Legislation

Search OpenLegislation Statutes

This entry was published on 2024-02-02
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 308.1
Rules of court for preliminary procedure
Family Court Act (FCT) CHAPTER 686, ARTICLE 3, PART 1
§ 308.1. Rules of court for preliminary procedure. 1. Rules of court
shall authorize and determine the circumstances under which the
probation service may confer with any person seeking to have a juvenile
delinquency petition filed, the potential respondent and other
interested persons concerning the advisability of requesting that a
petition be filed.

2. Except as provided in subdivisions three and four of this section,
the probation service may, in accordance with rules of court, adjust
suitable cases before a petition is filed. The inability of the
respondent or his or her family to make restitution shall not be a
factor in a decision to adjust a case or in a recommendation to the
presentment agency pursuant to subdivision six of this section. Nothing
in this section shall prohibit the probation service or the court from
directing a respondent to obtain employment and to make restitution from
the earnings from such employment. Nothing in this section shall
prohibit the probation service or the court from directing an eligible
person to complete an education reform program in accordance with
section four hundred fifty-eight-l of the social services law.

3. The probation service shall not adjust a case in which the child
has allegedly committed a designated felony act unless it has received
the written approval of the court.

* 4. The probation service shall not adjust a case in which the child
has allegedly committed a delinquent act which would be a crime defined
in section 120.25, (reckless endangerment in the first degree),
subdivision one of section 125.15, (manslaughter in the second degree),
subdivision one of section 130.25, (rape in the third degree),
subdivision one of section 130.40, (criminal sexual act in the third
degree), subdivision one or two of section 130.65, (sexual abuse in the
first degree), section 135.65, (coercion in the first degree), section
140.20, (burglary in the third degree), section 150.10, (arson in the
third degree), section 160.05, (robbery in the third degree),
subdivision two, three or four of section 265.02, (criminal possession
of a weapon in the third degree), section 265.03, (criminal possession
of a weapon in the second degree), or section 265.04, (criminal
possession of a dangerous weapon in the first degree) of the penal law
where the child has previously had one or more adjustments of a case in
which such child allegedly committed an act which would be a crime
specified in this subdivision unless it has received written approval
from the court and the appropriate presentment agency.

* NB Effective until September 1, 2024

* 4. The probation service shall not adjust a case in which the child
has allegedly committed a delinquent act which would be a crime defined
in section 120.25, (reckless endangerment in the first degree),
subdivision one of section 125.15, (manslaughter in the second degree),
subdivisions one, two and three of section 130.25, (rape in the third
degree), subdivision one of former section 130.40, subdivision one or
two of section 130.65, (sexual abuse in the first degree), section
135.65, (coercion in the first degree), section 140.20, (burglary in the
third degree), section 150.10, (arson in the third degree), section
160.05, (robbery in the third degree), subdivision two, three or four of
section 265.02, (criminal possession of a weapon in the third degree),
section 265.03, (criminal possession of a weapon in the second degree),
or section 265.04, (criminal possession of a dangerous weapon in the
first degree) of the penal law where the child has previously had one or
more adjustments of a case in which such child allegedly committed an
act which would be a crime specified in this subdivision unless it has
received written approval from the court and the appropriate presentment
agency.

* NB Effective September 1, 2024

5. The fact that a child is detained prior to the filing of a petition
shall not preclude the probation service from adjusting a case; upon
adjusting such a case the probation service shall notify the detention
facility to release the child.

6. The probation service shall not transmit or otherwise communicate
to the presentment agency any statement made by the child to a probation
officer. However, the probation service may make a recommendation
regarding adjustment of the case to the presentment agency and provide
such information, including any report made by the arresting officer and
record of previous adjustments and arrests, as it shall deem relevant.

7. No statement made to the probation service prior to the filing of a
petition may be admitted into evidence at a fact-finding hearing or, if
the proceeding is transferred to a criminal court, at any time prior to
a conviction.

8. The probation service shall consider the views of the complainant
and the impact of the alleged act or acts of juvenile delinquency upon
the complainant and upon the community in determining whether adjustment
under this section would be suitable.

9. Efforts at adjustment pursuant to rules of court under this section
may not extend for a period of more than three months without leave of
the court, which may extend the period for an additional two months.

10. If a case is not adjusted by the probation service, such service
shall notify the appropriate presentment agency of that fact within
forty-eight hours or the next court day, whichever occurs later.

11. The probation service may not be authorized under this section to
compel any person to appear at any conference, produce any papers, or
visit any place.

12. The probation service shall certify to the division of criminal
justice services and to the appropriate police department or law
enforcement agency whenever it adjusts a case in which the potential
respondent's fingerprints were taken pursuant to section 306.1 in any
manner other than the filing of a petition for juvenile delinquency for
an act which, if committed by an adult, would constitute a felony,
provided, however, in the case of a child twelve years of age, such
certification shall be made only if the act would constitute a class A
or B felony.

13. The provisions of this section shall not apply where the petition
is an order of removal to the family court pursuant to article seven
hundred twenty-five of the criminal procedure law against a juvenile
offender as defined in subdivision eighteen of section 10.00 of the
penal law.

14. Notwithstanding subdivisions three, four and thirteen of this
section, the probation service may adjust a proceeding where the court
has referred a case to the probation service in accordance with section
320.6 of this article in conjunction with or subsequent to the issuance
of an order pursuant to subdivision one of section 345.1 of this article
where such order does not include a fact-finding for an act which would
constitute a juvenile offense, designated felony or offense listed in
subdivision four of this section. Where a proceeding has been referred
to the probation service in which an order issued pursuant to section
345.1 of this article consists solely of a violation as defined in
subdivision three of section 10.00 of the penal law committed by a
juvenile sixteen years of age or, commencing on October first, two
thousand nineteen, seventeen years of age, the probation service shall
adjust the matter unless good cause is shown and is documented in its
records.