§ 722.21 Proceedings upon felony complaint; adolescent offender.

1. When an adolescent offender is arraigned before a youth part, the
provisions of this section shall apply. If the youth part is not in
session, the defendant shall be brought before the most accessible
magistrate designated by the appellate division of the supreme court to
act as a youth part for the purpose of making a determination whether
such adolescent offender shall be detained or, with the consent of the
district attorney, immediately removed to family court. If the defendant
is ordered to be detained, he or she shall be brought before the next
session of the youth part. If the defendant is not detained, he or she
shall be ordered to appear at the next session of the youth part, family
court or the local probation department.

2. If the defendant waives a hearing upon the felony complaint, the
court must order that the defendant be held for the action of the grand
jury with respect to the charge or charges contained in the felony
complaint.

3. If there be a hearing, then at the conclusion of the hearing, the
youth part court must dispose of the felony complaint as follows:

(a) If there is reasonable cause to believe that the defendant
committed a felony, the court must order that the defendant be held for
the action of a grand jury; or

(b) If there is not reasonable cause to believe that the defendant
committed a felony but there is reasonable cause to believe that the
defendant is a "juvenile delinquent" as defined in subdivision one of
section 301.2 of the family court act, the court must specify the act or
acts it found reasonable cause to believe the defendant did and direct
that the action be transferred to the family court in accordance with
the provisions of article seven hundred twenty-five of this title,
provided, however, notwithstanding any other provision of law, section
308.1 of the family court act shall apply to actions transferred
pursuant to this subdivision and such actions shall not be considered
removals subject to subdivision thirteen of such section 308.1; or

(c) If there is not reasonable cause to believe that the defendant
committed any criminal act, the court must dismiss the felony complaint
and discharge the defendant from custody if he is in custody, or if he
is at liberty on bail, it must exonerate the bail.

4. Notwithstanding the provisions of subdivisions two and three of
this section, where the defendant is charged with a felony, other than a
class A felony defined outside article two hundred twenty of the penal
law, a violent felony defined in section 70.02 of the penal law or a
felony listed in paragraph one or two of subdivision forty-two of
section 1.20 of this chapter, except as provided in paragraph (c) of
subdivision two of section 722.23 of this article, the court shall, upon
notice from the district attorney that he or she will not file a motion
to prevent removal pursuant to section 722.23 of this article, order
transfer of an action against an adolescent offender to the family court
pursuant to the provisions of article seven hundred twenty-five of this
title, provided, however, notwithstanding any other provision of law,
section 308.1 of the family court act shall apply to actions transferred
pursuant to this subdivision and such actions shall not be considered
removals subject to subdivision thirteen of such section 308.1.

* 5. Notwithstanding subdivisions two and three of this section, at
the request of the district attorney, the court shall order removal of
an action against an adolescent offender charged with an offense listed
in paragraph (a) of subdivision two of section 722.23 of this article,
to the family court pursuant to the provisions of article seven hundred
twenty-five of this title and upon consideration of the criteria
specified in subdivision two of section 722.22 of this article, it is
determined that to do so would be in the interests of justice. Where,
however, the felony complaint charges the adolescent offender with
murder in the second degree as defined in section 125.25 of the penal
law, rape in the first degree as defined in subdivision one of section
130.35 of the penal law, criminal sexual act in the first degree as
defined in subdivision one of section 130.50 of the penal law, or an
armed felony as defined in paragraph (a) of subdivision forty-one of
section 1.20 of this chapter, a determination that such action be
removed to the family court shall, in addition, be based upon a finding
of one or more of the following factors: (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; or (iii) possible
deficiencies in proof of the crime.

* NB Effective until September 1, 2024

* 5. Notwithstanding subdivisions two and three of this section, at
the request of the district attorney, the court shall order removal of
an action against an adolescent offender charged with an offense listed
in paragraph (a) of subdivision two of section 722.23 of this article,
to the family court pursuant to the provisions of article seven hundred
twenty-five of this title and upon consideration of the criteria
specified in subdivision two of section 722.22 of this article, it is
determined that to do so would be in the interests of justice. Where,
however, the felony complaint charges the adolescent offender with
murder in the second degree as defined in section 125.25 of the penal
law, rape in the first degree as defined in paragraph (a) of subdivision
one, paragraph (a) of subdivision two and paragraph (a) of subdivision
three of section 130.35 of the penal law, rape in the first degree as
formerly defined in subdivision one of section 130.35 of the penal law,
a crime formerly defined in subdivision one of section 130.50 of the
penal law, or an armed felony as defined in paragraph (a) of subdivision
forty-one of section 1.20 of this chapter, a determination that such
action be removed to the family court shall, in addition, be based upon
a finding of one or more of the following factors: (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; or (iii)
possible deficiencies in proof of the crime.

* NB Effective September 1, 2024

6. (a) If the court orders removal of the action to family court
pursuant to subdivision five of this section, it shall state on the
record the factor or factors upon which its determination is based, and
the court shall give its reasons for removal in detail and not in
conclusory terms.

(b) The district attorney shall state upon the record the reasons for
his consent to removal of the action to the family court where such
consent is required. The reasons shall be stated in detail and not in
conclusory terms.

(c) For the purpose of making a determination pursuant to subdivision
five the court may make such inquiry as it deems necessary. Any evidence
which is not legally privileged may be introduced. If the defendant
testifies, his testimony may not be introduced against him in any future
proceeding, except to impeach his testimony at such future proceeding as
inconsistent prior testimony.

(d) Except as provided by paragraph (e), this section shall not be
construed to limit the powers of the grand jury.

(e) Where an action against a defendant has been removed to the family
court pursuant to this section, there shall be no further proceedings
against the adolescent offender in any local or superior criminal court
including the youth part of the superior court for the offense or
offenses which were the subject of the removal order.