NY State Assembly Bill 2013-A2602B

Assembly Bill A2602B

2013-2014 Legislative Session

Actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases

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Archive: Last Bill Status - In Senate Committee Children And Families Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 22, 2014	referred to children and families delivered to senate passed assembly
Jan 08, 2014	ordered to third reading cal.145 returned to assembly died in senate
Jun 05, 2013	referred to children and families delivered to senate passed assembly
May 31, 2013	advanced to third reading cal.460
May 29, 2013	reported
May 22, 2013	print number 2602b
May 22, 2013	amend and recommit to codes
May 20, 2013	reported referred to codes
May 07, 2013	print number 2602a
May 07, 2013	amend and recommit to children and families
Jan 16, 2013	referred to children and families

Bill Amendments

Original

B (Active)

co-Sponsors

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2013-A2602 - Details

See Senate Version of this Bill:: S3831
Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§315.3, 360.2, 735, 776, 779 & 779-a, add §743, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: A10520, S7581
2015-2016: S5286

2013-A2602 - Summary

Relates to actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases.

2013-A2602 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2602

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 16, 2013
                               ___________

Introduced  by  M.  of  A. PAULIN, CRESPO, JAFFEE, GALEF, GIBSON, MAGEE,
  MOYA, RIVERA, TITONE, WEPRIN -- (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  535  of  the  laws  of 2011, 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  [of]
subdivision  (a) of section [19.07] 19.25 of the mental hygiene law. The
court may, as a condition of an adjournment in contemplation of dismiss-
al order, in cases where the record indicates that the respondent is  an
eligible  person as defined in section four hundred fifty-eight-l of the
social services law and has allegedly committed an eligible  offense  as
defined in such section, direct the respondent to attend and complete an

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03050-01-3

A. 2602                             2

education  reform  program  established pursuant to section four hundred
fifty-eight-l of the social services 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 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 of 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. 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.
  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

A. 2602                             3

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  4. Subdivision (h) of section 735 of the family court act, as added
by section 7 of part E of chapter 57 of the laws of 2005, is amended  to
read as follows:
  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, 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.
  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 SUBJECT TO 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 [suspension] ORDER of SUSPENDED  judg-
ment 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.

A. 2602                             4

  (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 SUBJECT TO SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS ARTICLE.  IF,
after  hearing PURSUANT TO SUCH SECTION, the court [is satisfied] DETER-
MINES 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 JUDGEMENT. (A) If, at any time during
the  period  of  [a  disposition  of] probation, the [court] PETITIONER,
PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause
to believe 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 PURSUANT
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) HEARING ON VIOLATION. (I) THE COURT MAY NOT  REVOKE  AN  ORDER  OF
PROBATION  OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT

A. 2602                             5

PROOF THAT THE RESPONDENT 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 PETI-
TION 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.
  (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.

co-Sponsors

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2013-A2602A - Details

See Senate Version of this Bill:: S3831
Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§315.3, 360.2, 735, 776, 779 & 779-a, add §743, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: A10520, S7581
2015-2016: S5286

2013-A2602A - Summary

Relates to actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases.

2013-A2602A - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2602--A

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 16, 2013
                               ___________

Introduced  by  M.  of  A. PAULIN, CRESPO, JAFFEE, GALEF, GIBSON, MAGEE,
  MOYA, RIVERA, TITONE, WEPRIN -- (at request of  the  Office  of  Court
  Administration) -- read once and referred to the Committee on Children
  and  Families -- committee discharged, bill amended, ordered reprinted
  as amended and recommitted to said committee

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 535 of the laws  of  2011,  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 [of]
subdivision (a) of section [19.07] 19.25 of the mental hygiene law.  The
court may, as a condition of an adjournment in contemplation of dismiss-
al  order, in cases where the record indicates that the respondent is an
eligible person as defined in section four hundred fifty-eight-l of  the
social  services  law and has allegedly committed an eligible offense as

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03050-04-3

A. 2602--A                          2

defined in such section, direct the respondent to attend and complete an
education reform program established pursuant to  section  four  hundred
fifty-eight-l  of  the social services 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 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 of 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. 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.
  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

A. 2602--A                          3

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  4. Subdivision (h) of section 735 of the family court act, as added
by section 7 of part E of chapter 57 of the laws of 2005, is amended  to
read as follows:
  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, 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.
  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 SUBJECT TO 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 [suspension] ORDER of SUSPENDED  judg-
ment 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.

A. 2602--A                          4

  (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 SUBJECT TO SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS ARTICLE.  IF,
after  hearing PURSUANT TO SUCH SECTION, the court [is satisfied] DETER-
MINES 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,  the  [court]  PETITIONER,
PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause
to  believe  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 PURSUANT
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)  HEARING  ON  VIOLATION.  (I) THE COURT MAY NOT REVOKE AN ORDER OF
PROBATION OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY  COMPETENT

A. 2602--A                          5

PROOF THAT THE RESPONDENT 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 PETI-
TION 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.
  (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.

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2013-A2602B (ACTIVE) - Details

See Senate Version of this Bill:: S3831
Current Committee:: Senate Children And Families
Law Section:: Family Court Act
Laws Affected:: Amd §§315.3, 360.2, 735, 776, 779 & 779-a, add §743, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: A10520, S7581
2015-2016: S5286

2013-A2602B (ACTIVE) - Summary

Relates to actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases.

2013-A2602B (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2602--B

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 16, 2013
                               ___________

Introduced  by  M.  of  A. PAULIN, CRESPO, JAFFEE, GALEF, GIBSON, MAGEE,
  MOYA, RIVERA, TITONE, WEPRIN -- (at request of  the  Office  of  Court
  Administration) -- read once and referred to the Committee on Children
  and  Families -- committee discharged, bill amended, ordered reprinted
  as amended and recommitted to said committee -- reported and  referred
  to  the  Committee  on  Codes  --  committee discharged, bill amended,
  ordered reprinted as amended and recommitted to said committee

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 535 of the laws  of  2011,  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 [of]
subdivision (a) of section [19.07] 19.25 of the mental hygiene law.  The
court may, as a condition of an adjournment in contemplation of dismiss-
al  order, in cases where the record indicates that the respondent is an

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03050-06-3

A. 2602--B                          2

eligible person as defined in section four hundred fifty-eight-l of  the
social  services  law and has allegedly committed an eligible offense as
defined in such section, direct the respondent to attend and complete an
education  reform  program  established pursuant to section four hundred
fifty-eight-l of the social services 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 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 of 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 SPECIFIC
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
REASONABLE ADJOURNMENT TO THE RESPONDENT IN  ORDER  TO  RESPOND  TO  THE
PETITION  AND TO PREPARE FOR A HEARING. IF THE COURT DETERMINES THAT THE
RESPONDENT SHOULD BE DETAINED IN ACCORDANCE WITH SUBDIVISIONS THREE  AND
FIVE  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 COMPETENT PROOF THAT ONE OR MORE CONDITIONS
OF THE ORDER HAVE BEEN VIOLATED IN AN IMPORTANT RESPECT  AND  THAT  SUCH
VIOLATION  OR  VIOLATIONS WERE WITHOUT JUST CAUSE, 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-FINDING 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. Subdivisions 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:
  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] AN OFFICE OF CHILDREN AND FAMILY SERVICES facility.
  5. If the court determines THAT there was no violation of probation OR
CONDITIONAL  DISCHARGE  by  the  respondent,  the period of interruption

A. 2602--B                          3

shall be credited to the period of probation OR  CONDITIONAL  DISCHARGE,
AS APPLICABLE.
  S  4. Subdivision (h) of section 735 of the family court act, as added
by section 7 of part E of chapter 57 of the laws of 2005, is amended  to
read as follows:
  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, 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.
  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 SUBJECT TO 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 [suspension] ORDER of SUSPENDED  judg-
ment 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

A. 2602--B                          4

under SECTION SEVEN HUNDRED FIFTY-SEVEN OF this article [and if,]  SHALL
BE  SUBJECT TO SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS ARTICLE. IF,
after hearing PURSUANT TO SUCH SECTION, the court [is satisfied]  DETER-
MINES  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, the [court] PETITIONER,
PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause
to believe 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 SPECIFIC  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 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 PURSUANT 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 abscond-
ed  from  probation  supervision  and  the  respondent's whereabouts are
unknown. The court must be notified promptly of the circumstances of any
such probationers.
  (D) IF A PETITION IS FILED UNDER SUBDIVISION (A) OF THIS SECTION,  AND
THE  PETITION  SATISFIES  THE  REQUIREMENTS  OF  SUBDIVISION (B) 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  PETI-
TION.  SUCH  INTERRUPTION  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) HEARING ON VIOLATION. (I) THE COURT MAY NOT  REVOKE  AN  ORDER  OF
PROBATION  OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT
PROOF THAT THE RESPONDENT HAS VIOLATED A CONDITION OF SUCH ORDER  IN  AN
IMPORTANT RESPECT AND WITHOUT JUST CAUSE AND THAT THE RESPONDENT HAS HAD
AN  OPPORTUNITY  TO  BE HEARD.   THE RESPONDENT IS ENTITLED TO A HEARING

A. 2602--B                          5

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.
  (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  POSSIBLE,  THE
COURT  SHALL APPOINT THE SAME ATTORNEY WHO REPRESENTED THE RESPONDENT IN
THE ORIGINAL PROCEEDINGS UNDER THIS ARTICLE; AND
  (C) DETERMINE WHETHER THE RESPONDENT SHOULD BE  RELEASED  OR  DETAINED
PURSUANT TO SECTION SEVEN HUNDRED TWENTY OF THIS ARTICLE.
  (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 EVIDENCE THAT IS  RELE-
VANT,   COMPETENT  AND  MATERIAL.    THE  RESPONDENT  MAY  CROSS-EXAMINE
WITNESSES AND PRESENT 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.

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Assembly Bill A2602B

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Sponsored By

PAULIN

Archive: Last Bill Status - In Senate Committee Children And Families Committee

Bill Amendments

co-Sponsors

Marcos Crespo

Ellen C. Jaffee

Sandy Galef

Vanessa Gibson

2013-A2602 - Details

2013-A2602 - Summary

2013-A2602 - Bill Text download pdf

co-Sponsors

Marcos Crespo

Ellen C. Jaffee

Sandy Galef

Vanessa Gibson

2013-A2602A - Details

2013-A2602A - Summary

2013-A2602A - Bill Text download pdf

co-Sponsors

Marcos Crespo

Ellen C. Jaffee

Sandy Galef

William Magee

2013-A2602B (ACTIVE) - Details

2013-A2602B (ACTIVE) - Summary

2013-A2602B (ACTIVE) - Bill Text download pdf

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