, is in imminent
danger and that the child may have information that would assist the
officer in taking protective action. FCA § 724(e) now provides that in
addition to the child's age and the presence or absence of his parents
or other person legally responsible for his care, parental notification
shall be a factor considered in determining the suitability and reason-
able period of time for questioning the child.

Section 10 also creates FCA § 724(f), which provides that statements
made to law enforcement prior to the commencement of a fact-finding
hearing may not be admitted into evidence at a fact-finding hearing.

Section Eleven amends CPL § 140.20(6) to create separate paragraphs and
in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he/she was taken into
custody to the police station or any other location.

Section Eleven also, in proposed CPL § 140.20(6) (b), which already
enforcement when necessary, defines necessary as when the officer
"reasonably determines that the child's life or health, or the life or
health of another individual, is in imminent danger that the child may
have information that would assist the officer in taking protective
action."

Section Eleven also - in proposed CPL 14020(6)(c) - adds the provision
that no child shall be questioned under this section unless and until
the child has consulted with an attorney in person, by telephone, or by
video conference,' and establishes that this consultation may not be
waived.

Section Eleven also creates CPL 140.20(6)(e) to establish that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.

Section Twelve amends CPL 140.27(5) to create separate paragraphs and in
paragraph (a) makes clear that law enforcement's obligation with respect
to a child taken into custody as a juvenile offender or as a person
sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a
parent or person legally responsible that their child has been taken
into custody requires that this notification takes place before that
child can be taken from the location at which he or she was taken into
custody to the police station or any other location.

Section Twelve also, in proposed CPL 8 140.27(5) (b), which already
Provides that a child suspect shall only be questioned by law enforce-
ment w n necessary, defines necessary as when the Officer "reasonably
determines that the child's life or health, or the life or health of
another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."

Section Twelve also, in proposed CPL 140.27(5)(c), adds the provision
that no child shall be questioned under this section unless and until
the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Twelve also creates CPL g 140.27(5)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

Section Thirteen amends CPL g 140.40(5) to create separate paragraphs
and in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he or she was taken
into custody to the police station or any other location.

Section Thirteen also, in proposed CPL g 140.40(5)(b) which already
provides that a child suspect shall only be questioned by law enforce-
ment when necessary, defines necessary as when the officer "reasonably
determines that the child's life or health, or the life or health of
another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."

Section Thirteen also, in proposed CPL 5 140.40(5)(c) adds the provision
that no child shall be questioned under this section unless and until
"the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Thirteen also creates CPL A 140.40(5)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

 
EXISTING LAW:

Existing law in New York State does not ensure that children under 18
years old - with all of their inherent developmental limitations - are
adequately and appropriately able to protect their right to remain
silent pursuant to the 5th Amendment of the United States Constitution.
The Family Court Act and the Criminal Procedure Law already require law
enforcement to "immediately" notify the parent or person legally respon-
sible of a child's arrest. The term "immediate," however, is undefined
under current law, and in practice, law enforcement regularly brings
arrested children to the police station house before notifying parents
or persons legally responsible The statutes also state that law enforce-
ment may only interrogate children when "necessary," but do not define
that crucial term. This ambiguity not only places vulnerable youth at
risk of being unreasonably interrogated, but it also forces law enforce-
ment to contend with uncertainty about what they are permitted to do
under the law, and leaves the courts with little guidance when called
uoon to interpret this requirement. Also under current law, when the
police take a youth into custody and wish to interrogate that youth, the
police must advise the child of his/her right to rem ain silent and,
whenever possible, notify a parent or responsible adult to assist the
youth in deciding whether to waive this right.  Family Court Act305.2;
Criminal Procedure Law 140.20(6). This process does not prevent youth
from waiving their Miranda rights nor does it ensure that waiver is
knowing, voluntary and intelligent, as required by the Constitution.

 
JUSTIFICATION:

The bill makes three crucial changes to 305.2 of the Family Court Act
and to § 140.20(6), 140.27(5) and 140.40(5) of the Criminal Procedure
Law. First, it clarifies that law enforcement cannot take a child to the
station house until they have notified a parent or person legally
responsible. Second, it defines the term "necessary" in the context of
juvenile interrogation. Third, it requires that juveniles consult with
counsel before they can waive their rights under Miranda. The bill also
makes the first two changes to Family Court Act section 724.

Family Court Act §§ 305.2. and 724 and Criminal Procedure Law §§
140.20(6), 140.27(5) and 140.40(5) already require that law enforcement
immediately notify an arrested child's parent or legally responsible
adult that the child has been taken into custody; this proposal clari-
fies that immediate notification must take place before the officer
takes the child to another location. In an era in which all officers are
equipped with mobile phones, they are able to make contact with parents
without first taking children to the station house. In most cases, this
will also mean the officer will be able to make a more immediate deter-
mination whether to bring the child to the station house, to the family
court, or to another location permitted by statute.

Current law establishes that juveniles may only be interrogated by law
enforcement when it is necessary, but it does not define "necessary."
Under the proposal, questioning is defined to be necessary only when the
officer reasonably determines that the child's life or health, or the
life or health of another individual, is in imminent danger and that the
child may have information that would assist the officer in taking
protective action." Courts already grapple with decisions about when the
interrogation of children by law enforcement is warranted, and have
expressed the importance of clarity regarding both the circumstances
warranting interrogation and what constitutes a reasonable period of
time for questioning. See, for example, Matter of Louis D., 34 Misc,3d
427 (2011). By providing this dear definition of the term "necessary,"
the bill not only ensures that vulnerable young people are not subject
to unwarranted interrogation, but also provides law enforcement and the
courts with crucial direction and assurance about what is permissible
the law.

Under this proposal, unless questioning is necessary, after notifying a
parent, the officer may transport a child to his home, to another agreed
upon location, or to the station house for purposes of releasing the
child to the parent with a desk appearance ticket under Family Court Act
§ 305.2 or after securing a written promise from the parent to bring the
child to the designated lead agency at specified time and place under
Family Court Act § 724. When the officer does not have reason to believe
that the parent will appear for the child, unless questioning is neces-
sary, the officer may bring the child straightaway to family court,
before a designated magistrate, to the designated lead agency, or to
another location specified in § 305.2(4) or § 724. Under the proposed
Criminal Procedure Law provisions, unless questioning is necessary,
after notifying the parent, the officer may release the youth with a
desk appearance ticket or bring the youth to the appropriate court or
otherwise proceed according to the provisions of the CPL.

This bill would also establish that under Family Court Act § 305.2 and
Criminal Procedure Law § 140.20(6), 140.27(5) and 140.40(5), a child
suspect can only be questioned after consulting with an attorney by
phone, video, or in person. That consultation would be non-waivable, and
the taking of a statement without consultation with counsel, necessity,
or waiver of Miranda rights by a parent if present, would result in
suppression of the statement. Under Family Court Act § 724, a statement
would not be admissible into evidence at a fact finding hearing, since
the petitioner is usually a parent and thus the child can never have the
advice and assistance of a parent who does not have a conflict of inter-
est. This treatment is comparable to those statements given to the
designated lead agency before fact finding.  The decision to waive one's
constitutional right to be silent has enormous consequences, which is
why the law requires that the decision be "knowing, voluntary, and
intelligent." See Miranda v.  Arizona 384 U.S. 436 (1966). Because chil-
dren are fundamentally different from adults, different safeguards are

required in order for a child to make a knowing, voluntary and intelli-
gent decision about a Miranda waiver.

The importance of additional Miranda protections for adolescents is
well-grounded in science. It is firmly established that brain develop-
ment continues into adulthood, and in recent years, the scientific
community has come to a resounding consensus that the prefrontal cortex
of the brain which largely governs decision-making and judgment general-
ly does not mature until well after the teenage years.* In fact, the
research demonstrates that the brain undergoes a "rewiring" process that
is not complete until approximately 25 years of age.** As a result,
youth are not yet able to consider the long-term consequences of their
actions or to resist environmental pressures as well as adults. The
ability to consider the consequences of one's actions and vulnerability
to environmental pressure are precisely the kinds of issues at play in a
custodial interrogation setting.*** Adolescents especially struggle to
process information and make sound decisions in stressful situations,
such as during interrogation.**** Additionally, research shows that
adolescents - especially those in the justice system, who have high
rates of intellectual disability - often do not have the cognitive
skills necessary to understand the words or concepts in the Miranda
warnings. The consensus that adolescents' decision-making capabilities
are not fully developed and that, for this reason, young people require
unique legal protections has been and embraced by the United States
Supreme Court. Children are, in the Court's words, "generally less
mature and responsible than adults," they often lack the experience,
perspective, and judgment to recognize and avoid choices that could be
detrimental to them"; and they are more vulnerable or susceptible to ...
outside pressures than adults."  J.D.B.V. North Carolina, 131 S.Ct.
2394, 2397 (2011)(internal quotations omitted). In addition, the Supreme
Court has recognized that children "have limited understandings of the
criminal justice system and the roles of the institutional actors within
it" Graham v.  Florida, 560 U.S. 48, 78 (2010). Addressing the specific
context of police interrogation, the Supreme Court has observed that
events that "would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens." Haley v. Ohio, 332 U.S. 596, 599
juvenile subject of police interrogation cannot be compared to an adult
subject" J.D.B., 131 S.Ct. at 2403 (internal quotations omitted).  In
fact, leading professional organizations with expertise about children
agree that attorney consultation is needed during interrogation because
of children's developmental limitations. The American Psychological
Association, for example, "recommends that particularly vulnerable
suspect populations, including youth, persons with developmental disa-
bilities, and persons with mental illness, be provided special and
professional protection during interrogations such as being accompanied
and advised by an attorney or professional advocate."***** The American
Academy on Child and Adolescent Psychiatry similarly believes that youth
should have an attorney present during questioning by police and that
"when interviewing juvenile suspects, police should use terms and
concepts appropriate to the individual's developmental level. Any writ-
ten material should also be geared to the person's grade level and
cognitive capacity. In general, it is not sufficient to simply read or
recite information to a juvenile."******

Unfortunately, the presence of a parent or responsible adult does not
adequately ensure that a child makes a knowing, voluntary and intelli-
gent decision with respect to his or her Miranda rights.  Parents often
have conflicting interests and often misunderstand the proceedings.
Because parents may teach their children to respect and cooperate with
law enforcement, they may find it difficult to advise a child in custody
not to cooperate. Similarly, parents teach their children to tell the
truth; but often a refusal to speak - even when the child believes
himself to be "innocent"- is in the youth's legal interests. Parents
often find it hard to believe that their child could possibly do whatev-
er the child is accused of and therefore urge the child to speak, not
realizing that doing so may well undermine the child's legal interests.
Furthermore, when children are arrested, it often occurs in the context
of intra-familial disputes, discord, or violence. Resulting conflicts of
interest force parents to choose between, on the one hand, giving the
child in custody the best advice and, on the other, looking out for the
best interests of the other family member involved, which is often the
parent him/herself. All of these issues are compounded when, as is often
the case, the parent has been summoned to the police station in the
middle of the night, is feeling humiliated, resentful, or even angry
with the child, and is unable to must er the kind of dispassionate and
reflective thought process necessary to best advise the child. Finally,
often the parent or responsible adult him/herself doesn't understand the
meaning and nature of the rights the youth is being asked to waive.

Social science research confirms that the existing parental notification
process to protect the rights of youth is inadequate.  Research has
found that when parents are present during interrogation, they almost
always either do not help their children make a decision or actually
encourage their child their right. Having a child rely exclusively on
the an adult who may have conflicting interests and who likely does not
him/herself understand the meaning and nature of the right at stake and
the potential consequences of waiving that right undermines the purpose
of Family Court Act § 305 2 and Criminal Procedure Law §§ 140.20(6),
140.27(5) and 140.40(5).

Legal counsel would offer expert, objective advice to young people about
Constitutional right to remain and their ability to waive this and speak
to the police with the believe of such a conflict-free consultation can
children make any waiver of this bedrock right knowingly, voluntarily,
and intelligently, in keeping with requirements of the state and federal
constitutions. For this reason, youth under 18 years of age facing
custodial interrogation must be required to consult with legal counsel
to assist in their understanding of their rights and the consequences of
waiving those rights prior to waiving their rights under Miranda.

 
LEGISLATIVE HISTORY:

2019-20: S4980B - Referred to Children and Families

2021-22: S2800C - Referred to Finance

 
FISCAL IMPLICATIONS:

To be determined.

 
EFFECTIVE DATE:
This act shall take effect April 1, 2024.

S1099 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1099
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 10, 2023
                                ___________
 
 Introduced  by  Sens. BAILEY, BRISPORT, CLEARE, COMRIE, GOUNARDES, HOYL-
   MAN,  JACKSON,  KENNEDY,  KRUEGER,  MYRIE,  PARKER,  RIVERA,  SALAZAR,
   SEPULVEDA  --  read  twice and ordered printed, and when printed to be
   committed to the Committee on Children and Families
 
 AN ACT to amend the family court act and the criminal procedure law,  in
   relation  to  the custodial interrogation of juveniles by law enforce-
   ment
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Subdivision 3 of section 305.2 of the family court act, as
 added by chapter 920 of the laws of 1982, is amended to read as follows:
   3. If an officer takes such child into custody or if a child is deliv-
 ered to him OR HER under section 305.1, he  OR  SHE  shall  immediately,
 BEFORE  TRANSPORTING  THE  CHILD TO THE POLICE STATION HOUSE, notify the
 parent or other person legally responsible for the child's care,  or  if
 such  legally responsible person is unavailable the person with whom the
 child resides, that the child has been taken into custody.
   § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  added by chapter 920 of the laws of 1982, is amended to
 read as follows:
   (a) WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR  OTHER  PERSON
 LEGALLY  RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD TO
 HIS OR HER HOME, THE STATION HOUSE, OR ANOTHER LOCATION AGREED UPON WITH
 THE PARENT OR PERSON LEGALLY RESPONSIBLE, AND release the child  to  the
 custody  of  [his  parents  or  other person legally responsible for his
 care] SUCH PERSON upon the issuance in accordance with section 307.1  of
 a  family  court  appearance ticket to the child and the person to whose
 custody the child is released; or
   § 3. Paragraph (b) of subdivision 4 of section  305.2  of  the  family
 court  act,  as  amended  by section 63 of part WWW of chapter 59 of the
 laws of 2017, is amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03283-01-3

 S. 1099                             2
 
   (b) WHEN THE OFFICER DOES NOT REASONABLY BELIEVE THE PARENT  OR  OTHER
 PERSON  LEGALLY  RESPONSIBLE  FOR  THE  CHILD'S CARE WILL APPEAR FOR THE
 CHILD, forthwith and with all reasonable speed take the child  directly,
 and without his OR HER first being taken to the police station house, to
 the  family court located in the county in which the act occasioning the
 taking into custody allegedly was committed, or, when the  family  court
 is not in session, to the most accessible magistrate, if any, designated
 by the appellate division of the supreme court in the applicable depart-
 ment  to conduct a hearing under section 307.4 [of this part, unless the
 officer determines that it is necessary to question the child, in  which
 case  he or she may take the child to a facility designated by the chief
 administrator of the courts as a suitable place for the  questioning  of
 children  or,  upon  the  consent  of  a  parent or other person legally
 responsible for the care of the child,  to  the  child's  residence  and
 there question him or her for a reasonable period of time]; or
   §  4.  Paragraph  (c)  of subdivision 4 of section 305.2 of the family
 court act, as amended by section 3 of part G of chapter 58 of  the  laws
 of 2010, is amended to read as follows:
   (c)  WHEN THE OFFICER DOES NOT RELEASE THE CHILD PURSUANT TO PARAGRAPH
 (A) OF THIS SUBDIVISION, OR TAKE THE CHILD  TO  FAMILY  COURT  OR  TO  A
 MAGISTRATE PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION, take the child
 to  a place certified by the office of children and family services as a
 juvenile detention facility for the reception of children; or
   § 5. Subdivision 5 of section  305.2  of  the  family  court  act,  as
 amended  by  chapter  398  of  the  laws  of 1983, is amended to read as
 follows:
   5. If such child has allegedly committed a designated  felony  act  as
 defined  in  subdivision eight of section 301.2, and the family court in
 the county is in session, the officer shall  forthwith  take  the  child
 directly  to such family court[, unless the officer takes the child to a
 facility for questioning in accordance with paragraph (b) of subdivision
 four. If such child has not allegedly committed a designated felony  act
 and  such family court is in session, the officer shall either forthwith
 take the child directly to such family court, unless the  officer  takes
 the child to a facility for questioning in accordance with paragraph (b)
 of  subdivision  four  or release the child in accordance with paragraph
 (a) of subdivision four] OR, WHEN THE FAMILY COURT IS NOT IN SESSION, TO
 THE MOST ACCESSIBLE MAGISTRATE, IF  ANY,  DESIGNATED  BY  THE  APPELLATE
 DIVISION  OF THE SUPREME COURT IN THE APPLICABLE DEPARTMENT TO CONDUCT A
 HEARING UNDER SECTION 307.4.
   § 6. Subdivision 6 of section 305.2 of the family court act, as  added
 by chapter 920 of the laws of 1982, is amended to read as follows:
   6.  [In  all  other cases] IF SUCH CHILD HAS NOT ALLEGEDLY COMMITTED A
 DESIGNATED FELONY ACT, and in the absence of special circumstances,  the
 officer  shall  release  the  child  in accordance with paragraph (a) of
 subdivision four.
   § 7. Subdivisions 7 and 8 of section 305.2 of the  family  court  act,
 subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
 sion  8 as amended by chapter 299 of the laws of 2020, are amended and a
 new subdivision 10 is added to read as follows:
   7.  IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS  NECES-
 SARY  PRIOR TO TAKING ACTION AUTHORIZED BY SUBDIVISION FOUR OR FIVE, THE
 OFFICER MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE CHIEF  ADMIN-
 ISTRATOR  OF THE COURTS AS A SUITABLE PLACE FOR THE QUESTIONING OF CHIL-
 DREN OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY  RESPONSI-
 BLE  FOR  THE  CARE  OF  THE  CHILD, TO THE CHILD'S RESIDENCE AND THERE,
 S. 1099                             3
 
 SUBJECT TO THE REQUIREMENTS OF SUBDIVISION EIGHT, QUESTION  HIM  OR  HER
 FOR A REASONABLE PERIOD OF TIME.
   8.  A  child  shall  not be questioned pursuant to this section unless
 [he] OR UNTIL:
   (A) THE CHILD and a person required to be notified pursuant to  subdi-
 vision three if present, have been advised:
   [(a)] (I) of the child's right to remain silent;
   [(b)]  (II)  that  the  statements  made by the child may be used in a
 court of law;
   [(c)] (III) of the child's right to have an attorney present  at  such
 questioning; and
   [(d)]  (IV)  of the child's right to have an attorney provided for him
 OR HER without charge if he OR SHE is indigent; AND
   (B) THE CHILD HAS CONSULTED WITH LEGAL COUNSEL  IN  PERSON,  BY  TELE-
 PHONE, OR BY VIDEO CONFERENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   [8.]  9. In determining the suitability of questioning and determining
 the reasonable period of time for questioning such a child, the  child's
 age,  the  presence  or  absence  of his or her parents or other persons
 legally responsible for his or her care, notification pursuant to subdi-
 vision three and, where the child has been interrogated  at  a  facility
 designated  by the chief administrator of the courts as a suitable place
 for the questioning of  juveniles,  whether  the  interrogation  was  in
 compliance  with  the  video-recording  and  disclosure  requirements of
 subdivision five-a of this section  shall  be  included  among  relevant
 considerations.
   10. IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 344.2, A STATE-
 MENT  SHALL  BE  SUPPRESSED: WHEN THE CHILD HAS NOT CONSULTED WITH LEGAL
 COUNSEL AS REQUIRED BY PARAGRAPH (B) OF SUBDIVISION  EIGHT;  OR  WHEN  A
 PERSON  NOTIFIED PURSUANT TO SUBDIVISION THREE, IF PRESENT, HAS NOT BEEN
 ADVISED OF AND VOLUNTARILY WAIVED THE RIGHTS DELINEATED IN PARAGRAPH (A)
 OF SUBDIVISION EIGHT.
   § 8. Section 724 of the family court  act,  the  section  heading  and
 subdivisions  (b) and (c) as amended by chapter 843 of the laws of 1980,
 subdivision (a) as amended by chapter 920 of the  laws  of  1982,  para-
 graphs  (i) and (ii) as amended and paragraph (iv) of subdivision (b) as
 added by section 4 of part E of chapter 57 of the laws  of  2005,  para-
 graph  (iii)  of  subdivision  (b)  as amended by section 7 of part M of
 chapter 56 of the laws of 2017, and subdivision (d) as added by  chapter
 809 of the laws of 1963, is amended to read as follows:
   §  724.  Duties  of  police officer or peace officer after taking into
 custody or on delivery by private person. (a) If a peace  officer  or  a
 police  officer takes into custody or if a person is delivered to him OR
 HER under section seven hundred twenty-three, the  officer  shall  imme-
 diately, BEFORE TRANSPORTING THE CHILD TO ANY OTHER LOCATION, notify the
 parent  or  other person legally responsible for his OR HER care, or the
 person with whom he OR SHE is domiciled, that he OR SHE has  been  taken
 into custody.
   (b)  After  making every reasonable effort to give notice under [para-
 graph] SUBDIVISION (a) OF THIS SECTION, the officer shall
   (i) WHEN THE OFFICER REASONABLY BELIEVES SUCH PARENT OR  OTHER  PERSON
 LEGALLY  RESPONSIBLE FOR THE CHILD'S CARE WILL APPEAR, TAKE THE CHILD TO
 HIS OR HER HOME, THE POLICE STATION HOUSE, OR  ANOTHER  LOCATION  AGREED
 UPON  WITH  THE  PARENT  OR  PERSON LEGALLY RESPONSIBLE, AND release the
 youth to the custody of [his or her parent or other] SUCH person [legal-
 ly responsible for his or her care] upon the  written  promise,  without
 S. 1099                             4
 
 security,  of  the person to whose custody the youth is released that he
 or she will produce the youth before the lead agency designated pursuant
 to section seven hundred thirty-five of this article in that county at a
 time and place specified in writing; or
   (ii) WHEN THE OFFICER DOES NOT REASONABLY BELIEVE SUCH PARENT OR OTHER
 PERSON  LEGALLY  RESPONSIBLE  FOR  THE  CHILD'S CARE WILL APPEAR FOR THE
 CHILD, forthwith and with all reasonable speed take the youth  directly,
 and without first being taken to the police station house, to the desig-
 nated lead agency located in the county in which the act occasioning the
 taking  into  custody allegedly was done[, unless the officer determines
 that it is necessary to question the youth, in which case he or she  may
 take  the  youth  to a facility designated by the chief administrator of
 the courts as a suitable place for the questioning of youth or, upon the
 consent of a parent or other person legally responsible for the care  of
 the  youth, to the youth's residence and there question him or her for a
 reasonable period of time]; or
   (iii) take a youth in need of crisis intervention or respite  services
 to  a  runaway  and  homeless  youth  crisis  services  program or other
 approved respite or crisis program; or
   (iv) take the youth directly to the family court located in the county
 in which the act occasioning the taking into custody was allegedly done,
 provided that the officer affirms on the record that he or she attempted
 to exercise the options identified in paragraphs (i), (ii) and (iii)  of
 this  subdivision, was unable to exercise these options, and the reasons
 therefor.
   (c) In the absence of special circumstances, the officer shall release
 the child in accord with paragraph [(b)] (i) OF SUBDIVISION (B) OF  THIS
 SECTION.
   (d)  IF THE OFFICER DETERMINES THAT QUESTIONING OF THE CHILD IS NECES-
 SARY PRIOR TO TAKING  ACTION  AUTHORIZED  BY  SUBDIVISION  (B)  OF  THIS
 SECTION,  THE OFFICER MAY TAKE THE CHILD TO A FACILITY DESIGNATED BY THE
 CHIEF ADMINISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR THE  QUESTION-
 ING OF CHILDREN OR, UPON THE CONSENT OF A PARENT OR OTHER PERSON LEGALLY
 RESPONSIBLE  FOR  THE  CARE  OF  THE CHILD, TO THE CHILD'S RESIDENCE AND
 THERE, SUBJECT TO THE REQUIREMENTS OF SUBDIVISION (E) OF  THIS  SECTION,
 QUESTION HIM OR HER FOR A REASONABLE PERIOD OF TIME.
   (E) In determining THE SUITABILITY OF QUESTIONING AND DETERMINING what
 is  a  "reasonable  period of time" for questioning a child, the child's
 age [and], the presence or absence of his OR HER parents or other person
 legally responsible for his OR HER care  AND  NOTIFICATION  PURSUANT  TO
 SUBDIVISION  (A)  OF  THIS  SECTION shall be included among the relevant
 considerations.
   (F) NO STATEMENT MADE TO A PEACE OFFICER OR A POLICE OFFICER PRIOR  TO
 THE COMMENCEMENT OF A FACT-FINDING HEARING MAY BE ADMITTED INTO EVIDENCE
 AT A FACT-FINDING HEARING.
   § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
 amended  by section 20 of part WWW of chapter 59 of the laws of 2017, is
 amended to read as follows:
   6. (A) Upon arresting a juvenile  offender  or  a  person  sixteen  or
 [commencing  October  first,  two thousand nineteen,] seventeen years of
 age without a warrant, the  police  officer  shall  immediately,  BEFORE
 TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE, notify the parent or
 other  person legally responsible for his or her care or the person with
 whom he or she is domiciled, that such  JUVENILE  offender  or  [person]
 SIXTEEN OR SEVENTEEN YEAR OLD has been arrested, and the location of the
 facility where he or she [is being] WILL BE detained.
 S. 1099                             5
 
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD, the offi-
 cer must take him or her to a facility designated by the chief  adminis-
 trator of the courts as a suitable place for the questioning of children
 or, upon the consent of a parent or other person legally responsible for
 the care of the juvenile or [such person] SIXTEEN OR SEVENTEEN YEAR OLD,
 to  his or her residence and there, SUBJECT TO THE REQUIREMENTS OF PARA-
 GRAPH (C) OF THIS SUBDIVISION, question him  or  her  for  a  reasonable
 period of time.
   (C) A juvenile OFFENDER or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  he  or she and a person required to be notified pursuant to PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)] (A) of the juvenile offender's or  [such  person's]  SIXTEEN  OR
 SEVENTEEN YEAR OLD'S right to remain silent;
   [(b)]  (B)  that  the  statements  made by him or her may be used in a
 court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.];
   (II) THE JUVENILE OFFENDER  OR  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  HAS
 CONSULTED  WITH AN ATTORNEY IN PERSON, BY TELEPHONE, OR BY VIDEO CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 [person] SIXTEEN OR SEVENTEEN YEAR OLD, his or her age, the presence  or
 absence  of  his or her parents or other persons legally responsible for
 his or her care and notification  pursuant  to  PARAGRAPH  (A)  OF  this
 subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE  WITHIN  THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45 OF THIS
 CHAPTER, A STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD  HAS  NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION,  IF  PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY WAIVED THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
 as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
 is amended to read as follows:
   5. (A) Upon arresting a juvenile  offender  or  a  person  sixteen  or
 [commencing  October  first,  two thousand nineteen,] seventeen years of
 age without a warrant,  the  peace  officer  shall  immediately,  BEFORE
 TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE, notify the parent or
 other  person legally responsible for his or her care or the person with
 whom he or she is domiciled, that such  JUVENILE  offender  or  [person]
 SIXTEEN OR SEVENTEEN YEAR OLD has been arrested, and the location of the
 facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile  offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD, the offi-
 cer must take him or her to a facility designated by the chief  adminis-
 trator of the courts as a suitable place for the questioning of children
 or, upon the consent of a parent or other person legally responsible for
 the  care  of  a juvenile offender or [such person] SIXTEEN OR SEVENTEEN
 YEAR OLD, to his or her residence and there, SUBJECT TO THE REQUIREMENTS
 S. 1099                             6
 
 OF PARAGRAPH (C) OF THIS SUBDIVISION, question him or her for a  reason-
 able period of time.
   (C) A juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  the  juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR
 OLD and a person required to be notified pursuant to  PARAGRAPH  (A)  OF
 this subdivision, if present, have been advised:
   [(a)] (A) of his or her right to remain silent;
   [(b)]  (B)  that the statements made by the juvenile offender or [such
 person] SIXTEEN OR SEVENTEEN YEAR OLD may be used in a court of law;
   [(c)] (C) of his or her right to have  an  attorney  present  at  such
 questioning; and
   [(d)]  (D) of his or her right to have an attorney provided for him or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II) THE JUVENILE OFFENDER  OR  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  HAS
 CONSULTED  WITH  AN ATTORNEY IN PERSON, BY TELEPHONE OR BY VIDEO CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D) In determining the suitability of questioning and determining  the
 reasonable  period  of  time for questioning such a juvenile offender or
 [such person] SIXTEEN OR SEVENTEEN YEAR OLD his or her age, the presence
 or absence of his or her parents or other  persons  legally  responsible
 for  his  or her care and notification pursuant to PARAGRAPH (A) OF this
 subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE WITHIN THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45  OF  THIS
 CHAPTER,  A  STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD HAS NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION, IF PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY  WAIVED  THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
 as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
 is amended to read as follows:
   5.  (A)  If  a police officer takes an arrested juvenile offender or a
 person sixteen or [commencing October  first,  two  thousand  nineteen,]
 seventeen years of age into custody, the police officer shall immediate-
 ly, BEFORE TRANSPORTING THE CHILD TO THE POLICE STATION HOUSE notify the
 parent  or  other  person legally responsible for his or her care or the
 person with whom he or she is domiciled, that such JUVENILE offender  or
 [person]  SIXTEEN  OR  SEVENTEEN  YEAR  OLD  has  been arrested, and the
 location of the facility where he or she [is being] WILL BE detained.
   (B) If the officer determines that it is necessary to question a juve-
 nile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD the officer
 must take him or her to a facility designated by the chief administrator
 of the courts as a suitable place for the questioning  of  children  or,
 upon the consent of a parent or other person legally responsible for the
 care of the juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR
 OLD,  to  his or her residence and there, SUBJECT TO THE REQUIREMENTS OF
 PARAGRAPH (C) OF THIS SUBDIVISION, question him or her for a  reasonable
 period of time.
   (c) A juvenile offender or [such person] SIXTEEN OR SEVENTEEN YEAR OLD
 shall not be questioned pursuant to this section unless OR UNTIL:
   (I)  he  or she and a person required to be notified pursuant to PARA-
 GRAPH (A) OF this subdivision, if present, have been advised:
   [(a)] (A) of his or her right to remain silent;
 S. 1099                             7
 
   [(b)] (B) that the statements made by the juvenile offender  or  [such
 person] SIXTEEN OR SEVENTEEN YEAR OLD may be used in a court of law;
   [(c)]  (C)  of  his  or  her right to have an attorney present at such
 questioning; and
   [(d)] (D) of his or her right to have an attorney provided for him  or
 her without charge if he or she is unable to afford counsel[.]; AND
   (II)  THE  JUVENILE  OFFENDER  OR  SIXTEEN  OR  SEVENTEEN YEAR OLD HAS
 CONSULTED WITH AN ATTORNEY IN PERSON, BY TELEPHONE, OR BY VIDEO  CONFER-
 ENCE. THIS CONSULTATION MAY NOT BE WAIVED.
   (D)  In determining the suitability of questioning and determining the
 reasonable period of time for questioning such a  juvenile  offender  or
 [such  person]  SIXTEEN OR SEVENTEEN YEAR OLD, his or her age, the pres-
 ence or absence of his or her parents or other persons legally responsi-
 ble for his or her care and notification pursuant to  PARAGRAPH  (A)  OF
 this subdivision shall be included among relevant considerations.
   (E) IN ADDITION TO STATEMENTS THAT MUST BE SUPPRESSED AS INVOLUNTARILY
 MADE  WITHIN  THE DEFINITION IN SUBDIVISION TWO OF SECTION 60.45 OF THIS
 CHAPTER, A STATEMENT  SHALL  BE  SUPPRESSED:  WHEN  THE  CHILD  HAS  NOT
 CONSULTED WITH AN ATTORNEY AS REQUIRED BY PARAGRAPH (C) OF THIS SUBDIVI-
 SION; OR WHEN A PERSON NOTIFIED PURSUANT TO PARAGRAPH (A) OF THIS SUBDI-
 VISION,  IF  PRESENT, HAS NOT BEEN ADVISED OF AND VOLUNTARILY WAIVED THE
 RIGHTS DELINEATED IN PARAGRAPH (C) OF THIS SUBDIVISION.
   § 12. This act shall take effect April 1, 2024.

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The New York State Senate

senate Bill S1099

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Current Bill Status - In Senate Committee Finance Committee

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Votes

Feb 13, 2023 - Codes committee Vote

Codes Committee Vote: Feb 13, 2023

Jan 24, 2023 - Children and Families committee Vote

Children and Families Committee Vote: Jan 24, 2023

Co-Sponsors

S1099 (ACTIVE) - Details

S1099 (ACTIVE) - Summary

S1099 (ACTIVE) - Sponsor Memo

S1099 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S1099

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Sponsored By

Current Bill Status - In Senate Committee Finance Committee

Your Voice

Actions

Votes

Feb 13, 2023 - Codes committee Vote

Codes Committee Vote: Feb 13, 2023

Jan 24, 2023 - Children and Families committee Vote

Children and Families Committee Vote: Jan 24, 2023

Co-Sponsors

S1099 (ACTIVE) - Details

S1099 (ACTIVE) - Summary

S1099 (ACTIVE) - Sponsor Memo

S1099 (ACTIVE) - Bill Text download pdf

Comments