Bill Text: NY A08923 | 2023-2024 | General Assembly | Amended

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Bill Title: 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.

Spectrum: Partisan Bill (Democrat 58-0)

Status: (Introduced) 2024-05-30 - ordered to third reading rules cal.259 [A08923 Detail]

Download: New_York-2023-A08923-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                         8923--A

                   IN ASSEMBLY

                                    January 26, 2024
                                       ___________

        Introduced  by  M.  of  A. HEVESI, CLARK, RAGA, SIMON, KELLES, DINOWITZ,
          L. ROSENTHAL,  BURGOS,  EPSTEIN,  AUBRY,  ARDILA,  ZACCARO,   CARROLL,
          LAVINE,  REYES,  GLICK,  BURDICK, ZINERMAN, GONZALEZ-ROJAS, LEVENBERG,
          WEPRIN, MAMDANI, ANDERSON, JACKSON, CRUZ, HYNDMAN,  FORREST,  SEPTIMO,
          SEAWRIGHT, BRONSON, CUNNINGHAM, MEEKS, ALVAREZ, PRETLOW, PAULIN, DICK-
          ENS, DE LOS SANTOS, BORES, SIMONE, VANEL, GALLAGHER, FAHY, OTIS, WALK-
          ER,  GIBBS,  O'DONNELL, SOLAGES, MITAYNES -- read once and referred to
          the Committee on Children and Families -- committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee

        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:

     1    Section  1. Subdivision 3 of section 305.2 of the family court act, as
     2  added by chapter 920 of the laws of 1982, is amended to read as follows:
     3    3. If an officer takes such child into custody or if a child is deliv-
     4  ered to him or her under section 305.1, he  or  she  shall  immediately,
     5  before  transporting  the  child to the police station house, notify the
     6  parent or other person legally responsible for the child's care,  or  if
     7  such  legally responsible person is unavailable the person with whom the
     8  child resides, that the child has been taken into custody.
     9    § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
    10  court  act,  as  added by chapter 920 of the laws of 1982, is amended to
    11  read as follows:
    12    (a) when the officer reasonably believes such parent or  other  person
    13  legally  responsible for the child's care will appear, take the child to
    14  his or her home, the station house, or another location agreed upon with
    15  the parent or person legally responsible, and release the child  to  the
    16  custody  of  [his  parents  or  other person legally responsible for his
    17  care] such person upon the issuance in accordance with section 307.1  of
    18  a  family  court  appearance ticket to the child and the person to whose
    19  custody the child is released; or

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03283-02-4
        A. 8923--A                          2

     1    § 3. Paragraph (b) of subdivision 4 of section  305.2  of  the  family
     2  court  act,  as  amended  by section 63 of part WWW of chapter 59 of the
     3  laws of 2017, is amended to read as follows:
     4    (b)  when  the officer does not reasonably believe the parent or other
     5  person legally responsible for the child's  care  will  appear  for  the
     6  child,  forthwith and with all reasonable speed take the child directly,
     7  and without his or her first being taken to the police station house, to
     8  the family court located in the county in which the act occasioning  the
     9  taking  into  custody allegedly was committed, or, when the family court
    10  is not in session, to the most accessible magistrate, if any, designated
    11  by the appellate division of the supreme court in the applicable depart-
    12  ment to conduct a hearing under section 307.4 [of this part, unless  the
    13  officer  determines that it is necessary to question the child, in which
    14  case he or she may take the child to a facility designated by the  chief
    15  administrator  of  the courts as a suitable place for the questioning of
    16  children or, upon the consent  of  a  parent  or  other  person  legally
    17  responsible  for  the  care  of  the child, to the child's residence and
    18  there question him or her for a reasonable period of time]; or
    19    § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
    20  court  act,  as amended by section 3 of part G of chapter 58 of the laws
    21  of 2010, is amended to read as follows:
    22    (c) when the officer does not release the child pursuant to  paragraph
    23  (a)  of  this  subdivision,  or  take  the child to family court or to a
    24  magistrate pursuant to paragraph (b) of this subdivision, take the child
    25  to a place certified by the office of children and family services as  a
    26  juvenile detention facility for the reception of children; or
    27    §  5.  Subdivision  5  of  section  305.2  of the family court act, as
    28  amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
    29  follows:
    30    5.  If  such  child has allegedly committed a designated felony act as
    31  defined in subdivision eight of section 301.2, and the family  court  in
    32  the  county  is  in  session, the officer shall forthwith take the child
    33  directly to such family court[, unless the officer takes the child to  a
    34  facility for questioning in accordance with paragraph (b) of subdivision
    35  four.  If such child has not allegedly committed a designated felony act
    36  and such family court is in session, the officer shall either  forthwith
    37  take  the  child directly to such family court, unless the officer takes
    38  the child to a facility for questioning in accordance with paragraph (b)
    39  of subdivision four or release the child in  accordance  with  paragraph
    40  (a) of subdivision four] or, when the family court is not in session, to
    41  the  most  accessible  magistrate,  if  any, designated by the appellate
    42  division of the supreme court in the applicable department to conduct  a
    43  hearing under section 307.4.
    44    §  6. Subdivision 6 of section 305.2 of the family court act, as added
    45  by chapter 920 of the laws of 1982, is amended to read as follows:
    46    6. [In all other cases] If such child has not  allegedly  committed  a
    47  designated  felony act, and in the absence of special circumstances, the
    48  officer shall release the child in  accordance  with  paragraph  (a)  of
    49  subdivision four.
    50    §  7.  Subdivisions  7 and 8 of section 305.2 of the family court act,
    51  subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
    52  sion 8 as amended by chapter 299 of the laws of 2020, are amended and  a
    53  new subdivision 10 is added to read as follows:
    54    7.   If the officer determines that questioning of the child is neces-
    55  sary prior to taking action authorized by subdivision four or five,  the
    56  officer  may take the child to a facility designated by the chief admin-
        A. 8923--A                          3

     1  istrator of the courts as a suitable place for the questioning of  chil-
     2  dren  or, upon the consent of a parent or other person legally responsi-
     3  ble for the care of the child,  to  the  child's  residence  and  there,
     4  subject  to  the  requirements of subdivision eight, question him or her
     5  for a reasonable period of time.
     6    8. A child shall not be questioned pursuant  to  this  section  unless
     7  [he] or until:
     8    (a)  the child and a person required to be notified pursuant to subdi-
     9  vision three if present, have been advised:
    10    [(a)] (i) of the child's right to remain silent;
    11    [(b)] (ii) that the statements made by the child  may  be  used  in  a
    12  court of law;
    13    [(c)]  (iii)  of the child's right to have an attorney present at such
    14  questioning; and
    15    [(d)] (iv) of the child's right to have an attorney provided  for  him
    16  or her without charge if he or she is indigent; and
    17    (b)  the  child  has  consulted with legal counsel in person, by tele-
    18  phone, or by video conference. This consultation may not be waived.
    19    [8.] 9. In determining the suitability of questioning and  determining
    20  the  reasonable period of time for questioning such a child, the child's
    21  age, the presence or absence of his or  her  parents  or  other  persons
    22  legally responsible for his or her care, notification pursuant to subdi-
    23  vision  three  and,  where the child has been interrogated at a facility
    24  designated by the chief administrator of the courts as a suitable  place
    25  for  the  questioning  of  juveniles,  whether  the interrogation was in
    26  compliance with  the  video-recording  and  disclosure  requirements  of
    27  subdivision  five-a  of  this  section  shall be included among relevant
    28  considerations.
    29    10. In addition to statements that must be suppressed as involuntarily
    30  made within the definition in subdivision two of section 344.2, a state-
    31  ment shall be suppressed: when the child has not  consulted  with  legal
    32  counsel  as  required  by  paragraph (b) of subdivision eight; or when a
    33  person notified pursuant to subdivision three, if present, has not  been
    34  advised of and voluntarily waived the rights delineated in paragraph (a)
    35  of subdivision eight.
    36    §  8.  Section  724  of  the family court act, the section heading and
    37  subdivisions (b) and (c) as amended by chapter 843 of the laws of  1980,
    38  subdivision  (a)  as  amended  by chapter 920 of the laws of 1982, para-
    39  graphs (i) and (ii) as amended and paragraph (iv) of subdivision (b)  as
    40  added  by  section  4 of part E of chapter 57 of the laws of 2005, para-
    41  graph (iii) of subdivision (b) as amended by section  7  of  part  M  of
    42  chapter  56 of the laws of 2017, and subdivision (d) as added by chapter
    43  809 of the laws of 1963, is amended to read as follows:
    44    § 724. Duties of police officer or peace  officer  after  taking  into
    45  custody  or  on  delivery by private person. (a) If a peace officer or a
    46  police officer takes into custody or if a person is delivered to him  or
    47  her  under  section  seven hundred twenty-three, the officer shall imme-
    48  diately, before transporting the child to any other location, notify the
    49  parent or other person legally responsible for his or her care,  or  the
    50  person  with  whom he or she is domiciled, that he or she has been taken
    51  into custody.
    52    (b) After making every reasonable effort to give notice  under  [para-
    53  graph] subdivision (a) of this section, the officer shall
    54    (i)  when  the officer reasonably believes such parent or other person
    55  legally responsible for the child's care will appear, take the child  to
    56  his  or  her  home, the police station house, or another location agreed
        A. 8923--A                          4

     1  upon with the parent or person  legally  responsible,  and  release  the
     2  youth to the custody of [his or her parent or other] such person [legal-
     3  ly  responsible  for  his or her care] upon the written promise, without
     4  security,  of  the person to whose custody the youth is released that he
     5  or she will produce the youth before the lead agency designated pursuant
     6  to section seven hundred thirty-five of this article in that county at a
     7  time and place specified in writing; or
     8    (ii) when the officer does not reasonably believe such parent or other
     9  person legally responsible for the child's  care  will  appear  for  the
    10  child,  forthwith and with all reasonable speed take the youth directly,
    11  and without first being taken to the police station house, to the desig-
    12  nated lead agency located in the county in which the act occasioning the
    13  taking into custody allegedly was done[, unless the  officer  determines
    14  that  it is necessary to question the youth, in which case he or she may
    15  take the youth to a facility designated by the  chief  administrator  of
    16  the courts as a suitable place for the questioning of youth or, upon the
    17  consent  of a parent or other person legally responsible for the care of
    18  the youth, to the youth's residence and there question him or her for  a
    19  reasonable period of time]; or
    20    (iii)  take a youth in need of crisis intervention or respite services
    21  to a runaway  and  homeless  youth  crisis  services  program  or  other
    22  approved respite or crisis program; or
    23    (iv) take the youth directly to the family court located in the county
    24  in which the act occasioning the taking into custody was allegedly done,
    25  provided that the officer affirms on the record that he or she attempted
    26  to  exercise the options identified in paragraphs (i), (ii) and (iii) of
    27  this subdivision, was unable to exercise these options, and the  reasons
    28  therefor.
    29    (c) In the absence of special circumstances, the officer shall release
    30  the  child in accord with paragraph [(b)] (i) of subdivision (b) of this
    31  section.
    32    (d) If the officer determines that questioning of the child is  neces-
    33  sary  prior  to  taking  action  authorized  by  subdivision (b) of this
    34  section, the officer may take the child to a facility designated by  the
    35  chief  administrator of the courts as a suitable place for the question-
    36  ing of children or, upon the consent of a parent or other person legally
    37  responsible for the care of the child,  to  the  child's  residence  and
    38  there,  subject  to the requirements of subdivision (e) of this section,
    39  question him or her for a reasonable period of time.
    40    (e) In determining the suitability of questioning and determining what
    41  is a "reasonable period of time" for questioning a  child,  the  child's
    42  age [and], the presence or absence of his or her parents or other person
    43  legally  responsible  for  his  or her care and notification pursuant to
    44  subdivision (a) of this section shall be  included  among  the  relevant
    45  considerations.
    46    (f)  No statement made to a peace officer or a police officer prior to
    47  the commencement of a fact-finding hearing may be admitted into evidence
    48  at a fact-finding hearing.
    49    § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
    50  amended by section 20 of part WWW of chapter 59 of the laws of 2017,  is
    51  amended to read as follows:
    52    6.  (a)  Upon  arresting  a  juvenile  offender or a person sixteen or
    53  [commencing October first, two thousand nineteen,]  seventeen  years  of
    54  age  without  a  warrant,  the  police officer shall immediately, before
    55  transporting the child to the police station house, notify the parent or
    56  other person legally responsible for his or her care or the person  with
        A. 8923--A                          5

     1  whom  he  or  she  is domiciled, that such juvenile offender or [person]
     2  sixteen or seventeen year old has been arrested, and the location of the
     3  facility where he or she [is being] will be detained.
     4    (b) If the officer determines that it is necessary to question a juve-
     5  nile  offender or [such person] sixteen or seventeen year old, the offi-
     6  cer must take him or her to a facility designated by the chief  adminis-
     7  trator of the courts as a suitable place for the questioning of children
     8  or, upon the consent of a parent or other person legally responsible for
     9  the care of the juvenile or [such person] sixteen or seventeen year old,
    10  to  his or her residence and there, subject to the requirements of para-
    11  graph (c) of this subdivision, question him  or  her  for  a  reasonable
    12  period of time.
    13    (c) A juvenile offender or [such person] sixteen or seventeen year old
    14  shall not be questioned pursuant to this section unless or until:
    15    (i)  he  or she and a person required to be notified pursuant to para-
    16  graph (a) of this subdivision, if present, have been advised:
    17    [(a)] (A) of the juvenile offender's or  [such  person's]  sixteen  or
    18  seventeen year old's right to remain silent;
    19    [(b)]  (B)  that  the  statements  made by him or her may be used in a
    20  court of law;
    21    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    22  questioning; and
    23    [(d)]  (D) of his or her right to have an attorney provided for him or
    24  her without charge if he or she is unable to afford counsel[.];
    25    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
    26  consulted  with an attorney in person, by telephone, or by video confer-
    27  ence. This consultation may not be waived.
    28    (d) In determining the suitability of questioning and determining  the
    29  reasonable  period  of  time for questioning such a juvenile offender or
    30  [person] sixteen or seventeen year old, his or her age, the presence  or
    31  absence  of  his or her parents or other persons legally responsible for
    32  his or her care and notification  pursuant  to  paragraph  (a)  of  this
    33  subdivision shall be included among relevant considerations.
    34    (e) In addition to statements that must be suppressed as involuntarily
    35  made  within  the definition in subdivision two of section 60.45 of this
    36  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    37  consulted with an attorney as required by paragraph (c) of this subdivi-
    38  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    39  vision,  if  present, has not been advised of and voluntarily waived the
    40  rights delineated in paragraph (c) of this subdivision.
    41    § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
    42  as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
    43  is amended to read as follows:
    44    5. (a) Upon arresting a juvenile  offender  or  a  person  sixteen  or
    45  [commencing  October  first,  two thousand nineteen,] seventeen years of
    46  age without a warrant,  the  peace  officer  shall  immediately,  before
    47  transporting the child to the police station house, notify the parent or
    48  other  person legally responsible for his or her care or the person with
    49  whom he or she is domiciled, that such  juvenile  offender  or  [person]
    50  sixteen or seventeen year old has been arrested, and the location of the
    51  facility where he or she [is being] will be detained.
    52    (b) If the officer determines that it is necessary to question a juve-
    53  nile  offender or [such person] sixteen or seventeen year old, the offi-
    54  cer must take him or her to a facility designated by the chief  adminis-
    55  trator of the courts as a suitable place for the questioning of children
    56  or, upon the consent of a parent or other person legally responsible for
        A. 8923--A                          6

     1  the  care  of  a juvenile offender or [such person] sixteen or seventeen
     2  year old, to his or her residence and there, subject to the requirements
     3  of paragraph (c) of this subdivision, question him or her for a  reason-
     4  able period of time.
     5    (c) A juvenile offender or [such person] sixteen or seventeen year old
     6  shall not be questioned pursuant to this section unless or until:
     7    (i)  the  juvenile offender or [such person] sixteen or seventeen year
     8  old and a person required to be notified pursuant to  paragraph  (a)  of
     9  this subdivision, if present, have been advised:
    10    [(a)] (A) of his or her right to remain silent;
    11    [(b)]  (B)  that the statements made by the juvenile offender or [such
    12  person] sixteen or seventeen year old may be used in a court of law;
    13    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    14  questioning; and
    15    [(d)]  (D) of his or her right to have an attorney provided for him or
    16  her without charge if he or she is unable to afford counsel[.]; and
    17    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
    18  consulted  with  an attorney in person, by telephone or by video confer-
    19  ence. This consultation may not be waived.
    20    (d) In determining the suitability of questioning and determining  the
    21  reasonable  period  of  time for questioning such a juvenile offender or
    22  [such person] sixteen or seventeen year old his or her age, the presence
    23  or absence of his or her parents or other  persons  legally  responsible
    24  for  his  or her care and notification pursuant to paragraph (a) of this
    25  subdivision shall be included among relevant considerations.
    26    (e) In addition to statements that must be suppressed as involuntarily
    27  made within the definition in subdivision two of section 60.45  of  this
    28  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    29  consulted with an attorney as required by paragraph (c) of this subdivi-
    30  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    31  vision, if present, has not been advised of and voluntarily  waived  the
    32  rights delineated in paragraph (c) of this subdivision.
    33    §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
    34  as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
    35  is amended to read as follows:
    36    5.  (a)  If  a police officer takes an arrested juvenile offender or a
    37  person sixteen or [commencing October  first,  two  thousand  nineteen,]
    38  seventeen years of age into custody, the police officer shall immediate-
    39  ly, before transporting the child to the police station house notify the
    40  parent  or  other  person legally responsible for his or her care or the
    41  person with whom he or she is domiciled, that such juvenile offender  or
    42  [person]  sixteen  or  seventeen  year  old  has  been arrested, and the
    43  location of the facility where he or she [is being] will be detained.
    44    (b) If the officer determines that it is necessary to question a juve-
    45  nile offender or [such person] sixteen or seventeen year old the officer
    46  must take him or her to a facility designated by the chief administrator
    47  of the courts as a suitable place for the questioning  of  children  or,
    48  upon the consent of a parent or other person legally responsible for the
    49  care of the juvenile offender or [such person] sixteen or seventeen year
    50  old,  to  his or her residence and there, subject to the requirements of
    51  paragraph (c) of this subdivision, question him or her for a  reasonable
    52  period of time.
    53    (c) A juvenile offender or [such person] sixteen or seventeen year old
    54  shall not be questioned pursuant to this section unless or until:
    55    (i)  he  or she and a person required to be notified pursuant to para-
    56  graph (a) of this subdivision, if present, have been advised:
        A. 8923--A                          7

     1    [(a)] (A) of his or her right to remain silent;
     2    [(b)]  (B)  that the statements made by the juvenile offender or [such
     3  person] sixteen or seventeen year old may be used in a court of law;
     4    [(c)] (C) of his or her right to have  an  attorney  present  at  such
     5  questioning; and
     6    [(d)]  (D) of his or her right to have an attorney provided for him or
     7  her without charge if he or she is unable to afford counsel[.]; and
     8    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
     9  consulted  with an attorney in person, by telephone, or by video confer-
    10  ence. This consultation may not be waived.
    11    (d) In determining the suitability of questioning and determining  the
    12  reasonable  period  of  time for questioning such a juvenile offender or
    13  [such person] sixteen or seventeen year old, his or her age,  the  pres-
    14  ence or absence of his or her parents or other persons legally responsi-
    15  ble  for  his  or her care and notification pursuant to paragraph (a) of
    16  this subdivision shall be included among relevant considerations.
    17    (e) In addition to statements that must be suppressed as involuntarily
    18  made within the definition in subdivision two of section 60.45  of  this
    19  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    20  consulted with an attorney as required by paragraph (c) of this subdivi-
    21  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    22  vision, if present, has not been advised of and voluntarily  waived  the
    23  rights delineated in paragraph (c) of this subdivision.
    24    § 12. This act shall take effect April 1, 2025.