Bill Text: NY S07581 | 2011-2012 | General Assembly | Introduced
Bill Title: Relates to actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases.
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2012-06-05 - REFERRED TO RULES [S07581 Detail]
Download: New_York-2011-S07581-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7581
I N S E N A T E
June 5, 2012
___________
Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
istration) -- read twice and ordered printed, and when printed to be
committed to the Committee on Rules
AN ACT to amend the family court act, in relation to adjudication,
dispositional and violation procedures in juvenile delinquency and
persons in need of supervision cases
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Subdivision 1 of section 315.3 of the family court act, as
2 amended by chapter 535 of the laws of 2011, is amended to read as
3 follows:
4 1. Except where the petition alleges that the respondent has committed
5 a designated felony act, the court may at any time prior to the entering
6 of a finding under section 352.1 and with the consent of the respondent
7 order that the proceeding be "adjourned in contemplation of dismissal".
8 An adjournment in contemplation of dismissal is an adjournment of the
9 proceeding, for a period not to exceed six months, with a view to ulti-
10 mate dismissal of the petition in furtherance of justice. Upon issuing
11 such an order, providing such terms and conditions as the court deems
12 appropriate, the court must release the respondent. The court may, as a
13 condition of an adjournment in contemplation of dismissal order, in
14 cases where the record indicates that the consumption of alcohol may
15 have been a contributing factor, require the respondent to attend and
16 complete an alcohol awareness program established pursuant to [of]
17 subdivision (a) of section [19.07] 19.25 of the mental hygiene law. The
18 court may, as a condition of an adjournment in contemplation of dismiss-
19 al order, in cases where the record indicates that the respondent is an
20 eligible person as defined in section four hundred fifty-eight-l of the
21 social services law and has allegedly committed an eligible offense as
22 defined in such section, direct the respondent to attend and complete an
23 education reform program established pursuant to section four hundred
24 fifty-eight-l of the social services law. [Upon ex parte motion by the
25 presentment agency, or upon the court's own motion, made at the time the
26 order is issued or at] AT any time during [its] THE duration OF AN ORDER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD15909-01-2
S. 7581 2
1 ISSUED PURSUANT TO THIS SECTION, the court may restore the matter to the
2 calendar IN ACCORDANCE WITH SUBDIVISION FOUR OF THIS SECTION. If the
3 proceeding is not restored, the petition is, at the expiration of the
4 order, deemed to have been dismissed by the court in furtherance of
5 justice.
6 S 2. Section 315.3 of the family court act is amended by adding a new
7 subdivision 4 to read as follows:
8 4. AN APPLICATION TO RESTORE THE MATTER TO THE CALENDAR IN ACCORDANCE
9 WITH SUBDIVISION ONE OF THIS SECTION SHALL BE IN THE FORM OF A VERIFIED
10 PETITION WHICH SHALL BE SERVED ON THE RESPONDENT, WHO SHALL HAVE AN
11 OPPORTUNITY TO BE HEARD WITH RESPECT THERETO. THE PETITION SHALL STATE
12 THE FACTUAL BASIS FOR THE RESTORATION, INCLUDING THE CONDITION OR CONDI-
13 TIONS ALLEGED TO HAVE BEEN VIOLATED AND THE TIME, PLACE AND MANNER IN
14 WHICH SUCH VIOLATION OCCURRED. THE RESPONDENT IS ENTITLED TO COUNSEL AT
15 ALL STAGES OF A PROCEEDING UNDER THIS SECTION, AND THE COURT SHALL
16 ADVISE THE RESPONDENT OF SUCH RIGHT AT THE INITIAL APPEARANCE ON ANY
17 PETITION FILED HEREUNDER. UPON REQUEST, THE COURT SHALL GRANT A REASON-
18 ABLE ADJOURNMENT TO THE RESPONDENT IN ORDER TO RESPOND TO THE PETITION
19 AND, IF THE FACTUAL ALLEGATIONS OF THE PETITION ARE CONTESTED, TO
20 PREPARE FOR A HEARING. IF THE COURT DETERMINES THAT THE RESPONDENT
21 SHOULD BE DETAINED IN ACCORDANCE WITH THE CRITERIA IN SUBDIVISION THREE
22 OF SECTION 320.5, THE COURT SHALL HEAR AND DETERMINE THE PETITION WITHIN
23 THREE DAYS; PROVIDED, HOWEVER, THAT FOR GOOD CAUSE SHOWN, THE COURT MAY
24 ADJOURN THE MATTER FOR NOT MORE THAN THREE ADDITIONAL DAYS. IF, AFTER
25 HEARING THE PETITION, THE COURT FINDS THAT THE PRESENTMENT AGENCY HAS
26 DEMONSTRATED BY RELEVANT AND MATERIAL EVIDENCE THAT ONE OR MORE CONDI-
27 TIONS OF THE ORDER HAVE BEEN VIOLATED, THE COURT SHALL STATE ON THE
28 RECORD THE REASONS FOR SUCH DETERMINATION, GRANT THE PETITION, RESTORE
29 THE MATTER TO THE CALENDAR AND SCHEDULE THE PROCEEDING FOR A FACT-FIND-
30 ING HEARING OR DISPOSITIONAL HEARING, AS APPLICABLE. UPON FILING THE
31 PETITION, THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
32 SHALL BE INTERRUPTED. SUCH INTERRUPTION SHALL CONTINUE UNTIL SUCH TIME
33 AS THE COURT DETERMINES THE PETITION. IF THE COURT DENIES THE PETITION,
34 THE PERIOD DURING WHICH THE PETITION WAS PENDING SHALL BE CREDITED TO
35 THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL.
36 S 3. Section 353.3 of the family court act is amended by adding a new
37 subdivision 11 to read as follows:
38 11. WHERE THE RESPONDENT IS PLACED PURSUANT TO SUBDIVISION TWO OR
39 THREE OF THIS SECTION AND IS ABSENT FROM THE FACILITY OR AUTHORIZED
40 AGENCY WITHOUT THE CONSENT OF THE DIRECTOR OF THE FACILITY OR AGENCY,
41 THE ABSENCE SHALL INTERRUPT THE CALCULATION OF TIME OF SUCH PLACEMENT
42 AND SUCH INTERRUPTION SHALL CONTINUE UNTIL THE CHILD'S RETURN TO THE
43 FACILITY OR AGENCY; PROVIDED, HOWEVER, THAT A TIMELY PERMANENCY HEARING
44 SHALL BE HELD FOR THE RESPONDENT, NOTWITHSTANDING SUCH INTERRUPTION. ANY
45 TIME SPENT IN DETENTION BETWEEN THE DATE OF SUCH ABSENCE WITHOUT LEAVE
46 AND THE RETURN OF THE CHILD TO THE FACILITY OR AGENCY SHALL BE CREDITED
47 AGAINST THE TIME OF PLACEMENT IF THE DETENTION WAS DUE TO A SURRENDER OR
48 ARREST DUE TO THE ABSENCE OR IF THE DETENTION WAS DUE TO AN ARREST THAT
49 DID NOT CULMINATE IN A PETITION, ADJUDICATION OR ADJUSTMENT.
50 S 4. Subdivisions 2, 4 and 5 of section 360.2 of the family court act,
51 as added by chapter 920 of the laws of 1982, are amended to read as
52 follows:
53 2. The petition must be verified and subscribed by the probation
54 service or the appropriate presentment agency. Such petition must stipu-
55 late the condition or conditions of the order violated and a reasonable
56 description of the time, place and manner in which the violation
S. 7581 3
1 occurred. Non-hearsay allegations OR ALLEGATIONS MADE UPON INFORMATION
2 AND BELIEF of the factual part of the petition or of any supporting
3 depositions must establish, if true, every violation charged.
4 4. If a petition is filed under subdivision one, the period of
5 probation as prescribed by section 353.2 OR CONDITIONAL DISCHARGE AS
6 PRESCRIBED BY SECTION 353.1 shall be interrupted as of the date of the
7 filing of the petition. Such interruption shall continue until a final
8 determination as to the petition has been made by the court pursuant to
9 a hearing held in accordance with section 360.3 or until such time as
10 the respondent reaches the maximum age of acceptance into a division for
11 youth facility.
12 5. If the court determines THAT there was no violation of probation OR
13 CONDITIONAL DISCHARGE by the respondent, the period of interruption
14 shall be credited to the period of probation OR CONDITIONAL DISCHARGE,
15 AS APPLICABLE.
16 S 5. Subdivision (h) of section 735 of the family court act, as added
17 by section 7 of part E of chapter 57 of the laws of 2005, is amended to
18 read as follows:
19 (h) No statement made to the designated lead agency or to any agency
20 or organization to which the potential respondent HAS BEEN REFERRED,
21 prior to the filing of the petition, or if the petition has been filed,
22 prior to the time the respondent has been notified that attempts at
23 diversion will not be made or have been terminated, or prior to the
24 commencement of a fact-finding hearing if attempts at diversion have not
25 terminated previously, may be admitted into evidence at a fact-finding
26 hearing or, if the proceeding is transferred to a criminal court, at any
27 time prior to a conviction.
28 S 6. The family court act is amended by adding a new section 743 to
29 read as follows:
30 S 743. ACCEPTANCE OF AN ADMISSION. (A) BEFORE ACCEPTING AN ADMISSION,
31 THE COURT SHALL ADVISE THE RESPONDENT OF HIS OR HER RIGHT TO A
32 FACT-FINDING HEARING. THE COURT SHALL ALSO ASCERTAIN THROUGH ALLOCUTION
33 OF THE RESPONDENT AND HIS OR HER PARENT OR PERSON LEGALLY RESPONSIBLE
34 FOR HIS OR HER CARE, IF PRESENT, THAT THE RESPONDENT:
35 (I) COMMITTED THE ACT OR ACTS TO WHICH AN ADMISSION IS BEING ENTERED;
36 (II) IS VOLUNTARILY WAIVING HIS OR HER RIGHT TO A FACT-FINDING HEAR-
37 ING; AND
38 (III) IS AWARE OF THE POSSIBLE SPECIFIC DISPOSITIONAL ORDERS.
39 THE PROVISIONS OF THIS SUBDIVISION SHALL NOT BE WAIVED.
40 (B) UPON ACCEPTANCE OF AN ADMISSION, THE COURT SHALL STATE THE REASONS
41 FOR ITS DETERMINATION AND SHALL ENTER A FACT-FINDING ORDER. THE COURT
42 SHALL SCHEDULE A DISPOSITIONAL HEARING IN ACCORDANCE WITH SUBDIVISION
43 (B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS PART.
44 S 7. Section 776 of the family court act is amended to read as
45 follows:
46 S 776. Failure to comply with terms and conditions of suspended judg-
47 ment. [If a] A respondent [is] brought before the court for failure to
48 comply with reasonable terms and conditions of [a] AN ORDER OF suspended
49 judgment [issued under this article and if,] SHALL BE SUBJECT TO SECTION
50 SEVEN HUNDRED SEVENTY-NINE-A OF THIS PART. IF, after hearing, the court
51 [is satisfied] DETERMINES by competent proof that the respondent WITHOUT
52 JUST CAUSE failed to comply with such terms and conditions, the court
53 may ADJOURN THE MATTER FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE
54 WITH SUBDIVISION (B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS
55 ARTICLE. THE COURT MAY revoke the [suspension] ORDER of SUSPENDED judg-
S. 7581 4
1 ment and proceed to make any order that might have been made at the time
2 judgment was suspended.
3 S 8. Section 779 of the family court act is amended to read as
4 follows:
5 S 779. [Failure] JURISDICTION AND SUPERVISION OF RESPONDENT PLACED ON
6 PROBATION; FAILURE to comply with terms of probation. [If a] (A) A
7 RESPONDENT WHO IS PLACED ON PROBATION IN ACCORDANCE WITH SECTION SEVEN
8 HUNDRED FIFTY-SEVEN OF THIS ARTICLE SHALL REMAIN UNDER THE LEGAL JURIS-
9 DICTION OF THE COURT PENDING EXPIRATION OR TERMINATION OF THE PERIOD OF
10 PROBATION.
11 (B) THE PROBATION SERVICE SHALL SUPERVISE THE RESPONDENT DURING THE
12 PERIOD OF SUCH LEGAL JURISDICTION.
13 (C) A respondent [is] brought before the court for failure to comply
14 with reasonable terms and conditions of an order of probation issued
15 under SECTION SEVEN HUNDRED FIFTY-SEVEN OF this article [and if,] SHALL
16 BE SUBJECT TO SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS ARTICLE. IF,
17 after hearing PURSUANT TO SUCH SECTION, the court [is satisfied] DETER-
18 MINES by competent proof that the respondent without just cause failed
19 to comply with such terms and conditions, the court may ADJOURN THE
20 MATTER FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE WITH SUBDIVISION
21 (B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. THE
22 COURT MAY revoke the order of probation and proceed to make any order
23 that might have been made at the time the order of probation was
24 entered.
25 S 9. Section 779-a of the family court act, as amended by chapter 309
26 of the laws of 1996, is amended to read as follows:
27 S 779-a. [Declaration of delinquency concerning juvenile delinquents
28 and persons in need of supervision.] PETITION AND HEARING ON VIOLATION
29 OF ORDER OF PROBATION OR SUSPENDED JUDGEMENT. (A) If, at any time during
30 the period of [a disposition of] probation, the [court] PETITIONER,
31 PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause
32 to believe the respondent has violated a condition of the disposition,
33 [it] THE PETITIONER, PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY
34 may [declare the respondent delinquent and] file a [written declaration
35 of delinquency. Upon such filing, the respondent shall be declared
36 delinquent of his disposition of probation and such disposition shall be
37 tolled. The] VIOLATION PETITION.
38 (B) THE PETITION MUST BE VERIFIED AND SUBSCRIBED BY THE PETITIONER,
39 PROBATION SERVICE OR THE APPROPRIATE PRESENTMENT AGENCY. THE PETITION
40 MUST SPECIFY THE CONDITION OR CONDITIONS OF THE ORDER VIOLATED AND A
41 REASONABLE DESCRIPTION OF THE DATE, TIME, PLACE AND MANNER IN WHICH THE
42 VIOLATION OCCURRED. NON-HEARSAY ALLEGATIONS OF THE FACTUAL PART OF THE
43 PETITION OR OF ANY SUPPORTING DEPOSITIONS MUST ESTABLISH, IF TRUE, EVERY
44 VIOLATION CHARGED.
45 (C) UPON THE FILING OF A VIOLATION PETITION, THE court [then must
46 promptly take reasonable and appropriate action] SHALL ISSUE A SUMMONS
47 OR WARRANT IN ACCORDANCE WITH SECTION SEVEN HUNDRED TWENTY-FIVE OF THIS
48 ARTICLE to cause the respondent to appear before [it for the purpose of
49 enabling] the court [to make a final determination with respect to the
50 alleged delinquency. The]. WHERE THE RESPONDENT IS ON PROBATION PURSUANT
51 TO SECTION SEVEN HUNDRED FIFTY-SEVEN OF THIS ARTICLE, THE time for
52 prompt court action shall not be construed against the probation service
53 when the respondent has absconded from probation supervision and the
54 respondent's whereabouts are unknown. The court must be notified prompt-
55 ly of the circumstances of any such probationers.
S. 7581 5
1 (D) IF A PETITION IS FILED UNDER SUBDIVISION (A) OF THIS SECTION, THE
2 PERIOD OF PROBATION OR SUSPENDED JUDGMENT PRESCRIBED BY SECTION SEVEN
3 HUNDRED FIFTY-FIVE OR SEVEN HUNDRED FIFTY-SEVEN OF THIS ARTICLE SHALL BE
4 INTERRUPTED AS OF THE DATE OF THE FILING OF THE PETITION. SUCH INTER-
5 RUPTION SHALL CONTINUE UNTIL A FINAL DETERMINATION OF THE PETITION OR
6 UNTIL SUCH TIME AS THE RESPONDENT REACHES THE MAXIMUM AGE OF ACCEPTANCE
7 INTO PLACEMENT WITH THE COMMISSIONER OF SOCIAL SERVICES. IF THE COURT
8 DISMISSES THE VIOLATION PETITION, THE PERIOD OF INTERRUPTION SHALL BE
9 CREDITED TO THE PERIOD OF PROBATION OR SUSPENDED JUDGMENT.
10 (E) HEARING ON VIOLATION. (I) THE COURT MAY NOT REVOKE AN ORDER OF
11 PROBATION OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT
12 PROOF THAT THE RESPONDENT HAS VIOLATED A CONDITION OF SUCH ORDER WITHOUT
13 JUST CAUSE AND THAT THE RESPONDENT HAS HAD AN OPPORTUNITY TO BE HEARD.
14 THE RESPONDENT IS ENTITLED TO A HEARING PROMPTLY AFTER A VIOLATION PETI-
15 TION HAS BEEN FILED. THE RESPONDENT IS ENTITLED TO COUNSEL AT ALL STAGES
16 OF THE PROCEEDING AND MAY NOT WAIVE REPRESENTATION BY COUNSEL EXCEPT AS
17 PROVIDED IN SECTION TWO HUNDRED FORTY-NINE-A OF THIS ACT.
18 (II) AT THE TIME OF THE RESPONDENT'S FIRST APPEARANCE FOLLOWING THE
19 FILING OF A VIOLATION PETITION, THE COURT MUST:
20 (A) ADVISE THE RESPONDENT OF THE CONTENTS OF THE PETITION AND FURNISH
21 A COPY TO THE RESPONDENT;
22 (B) ADVISE THE RESPONDENT THAT HE OR SHE IS ENTITLED TO COUNSEL AT ALL
23 STAGES OF A PROCEEDING UNDER THIS SECTION AND APPOINT AN ATTORNEY PURSU-
24 ANT TO SECTION TWO HUNDRED FORTY-NINE OF THIS ACT IF INDEPENDENT LEGAL
25 REPRESENTATION IS NOT AVAILABLE TO THE RESPONDENT. IF PRACTICABLE, THE
26 COURT SHALL APPOINT THE SAME ATTORNEY WHO REPRESENTED THE RESPONDENT IN
27 THE ORIGINAL PROCEEDINGS UNDER THIS ARTICLE;
28 (C) DETERMINE WHETHER THE RESPONDENT SHOULD BE RELEASED OR DETAINED
29 PURSUANT TO SECTION SEVEN HUNDRED TWENTY OF THIS ARTICLE; AND
30 (D) ASK THE RESPONDENT WHETHER HE OR SHE WISHES TO MAKE ANY STATEMENT
31 WITH RESPECT TO THE VIOLATION. IF THE RESPONDENT MAKES A STATEMENT, THE
32 COURT MAY ACCEPT IT AND BASE ITS DECISION UPON THE STATEMENT. THE
33 PROVISIONS OF SECTION SEVEN HUNDRED FORTY-THREE OF THIS ARTICLE SHALL
34 APPLY IN DETERMINING WHETHER A STATEMENT SHOULD BE ACCEPTED. IF THE
35 COURT DOES NOT ACCEPT THE STATEMENT OR IF THE RESPONDENT DOES NOT MAKE A
36 STATEMENT, THE COURT SHALL CONDUCT A HEARING.
37 (III) UPON REQUEST, THE COURT SHALL GRANT A REASONABLE ADJOURNMENT TO
38 THE RESPONDENT TO PREPARE FOR THE HEARING.
39 (IV) AT THE HEARING, THE COURT MAY RECEIVE ANY RELEVANT, COMPETENT AND
40 MATERIAL EVIDENCE. THE RESPONDENT MAY CROSS-EXAMINE WITNESSES AND PRES-
41 ENT EVIDENCE ON HIS OR HER OWN BEHALF. THE COURT'S DETERMINATION MUST BE
42 BASED UPON COMPETENT EVIDENCE.
43 (V) AT THE CONCLUSION OF THE HEARING, THE COURT MAY ADJOURN THE MATTER
44 FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE WITH SUBDIVISION (B) OR
45 (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. THE COURT MAY
46 REVOKE, CONTINUE OR MODIFY THE ORDER OF PROBATION OR SUSPENDED JUDGMENT.
47 IF THE COURT REVOKES THE ORDER, IT SHALL ORDER A DIFFERENT DISPOSITION
48 PURSUANT TO SUBDIVISION ONE OF SECTION SEVEN HUNDRED FIFTY-FOUR OF THIS
49 ARTICLE AND SHALL MAKE FINDINGS IN ACCORDANCE WITH SUBDIVISION TWO OF
50 SUCH SECTION. IF THE COURT CONTINUES THE ORDER OF PROBATION OR
51 SUSPENDED JUDGMENT, IT SHALL DISMISS THE PETITION OF VIOLATION.
52 S 10. This act shall take effect on the ninetieth day after it shall
53 have become a law and shall apply to orders of adjournment in contem-
54 plation of dismissal issued and petitions for violations of probation,
55 conditional discharge and suspended judgment filed on or after such
56 effective date.
