S T A T E O F N E W Y O R K
________________________________________________________________________
8505
2009-2010 Regular Sessions
I N A S S E M B L Y
May 26, 2009
___________
Introduced by M. of A. SCARBOROUGH, COOK -- Multi-Sponsored by -- M. of
A. BRADLEY, COLTON, JOHN, TITONE, TOWNS -- (at request of the Office
of Court Administration) -- read once and referred to the Committee on
Children and Families
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:
Section 1. Subdivision 1 of section 315.3 of the family court act, as
amended by chapter 237 of the laws of 1991, is amended to read as
follows:
1. Except where the petition alleges that the respondent has committed
a designated felony act, the court may at any time prior to the entering
of a finding under section 352.1 and with the consent of the respondent
order that the proceeding be "adjourned in contemplation of dismissal".
An adjournment in contemplation of dismissal is an adjournment of the
proceeding, for a period not to exceed six months, with a view to ulti-
mate dismissal of the petition in furtherance of justice. Upon issuing
such an order, providing such terms and conditions as the court deems
appropriate, the court must release the respondent. The court may, as a
condition of an adjournment in contemplation of dismissal order, in
cases where the record indicates that the consumption of alcohol may
have been a contributing factor, require the respondent to attend and
complete an alcohol awareness program established pursuant to [paragraph
six-a of subdivision (a) of] section [19.07] 19.25 of the mental hygiene
law. [Upon ex parte motion by the presentment agency, or upon the
court's own motion, made at the time the order is issued or at] AT any
time during [its] THE duration OF AN ORDER ISSUED PURSUANT TO THIS
SECTION, the court may restore the matter to the calendar IN ACCORDANCE
WITH SUBDIVISION FOUR OF THIS SECTION. If the proceeding is not
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10373-01-9
A. 8505 2
restored, the petition is, at the expiration of the order, deemed to
have been dismissed by the court in furtherance of justice.
S 2. Section 315.3 if the family court act is amended by adding a new
subdivision 4 to read as follows:
4. AN APPLICATION TO RESTORE THE MATTER TO THE CALENDAR IN ACCORDANCE
WITH SUBDIVISION ONE OF THIS SECTION SHALL BE IN THE FORM OF A VERIFIED
PETITION WHICH SHALL BE SERVED ON THE RESPONDENT, WHO SHALL HAVE AN
OPPORTUNITY TO BE HEARD WITH RESPECT THERETO. THE PETITION SHALL STATE
THE FACTUAL BASIS FOR THE RESTORATION, INCLUDING THE CONDITION OR CONDI-
TIONS ALLEGED TO HAVE BEEN VIOLATED AND THE TIME, PLACE AND MANNER IN
WHICH SUCH VIOLATION OCCURRED. THE RESPONDENT IS ENTITLED TO COUNSEL AT
ALL STAGES OF A PROCEEDING UNDER THIS SECTION, AND THE COURT SHALL
ADVISE THE RESPONDENT OF SUCH RIGHT AT THE INITIAL APPEARANCE ON ANY
PETITION FILED HEREUNDER. UPON REQUEST, THE COURT SHALL GRANT A REASON-
ABLE ADJOURNMENT TO THE RESPONDENT IN ORDER TO RESPOND TO THE PETITION
AND, IF THE FACTUAL ALLEGATIONS OF THE PETITION ARE CONTESTED, TO
PREPARE FOR A HEARING. IF THE COURT DETERMINES THAT THE RESPONDENT
SHOULD BE DETAINED IN ACCORDANCE WITH THE CRITERIA IN SUBDIVISION THREE
OF SECTION 320.5, THE COURT SHALL HEAR AND DETERMINE THE PETITION WITHIN
THREE DAYS; PROVIDED, HOWEVER, THAT FOR GOOD CAUSE SHOWN, THE COURT MAY
ADJOURN THE MATTER FOR NOT MORE THAN THREE ADDITIONAL DAYS. IF, AFTER
HEARING THE PETITION, THE COURT FINDS THAT THE PRESENTMENT AGENCY HAS
DEMONSTRATED BY RELEVANT AND MATERIAL EVIDENCE THAT ONE OR MORE CONDI-
TIONS OF THE ORDER HAVE BEEN VIOLATED, THE COURT SHALL STATE ON THE
RECORD THE REASONS FOR SUCH DETERMINATION, GRANT THE PETITION, RESTORE
THE MATTER TO THE CALENDAR AND SCHEDULE THE PROCEEDING FOR A FACT-FIND-
ING HEARING OR DISPOSITIONAL HEARING, AS APPLICABLE. UPON FILING THE
PETITION, THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL
SHALL BE INTERRUPTED. SUCH INTERRUPTION SHALL CONTINUE UNTIL SUCH TIME
AS THE COURT DETERMINES THE PETITION. IF THE COURT DENIES THE PETITION,
THE PERIOD DURING WHICH THE PETITION WAS PENDING SHALL BE CREDITED TO
THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL.
S 3. Section 353.3 of the family court act is amended by adding a new
subdivision 11 to read as follows:
11. WHERE THE RESPONDENT IS PLACED PURSUANT TO SUBDIVISION TWO OR
THREE OF THIS SECTION AND IS ABSENT FROM THE FACILITY OR AUTHORIZED
AGENCY WITHOUT THE CONSENT OF THE DIRECTOR OF THE FACILITY OR AGENCY,
THE ABSENCE SHALL INTERRUPT THE CALCULATION OF TIME OF SUCH PLACEMENT
AND SUCH INTERRUPTION SHALL CONTINUE UNTIL THE CHILD'S RETURN TO THE
FACILITY OR AGENCY; PROVIDED, HOWEVER, THAT A TIMELY PERMANENCY HEARING
SHALL BE HELD FOR THE RESPONDENT, NOTWITHSTANDING SUCH INTERRUPTION. ANY
TIME SPENT IN DETENTION BETWEEN THE DATE OF SUCH ABSENCE WITHOUT LEAVE
AND THE RETURN OF THE CHILD TO THE FACILITY OR AGENCY SHALL BE CREDITED
AGAINST THE TIME OF PLACEMENT IF THE DETENTION WAS DUE TO A SURRENDER OR
ARREST DUE TO THE ABSENCE, OR IF THE DETENTION WAS DUE TO AN ARREST THAT
DID NOT CULMINATE IN A PETITION, ADJUDICATION OR ADJUSTMENT.
S 4. Subdivisions 2, 4 and 5 of section 360.2 of the family court act,
as added by chapter 920 of the laws of 1982, are amended to read as
follows:
2. The petition must be verified and subscribed by the probation
service or the appropriate presentment agency. Such petition must stipu-
late the condition or conditions of the order violated and a reasonable
description of the time, place and manner in which the violation
occurred. Non-hearsay allegations OR ALLEGATIONS MADE UPON INFORMATION
AND BELIEF of the factual part of the petition or of any supporting
depositions must establish, if true, every violation charged.
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4. If a petition is filed under subdivision one, the period of
probation as prescribed by section 353.2 OR CONDITIONAL DISCHARGE AS
PRESCRIBED BY SECTION 353.1 shall be interrupted as of the date of the
filing of the petition. Such interruption shall continue until a final
determination as to the petition has been made by the court pursuant to
a hearing held in accordance with section 360.3 or until such time as
the respondent reaches the maximum age of acceptance into a division for
youth facility.
5. If the court determines THAT there was no violation of probation OR
CONDITIONAL DISCHARGE by the respondent, the period of interruption
shall be credited to the period of probation OR CONDITIONAL DISCHARGE,
AS APPLICABLE.
S 5. The family court act is amended by adding a new section 743 to
read as follows:
S 743. ACCEPTANCE OF AN ADMISSION. (A) BEFORE ACCEPTING AN ADMISSION,
THE COURT SHALL ADVISE THE RESPONDENT OF HIS OR HER RIGHT TO A
FACT-FINDING HEARING. THE COURT SHALL ALSO ASCERTAIN THROUGH ALLOCUTION
OF THE RESPONDENT AND HIS OR HER PARENT OR PERSON LEGALLY RESPONSIBLE
FOR HIS OR HER CARE, IF PRESENT, THAT THE RESPONDENT:
(I) COMMITTED THE ACT OR ACTS TO WHICH AN ADMISSION IS BEING ENTERED;
(II) IS VOLUNTARILY WAIVING HIS OR HER RIGHT TO A FACT-FINDING HEAR-
ING; AND
(III) IS AWARE OF THE POSSIBLE SPECIFIC DISPOSITIONAL ORDERS.
THE PROVISIONS OF THIS SUBDIVISION SHALL NOT BE WAIVED.
(B) UPON ACCEPTANCE OF AN ADMISSION, THE COURT SHALL STATE THE REASONS
FOR ITS DETERMINATION AND SHALL ENTER A FACT-FINDING ORDER. THE COURT
SHALL SCHEDULE A DISPOSITIONAL HEARING IN ACCORDANCE WITH SUBDIVISION
(B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS PART.
S 6. Section 776 of the family court act is amended to read as
follows:
S 776. Failure to comply with terms and conditions of suspended judg-
ment. [If a] A respondent [is] brought before the court for failure to
comply with reasonable terms and conditions of [a] AN ORDER OF suspended
judgment [issued under this article and if,] SHALL BE DEALT WITH IN
ACCORDANCE WITH SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS PART. IF,
after hearing, the court [is satisfied] DETERMINES by competent proof
that the respondent WITHOUT JUST CAUSE failed to comply with such terms
and conditions, the court may ADJOURN THE MATTER FOR A NEW DISPOSITIONAL
HEARING IN ACCORDANCE WITH SUBDIVISION (B) OR (C) OF SECTION SEVEN
HUNDRED FORTY-NINE OF THIS ARTICLE. THE COURT MAY revoke the [suspen-
sion] ORDER of SUSPENDED judgment and proceed to make any order that
might have been made at the time judgment was suspended.
S 7. Section 779 of the family court act is amended to read as
follows:
S 779. [Failure] JURISDICTION AND SUPERVISION OF RESPONDENT PLACED ON
PROBATION; FAILURE to comply with terms of probation. [If a] (A) A
RESPONDENT WHO IS PLACED ON PROBATION IN ACCORDANCE WITH SECTION SEVEN
HUNDRED FIFTY-SEVEN OF THIS ARTICLE SHALL REMAIN UNDER THE LEGAL JURIS-
DICTION OF THE COURT PENDING EXPIRATION OR TERMINATION OF THE PERIOD OF
PROBATION.
(B) THE PROBATION SERVICE SHALL SUPERVISE THE RESPONDENT DURING THE
PERIOD OF SUCH LEGAL JURISDICTION.
(C) A respondent [is] brought before the court for failure to comply
with reasonable terms and conditions of an order of probation issued
under SECTION SEVEN HUNDRED FIFTY-SEVEN OF this article [and if,] SHALL
BE DEALT WITH IN ACCORDANCE WITH SECTION SEVEN HUNDRED SEVENTY-NINE-A OF
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THIS PART. IF, after hearing PURSUANT TO SUCH SECTION, the court [is
satisfied] DETERMINES by competent proof that the respondent without
just cause failed to comply with such terms and conditions, the court
may ADJOURN THE MATTER FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE
WITH SUBDIVISION (B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS
ARTICLE. THE COURT MAY revoke the order of probation and proceed to make
any order that might have been made at the time the order of probation
was entered.
S 8. Section 779-a of the family court act, as amended by chapter 309
of the laws of 1996, is amended to read as follows:
S 779-a. [Declaration of delinquency concerning juvenile delinquents
and persons in need of supervision.] PETITION AND HEARING ON VIOLATION
OF ORDER OF PROBATION OR SUSPENDED JUDGMENT. (A) If, at any time during
the period of [a disposition of] probation, OR SUSPENDED JUDGMENT the
[court] PETITIONER, PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY
has reasonable cause to believe THAT the respondent has violated a
condition of the disposition, [it] THE PETITIONER, PROBATION SERVICE OR
APPROPRIATE PRESENTMENT AGENCY may [declare the respondent delinquent
and] file a [written declaration of delinquency. Upon such filing, the
respondent shall be declared delinquent of his disposition of probation
and such disposition shall be tolled. The] VIOLATION PETITION.
(B) THE PETITION MUST BE VERIFIED AND SUBSCRIBED BY THE PETITIONER,
PROBATION SERVICE OR THE APPROPRIATE PRESENTMENT AGENCY. THE PETITION
MUST SPECIFY THE CONDITION OR CONDITIONS OF THE ORDER VIOLATED AND A
REASONABLE DESCRIPTION OF THE DATE, TIME, PLACE AND MANNER IN WHICH THE
VIOLATION OCCURRED. NON-HEARSAY ALLEGATIONS OF THE FACTUAL PART OF THE
PETITION OR OF ANY SUPPORTING DEPOSITIONS MUST ESTABLISH, IF TRUE, EVERY
VIOLATION CHARGED.
(C) UPON THE FILING OF A VIOLATION PETITION, THE court [then must
promptly take reasonable and appropriate action] SHALL ISSUE A SUMMONS
OR WARRANT IN ACCORDANCE WITH SECTION SEVEN HUNDRED TWENTY-FIVE OF THIS
ARTICLE to cause the respondent to appear before [it for the purpose of
enabling] the court [to make a final determination with respect to the
alleged delinquency]. [The] WHERE THE RESPONDENT IS ON PROBATION PURSU-
ANT TO SECTION SEVEN HUNDRED FIFTY-SEVEN OF THIS ARTICLE, THE time for
prompt court action shall not be construed against the probation service
when the respondent has absconded from probation supervision and the
respondent's whereabouts are unknown. The court must be notified prompt-
ly of the circumstances of any such probationers.
(D) IF A PETITION IS FILED UNDER SUBDIVISION (A) OF THIS SECTION, THE
PERIOD OF PROBATION OR SUSPENDED JUDGMENT PRESCRIBED BY SECTION SEVEN
HUNDRED FIFTY-FIVE OR SEVEN HUNDRED FIFTY-SEVEN OF THIS ARTICLE SHALL BE
INTERRUPTED AS OF THE DATE OF THE FILING OF THE PETITION. SUCH INTER-
RUPTION SHALL CONTINUE UNTIL A FINAL DETERMINATION OF THE PETITION OR
UNTIL SUCH TIME AS THE RESPONDENT REACHES THE MAXIMUM AGE OF ACCEPTANCE
INTO PLACEMENT WITH THE COMMISSIONER OF SOCIAL SERVICES. IF THE COURT
DISMISSES THE VIOLATION PETITION, THE PERIOD OF INTERRUPTION SHALL BE
CREDITED TO THE PERIOD OF PROBATION OR SUSPENDED JUDGMENT.
(E) (I) THE COURT MAY NOT REVOKE AN ORDER OF PROBATION OR SUSPENDED
JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT PROOF THAT THE RESPOND-
ENT HAS VIOLATED A CONDITION OF SUCH ORDER WITHOUT JUST CAUSE AND THAT
THE RESPONDENT HAS HAD AN OPPORTUNITY TO BE HEARD. THE RESPONDENT IS
ENTITLED TO A HEARING PROMPTLY AFTER A VIOLATION PETITION HAS BEEN
FILED. THE RESPONDENT IS ENTITLED TO COUNSEL AT ALL STAGES OF THE
PROCEEDING AND MAY NOT WAIVE REPRESENTATION BY COUNSEL EXCEPT AS
PROVIDED IN SECTION TWO HUNDRED FORTY-NINE-A OF THIS ACT.
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(II) AT THE TIME OF THE RESPONDENT'S FIRST APPEARANCE FOLLOWING THE
FILING OF A VIOLATION PETITION, THE COURT MUST:
(A) ADVISE THE RESPONDENT OF THE CONTENTS OF THE PETITION AND FURNISH
A COPY TO THE RESPONDENT;
(B) ADVISE THE RESPONDENT THAT HE OR SHE IS ENTITLED TO COUNSEL AT ALL
STAGES OF A PROCEEDING UNDER THIS SECTION AND APPOINT AN ATTORNEY PURSU-
ANT TO SECTION TWO HUNDRED FORTY-NINE OF THIS ACT IF INDEPENDENT LEGAL
REPRESENTATION IS NOT AVAILABLE TO THE RESPONDENT. IF PRACTICABLE, THE
COURT SHALL APPOINT THE SAME ATTORNEY WHO REPRESENTED THE RESPONDENT IN
THE ORIGINAL PROCEEDINGS UNDER THIS ARTICLE;
(C) DETERMINE WHETHER THE RESPONDENT SHOULD BE RELEASED OR DETAINED
PURSUANT TO SECTION SEVEN HUNDRED TWENTY OF THIS ARTICLE; AND
(D) ASK THE RESPONDENT WHETHER HE OR SHE WISHES TO MAKE ANY STATEMENT
WITH RESPECT TO THE VIOLATION. IF THE RESPONDENT MAKES A STATEMENT, THE
COURT MAY ACCEPT IT AND BASE ITS DECISION UPON THE STATEMENT. THE
PROVISIONS OF SECTION SEVEN HUNDRED FORTY-THREE OF THIS ARTICLE SHALL
APPLY IN DETERMINING WHETHER A STATEMENT SHOULD BE ACCEPTED. IF THE
COURT DOES NOT ACCEPT THE STATEMENT OR IF THE RESPONDENT DOES NOT MAKE A
STATEMENT, THE COURT SHALL CONDUCT A HEARING.
(III) UPON REQUEST, THE COURT SHALL GRANT A REASONABLE ADJOURNMENT TO
THE RESPONDENT TO PREPARE FOR THE HEARING.
(IV) AT THE HEARING, THE COURT MAY RECEIVE ANY RELEVANT, COMPETENT AND
MATERIAL EVIDENCE. THE RESPONDENT MAY CROSS-EXAMINE WITNESSES AND PRES-
ENT EVIDENCE ON HIS OR HER OWN BEHALF. THE COURT'S DETERMINATION MUST
BE BASED UPON COMPETENT EVIDENCE.
(V) AT THE CONCLUSION OF THE HEARING, THE COURT MAY ADJOURN THE MATTER
FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE WITH SUBDIVISION (B) OR
(C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. THE COURT MAY
REVOKE, CONTINUE OR MODIFY THE ORDER OF PROBATION OR SUSPENDED JUDGMENT.
IF THE COURT REVOKES THE ORDER, IT SHALL ORDER A DIFFERENT DISPOSITION
PURSUANT TO SUBDIVISION ONE OF SECTION SEVEN HUNDRED FIFTY-FOUR OF THIS
ARTICLE AND SHALL MAKE FINDINGS IN ACCORDANCE WITH SUBDIVISION TWO OF
SUCH SECTION. IF THE COURT CONTINUES THE ORDER OF PROBATION OR SUSPENDED
JUDGMENT, IT SHALL DISMISS THE PETITION OF VIOLATION.
S 9. This act shall take effect on the ninetieth day after it shall
have become a law and shall apply to orders of adjournment in contem-
plation of dismissal issued and petitions for violations of probation,
conditional discharge and suspended judgment filed on or after such
effective date.