Bill Text: NY S01099 | 2023-2024 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

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 32-0)

Status: (Introduced) 2024-05-22 - REPORTED AND COMMITTED TO FINANCE [S01099 Detail]

Download: New_York-2023-S01099-Introduced.html

---

                STATE OF NEW YORK
        ________________________________________________________________________

                                          1099

                               2023-2024 Regular Sessions

                    IN SENATE

                                    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:

     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
    20    § 3. Paragraph (b) of subdivision 4 of section  305.2  of  the  family
    21  court  act,  as  amended  by section 63 of part WWW of chapter 59 of the
    22  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

     1    (b) when the officer does not reasonably believe the parent  or  other
     2  person  legally  responsible  for  the  child's care will appear for the
     3  child, forthwith and with all reasonable speed take the child  directly,
     4  and without his or her first being taken to the police station house, to
     5  the  family court located in the county in which the act occasioning the
     6  taking into custody allegedly was committed, or, when the  family  court
     7  is not in session, to the most accessible magistrate, if any, designated
     8  by the appellate division of the supreme court in the applicable depart-
     9  ment  to conduct a hearing under section 307.4 [of this part, unless the
    10  officer determines that it is necessary to question the child, in  which
    11  case  he or she may take the child to a facility designated by the chief
    12  administrator of the courts as a suitable place for the  questioning  of
    13  children  or,  upon  the  consent  of  a  parent or other person legally
    14  responsible for the care of the child,  to  the  child's  residence  and
    15  there question him or her for a reasonable period of time]; or
    16    §  4.  Paragraph  (c)  of subdivision 4 of section 305.2 of the family
    17  court act, as amended by section 3 of part G of chapter 58 of  the  laws
    18  of 2010, is amended to read as follows:
    19    (c)  when the officer does not release the child pursuant to paragraph
    20  (a) of this subdivision, or take the child  to  family  court  or  to  a
    21  magistrate pursuant to paragraph (b) of this subdivision, take the child
    22  to  a place certified by the office of children and family services as a
    23  juvenile detention facility for the reception of children; or
    24    § 5. Subdivision 5 of section  305.2  of  the  family  court  act,  as
    25  amended  by  chapter  398  of  the  laws  of 1983, is amended to read as
    26  follows:
    27    5. If such child has allegedly committed a designated  felony  act  as
    28  defined  in  subdivision eight of section 301.2, and the family court in
    29  the county is in session, the officer shall  forthwith  take  the  child
    30  directly  to such family court[, unless the officer takes the child to a
    31  facility for questioning in accordance with paragraph (b) of subdivision
    32  four. If such child has not allegedly committed a designated felony  act
    33  and  such family court is in session, the officer shall either forthwith
    34  take the child directly to such family court, unless the  officer  takes
    35  the child to a facility for questioning in accordance with paragraph (b)
    36  of  subdivision  four  or release the child in accordance with paragraph
    37  (a) of subdivision four] or, when the family court is not in session, to
    38  the most accessible magistrate, if  any,  designated  by  the  appellate
    39  division  of the supreme court in the applicable department to conduct a
    40  hearing under section 307.4.
    41    § 6. Subdivision 6 of section 305.2 of the family court act, as  added
    42  by chapter 920 of the laws of 1982, is amended to read as follows:
    43    6.  [In  all  other cases] If such child has not allegedly committed a
    44  designated felony act, and in the absence of special circumstances,  the
    45  officer  shall  release  the  child  in accordance with paragraph (a) of
    46  subdivision four.
    47    § 7. Subdivisions 7 and 8 of section 305.2 of the  family  court  act,
    48  subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
    49  sion  8 as amended by chapter 299 of the laws of 2020, are amended and a
    50  new subdivision 10 is added to read as follows:
    51    7.  If the officer determines that questioning of the child is  neces-
    52  sary  prior to taking action authorized by subdivision four or five, the
    53  officer may take the child to a facility designated by the chief  admin-
    54  istrator  of the courts as a suitable place for the questioning of chil-
    55  dren or, upon the consent of a parent or other person legally  responsi-
    56  ble  for  the  care  of  the  child, to the child's residence and there,
        S. 1099                             3

     1  subject to the requirements of subdivision eight, question  him  or  her
     2  for a reasonable period of time.
     3    8.  A  child  shall  not be questioned pursuant to this section unless
     4  [he] or until:
     5    (a) the child and a person required to be notified pursuant to  subdi-
     6  vision three if present, have been advised:
     7    [(a)] (i) of the child's right to remain silent;
     8    [(b)]  (ii)  that  the  statements  made by the child may be used in a
     9  court of law;
    10    [(c)] (iii) of the child's right to have an attorney present  at  such
    11  questioning; and
    12    [(d)]  (iv)  of the child's right to have an attorney provided for him
    13  or her without charge if he or she is indigent; and
    14    (b) the child has consulted with legal counsel  in  person,  by  tele-
    15  phone, or by video conference. This consultation may not be waived.
    16    [8.]  9. In determining the suitability of questioning and determining
    17  the reasonable period of time for questioning such a child, the  child's
    18  age,  the  presence  or  absence  of his or her parents or other persons
    19  legally responsible for his or her care, notification pursuant to subdi-
    20  vision three and, where the child has been interrogated  at  a  facility
    21  designated  by the chief administrator of the courts as a suitable place
    22  for the questioning of  juveniles,  whether  the  interrogation  was  in
    23  compliance  with  the  video-recording  and  disclosure  requirements of
    24  subdivision five-a of this section  shall  be  included  among  relevant
    25  considerations.
    26    10. In addition to statements that must be suppressed as involuntarily
    27  made within the definition in subdivision two of section 344.2, a state-
    28  ment  shall  be  suppressed: when the child has not consulted with legal
    29  counsel as required by paragraph (b) of subdivision  eight;  or  when  a
    30  person  notified pursuant to subdivision three, if present, has not been
    31  advised of and voluntarily waived the rights delineated in paragraph (a)
    32  of subdivision eight.
    33    § 8. Section 724 of the family court  act,  the  section  heading  and
    34  subdivisions  (b) and (c) as amended by chapter 843 of the laws of 1980,
    35  subdivision (a) as amended by chapter 920 of the  laws  of  1982,  para-
    36  graphs  (i) and (ii) as amended and paragraph (iv) of subdivision (b) as
    37  added by section 4 of part E of chapter 57 of the laws  of  2005,  para-
    38  graph  (iii)  of  subdivision  (b)  as amended by section 7 of part M of
    39  chapter 56 of the laws of 2017, and subdivision (d) as added by  chapter
    40  809 of the laws of 1963, is amended to read as follows:
    41    §  724.  Duties  of  police officer or peace officer after taking into
    42  custody or on delivery by private person. (a) If a peace  officer  or  a
    43  police  officer takes into custody or if a person is delivered to him or
    44  her under section seven hundred twenty-three, the  officer  shall  imme-
    45  diately, before transporting the child to any other location, notify the
    46  parent  or  other person legally responsible for his or her care, or the
    47  person with whom he or she is domiciled, that he or she has  been  taken
    48  into custody.
    49    (b)  After  making every reasonable effort to give notice under [para-
    50  graph] subdivision (a) of this section, the officer shall
    51    (i) when the officer reasonably believes such parent or  other  person
    52  legally  responsible for the child's care will appear, take the child to
    53  his or her home, the police station house, or  another  location  agreed
    54  upon  with  the  parent  or  person legally responsible, and release the
    55  youth to the custody of [his or her parent or other] such person [legal-
    56  ly responsible for his or her care] upon the  written  promise,  without
        S. 1099                             4

     1  security,  of  the person to whose custody the youth is released that he
     2  or she will produce the youth before the lead agency designated pursuant
     3  to section seven hundred thirty-five of this article in that county at a
     4  time and place specified in writing; or
     5    (ii) when the officer does not reasonably believe such parent or other
     6  person  legally  responsible  for  the  child's care will appear for the
     7  child, forthwith and with all reasonable speed take the youth  directly,
     8  and without first being taken to the police station house, to the desig-
     9  nated lead agency located in the county in which the act occasioning the
    10  taking  into  custody allegedly was done[, unless the officer determines
    11  that it is necessary to question the youth, in which case he or she  may
    12  take  the  youth  to a facility designated by the chief administrator of
    13  the courts as a suitable place for the questioning of youth or, upon the
    14  consent of a parent or other person legally responsible for the care  of
    15  the  youth, to the youth's residence and there question him or her for a
    16  reasonable period of time]; or
    17    (iii) take a youth in need of crisis intervention or respite  services
    18  to  a  runaway  and  homeless  youth  crisis  services  program or other
    19  approved respite or crisis program; or
    20    (iv) take the youth directly to the family court located in the county
    21  in which the act occasioning the taking into custody was allegedly done,
    22  provided that the officer affirms on the record that he or she attempted
    23  to exercise the options identified in paragraphs (i), (ii) and (iii)  of
    24  this  subdivision, was unable to exercise these options, and the reasons
    25  therefor.
    26    (c) In the absence of special circumstances, the officer shall release
    27  the child in accord with paragraph [(b)] (i) of subdivision (b) of  this
    28  section.
    29    (d)  If the officer determines that questioning of the child is neces-
    30  sary prior to taking  action  authorized  by  subdivision  (b)  of  this
    31  section,  the officer may take the child to a facility designated by the
    32  chief administrator of the courts as a suitable place for the  question-
    33  ing of children or, upon the consent of a parent or other person legally
    34  responsible  for  the  care  of  the child, to the child's residence and
    35  there, subject to the requirements of subdivision (e) of  this  section,
    36  question him or her for a reasonable period of time.
    37    (e) In determining the suitability of questioning and determining what
    38  is  a  "reasonable  period of time" for questioning a child, the child's
    39  age [and], the presence or absence of his or her parents or other person
    40  legally responsible for his or her care  and  notification  pursuant  to
    41  subdivision  (a)  of  this  section shall be included among the relevant
    42  considerations.
    43    (f) No statement made to a peace officer or a police officer prior  to
    44  the commencement of a fact-finding hearing may be admitted into evidence
    45  at a fact-finding hearing.
    46    § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
    47  amended  by section 20 of part WWW of chapter 59 of the laws of 2017, is
    48  amended to read as follows:
    49    6. (a) Upon arresting a juvenile  offender  or  a  person  sixteen  or
    50  [commencing  October  first,  two thousand nineteen,] seventeen years of
    51  age without a warrant, the  police  officer  shall  immediately,  before
    52  transporting the child to the police station house, notify the parent or
    53  other  person legally responsible for his or her care or the person with
    54  whom he or she is domiciled, that such  juvenile  offender  or  [person]
    55  sixteen or seventeen year old has been arrested, and the location of the
    56  facility where he or she [is being] will be detained.
        S. 1099                             5

     1    (b) If the officer determines that it is necessary to question a juve-
     2  nile  offender or [such person] sixteen or seventeen year old, the offi-
     3  cer must take him or her to a facility designated by the chief  adminis-
     4  trator of the courts as a suitable place for the questioning of children
     5  or, upon the consent of a parent or other person legally responsible for
     6  the care of the juvenile or [such person] sixteen or seventeen year old,
     7  to  his or her residence and there, subject to the requirements of para-
     8  graph (c) of this subdivision, question him  or  her  for  a  reasonable
     9  period of time.
    10    (c) A juvenile offender or [such person] sixteen or seventeen year old
    11  shall not be questioned pursuant to this section unless or until:
    12    (i)  he  or she and a person required to be notified pursuant to para-
    13  graph (a) of this subdivision, if present, have been advised:
    14    [(a)] (A) of the juvenile offender's or  [such  person's]  sixteen  or
    15  seventeen year old's right to remain silent;
    16    [(b)]  (B)  that  the  statements  made by him or her may be used in a
    17  court of law;
    18    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    19  questioning; and
    20    [(d)]  (D) of his or her right to have an attorney provided for him or
    21  her without charge if he or she is unable to afford counsel[.];
    22    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
    23  consulted  with an attorney in person, by telephone, or by video confer-
    24  ence. This consultation may not be waived.
    25    (d) In determining the suitability of questioning and determining  the
    26  reasonable  period  of  time for questioning such a juvenile offender or
    27  [person] sixteen or seventeen year old, his or her age, the presence  or
    28  absence  of  his or her parents or other persons legally responsible for
    29  his or her care and notification  pursuant  to  paragraph  (a)  of  this
    30  subdivision shall be included among relevant considerations.
    31    (e) In addition to statements that must be suppressed as involuntarily
    32  made  within  the definition in subdivision two of section 60.45 of this
    33  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    34  consulted with an attorney as required by paragraph (c) of this subdivi-
    35  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    36  vision,  if  present, has not been advised of and voluntarily waived the
    37  rights delineated in paragraph (c) of this subdivision.
    38    § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
    39  as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
    40  is amended to read as follows:
    41    5. (a) Upon arresting a juvenile  offender  or  a  person  sixteen  or
    42  [commencing  October  first,  two thousand nineteen,] seventeen years of
    43  age without a warrant,  the  peace  officer  shall  immediately,  before
    44  transporting the child to the police station house, notify the parent or
    45  other  person legally responsible for his or her care or the person with
    46  whom he or she is domiciled, that such  juvenile  offender  or  [person]
    47  sixteen or seventeen year old has been arrested, and the location of the
    48  facility where he or she [is being] will be detained.
    49    (b) If the officer determines that it is necessary to question a juve-
    50  nile  offender or [such person] sixteen or seventeen year old, the offi-
    51  cer must take him or her to a facility designated by the chief  adminis-
    52  trator of the courts as a suitable place for the questioning of children
    53  or, upon the consent of a parent or other person legally responsible for
    54  the  care  of  a juvenile offender or [such person] sixteen or seventeen
    55  year old, to his or her residence and there, subject to the requirements
        S. 1099                             6

     1  of paragraph (c) of this subdivision, question him or her for a  reason-
     2  able period of time.
     3    (c) A juvenile offender or [such person] sixteen or seventeen year old
     4  shall not be questioned pursuant to this section unless or until:
     5    (i)  the  juvenile offender or [such person] sixteen or seventeen year
     6  old and a person required to be notified pursuant to  paragraph  (a)  of
     7  this subdivision, if present, have been advised:
     8    [(a)] (A) of his or her right to remain silent;
     9    [(b)]  (B)  that the statements made by the juvenile offender or [such
    10  person] sixteen or seventeen year old may be used in a court of law;
    11    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    12  questioning; and
    13    [(d)]  (D) of his or her right to have an attorney provided for him or
    14  her without charge if he or she is unable to afford counsel[.]; and
    15    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
    16  consulted  with  an attorney in person, by telephone or by video confer-
    17  ence. This consultation may not be waived.
    18    (d) In determining the suitability of questioning and determining  the
    19  reasonable  period  of  time for questioning such a juvenile offender or
    20  [such person] sixteen or seventeen year old his or her age, the presence
    21  or absence of his or her parents or other  persons  legally  responsible
    22  for  his  or her care and notification pursuant to paragraph (a) of this
    23  subdivision shall be included among relevant considerations.
    24    (e) In addition to statements that must be suppressed as involuntarily
    25  made within the definition in subdivision two of section 60.45  of  this
    26  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    27  consulted with an attorney as required by paragraph (c) of this subdivi-
    28  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    29  vision, if present, has not been advised of and voluntarily  waived  the
    30  rights delineated in paragraph (c) of this subdivision.
    31    §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
    32  as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
    33  is amended to read as follows:
    34    5.  (a)  If  a police officer takes an arrested juvenile offender or a
    35  person sixteen or [commencing October  first,  two  thousand  nineteen,]
    36  seventeen years of age into custody, the police officer shall immediate-
    37  ly, before transporting the child to the police station house notify the
    38  parent  or  other  person legally responsible for his or her care or the
    39  person with whom he or she is domiciled, that such juvenile offender  or
    40  [person]  sixteen  or  seventeen  year  old  has  been arrested, and the
    41  location of the facility where he or she [is being] will be detained.
    42    (b) If the officer determines that it is necessary to question a juve-
    43  nile offender or [such person] sixteen or seventeen year old the officer
    44  must take him or her to a facility designated by the chief administrator
    45  of the courts as a suitable place for the questioning  of  children  or,
    46  upon the consent of a parent or other person legally responsible for the
    47  care of the juvenile offender or [such person] sixteen or seventeen year
    48  old,  to  his or her residence and there, subject to the requirements of
    49  paragraph (c) of this subdivision, question him or her for a  reasonable
    50  period of time.
    51    (c) A juvenile offender or [such person] sixteen or seventeen year old
    52  shall not be questioned pursuant to this section unless or until:
    53    (i)  he  or she and a person required to be notified pursuant to para-
    54  graph (a) of this subdivision, if present, have been advised:
    55    [(a)] (A) of his or her right to remain silent;
        S. 1099                             7

     1    [(b)] (B) that the statements made by the juvenile offender  or  [such
     2  person] sixteen or seventeen year old may be used in a court of law;
     3    [(c)]  (C)  of  his  or  her right to have an attorney present at such
     4  questioning; and
     5    [(d)] (D) of his or her right to have an attorney provided for him  or
     6  her without charge if he or she is unable to afford counsel[.]; and
     7    (ii)  the  juvenile  offender  or  sixteen  or  seventeen year old has
     8  consulted with an attorney in person, by telephone, or by video  confer-
     9  ence. This consultation may not be waived.
    10    (d)  In determining the suitability of questioning and determining the
    11  reasonable period of time for questioning such a  juvenile  offender  or
    12  [such  person]  sixteen or seventeen year old, his or her age, the pres-
    13  ence or absence of his or her parents or other persons legally responsi-
    14  ble for his or her care and notification pursuant to  paragraph  (a)  of
    15  this subdivision shall be included among relevant considerations.
    16    (e) In addition to statements that must be suppressed as involuntarily
    17  made  within  the definition in subdivision two of section 60.45 of this
    18  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    19  consulted with an attorney as required by paragraph (c) of this subdivi-
    20  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    21  vision,  if  present, has not been advised of and voluntarily waived the
    22  rights delineated in paragraph (c) of this subdivision.
    23    § 12. This act shall take effect April 1, 2024.