³ 722.23 Removal of adolescent offenders to family court.

1. (a) Following the arraignment of a defendant charged with a crime
committed when he or she was sixteen, or commencing October first, two
thousand nineteen, seventeen years of age, other than any class A felony
except for those defined in 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, or an offense set forth in the vehicle and traffic law,
the court shall order the removal of the action to the family court in
accordance with the applicable provisions of article seven hundred
twenty-five of this title unless, within thirty calendar days of such
arraignment, the district attorney makes a motion to prevent removal of
the action pursuant to this subdivision. If the defendant fails to
report to the probation department as directed, the thirty day time
period shall be tolled until such time as he or she reports to the
probation department.

(b) A motion to prevent removal of an action in youth part shall be
made in writing and upon prompt notice to the defendant. The motion
shall contain allegations of sworn fact based upon personal knowledge of
the affiant, and shall indicate if the district attorney is requesting a
hearing. The motion shall be noticed to be heard promptly.

(c) The defendant shall be given an opportunity to reply. The
defendant shall be granted any reasonable request for a delay. Either
party may request a hearing on the facts alleged in the motion to
prevent removal of the action. The hearing shall be held expeditiously.

(d) The court shall deny the motion to prevent removal of the action
in youth part unless the court makes a determination upon such motion by
the district attorney that extraordinary circumstances exist that should
prevent the transfer of the action to family court.

(e) The court shall make a determination in writing or on the record
within five days of the conclusion of the hearing or submission by the
defense, whichever is later. Such determination shall include findings
of fact and to the extent practicable conclusions of 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.

(g) Notwithstanding any other provision of law, section 308.1 of the
family court act shall apply to all actions transferred pursuant to this
section provided, however, such cases shall not be considered removals
subject to subdivision thirteen of such section 308.1.

(h) Nothing in this subdivision shall preclude, and a court may order,
the removal of an action to family court where all parties agree or
pursuant to this chapter.

2. (a) Upon the arraignment of a defendant charged with a crime
committed when he or she was sixteen or, commencing October first, two
thousand nineteen, seventeen years of age on a class A felony, other
than those defined in article 220 of the penal law, or a violent felony
defined in section 70.02 of the penal law, the court shall schedule an
appearance no later than six calendar days from such arraignment for the
purpose of reviewing the accusatory instrument pursuant to this
subdivision. The court shall notify the district attorney and defendant
regarding the purpose of such appearance.

(b) Upon such appearance, the court shall review the accusatory
instrument and any other relevant facts for the purpose of making a
determination pursuant to paragraph (c) of this subdivision. Both
parties may be heard and submit information relevant to the
determination.

(c) The court shall order the action to proceed in accordance with
subdivision one of this section 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
weapon as defined in the penal law in furtherance of such offense; or

(iii) the defendant unlawfully engaged in vaginal sexual contact, oral
sexual contact, anal sexual contact, 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
determination shall be made in writing or on the record and shall
include findings of fact and to the extent practicable conclusions of
law.

(e) 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. Notwithstanding the provisions of any other law, if at any time one
or more charges in the accusatory instrument are reduced, such that the
elements of the highest remaining charge would be removable pursuant to
subdivisions one or two of this section, then the court, sua sponte or
in response to a motion pursuant to subdivisions one or two of this
section by the defendant, shall promptly notify the parties and direct
that the matter proceed in accordance with subdivision one of this
section, provided, however, that in such instance, the district attorney
must file any motion to prevent removal within thirty days of effecting
or receiving notice of such reduction.

4. A defendant may waive review of the accusatory instrument by the
court and the opportunity for removal in accordance with this section,
provided that such waiver is made by the defendant knowingly,
voluntarily and in open court, in the presence of and with the approval
of his or her counsel and the court. An earlier waiver shall not
constitute a waiver of review and the opportunity for removal under this
section.