BILL NUMBER: S6402

SPONSOR: MONTGOMERY
 
TITLE OF BILL:  An act to amend the penal law and the criminal proce-
dure law, in relation to pleas of guilty and removal of adolescent
offender proceedings to the family court

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Enactment in New York State of the "raise the age" statute ("RTA") has
resulted in a long-sought transformation of the treatment of older
adolescents in the justice system. See L. 2017, c.59, part www.  Its
provisions for removing cases from the Youth Parts of superior courts to
Family Court provide an essential safety valve for 16-year olds (and,
starting October 1, 2019, 17-year olds), who are charged with felonies
as adolescent offenders in the adult criminal justice system but who
would more appropriately be afforded the opportunity either for diver-
sion (adjustment) without prosecution or for treatment as juvenile
delinquents. However, two aspects of the removal provisions have caused
confusion as the first phase of implementation of the statute has been
underway. This measure would address these problems.
              

First, pleas of guilty in adolescent offender cases to reduced charges
constituting misdemeanors are deemed to be an exception to the infancy
defense and no explicit authority exists for these cases to be removed
to Family Court, notwithstanding the fact that all other misdemeanor
cases are treated as juvenile delinquency matters.  See Penal Law §
30.00(3)(d)(ii). In contrast, verdicts for charges for which youth are
not criminally responsible in both adolescent and juvenile offender
cases must be removed to Family Court and pleas in juvenile offender
cases to such crimes may be subject to removal upon recommendation of
the district attorney. See CPL §§ 220.10 ((5)(g)(iii), 310.85(3),
330.25. No justification exists for precluding removal solely for pleas
in adolescent offender cases and for automatically deeming such youth to
be criminally responsible.

This measure amends the infancy provision of the Penal Law to clarify
that an adolescent offender is criminally responsible for pleas to
reduced charges unless the matter is removed to Family Court. See Penal
Law § 30.00(3)(d)(ii). Additionally, the measure adds a new paragraph
(g-1) to Criminal Procedure Law § 220.10(5) to require that a plea by an
adolescent offender to a charge constituting a misdemeanor must be
replaced by an order of fact-finding of juvenile delinquency and must be
removed to the Family Court for disposition.  Where the plea is to a
felony, e.g., a felony for which different criteria for removal are
applicable as compared to the original charge, the matter may be consid-
ered for removal to Family Court in accordance with section 722.23 and
Article 725 of the Criminal Procedure Law.

Second, there has been considerable confusion over the apparent contra-
diction between the eligibility of adolescent offenders whose cases have
been removed to Family Court for consideration for adjustment, and the
mandates in sections 725.05 and 725.10 of the Criminal Procedure Law for
such youth to appear before the Family Court within ten days, and for a
Family Court juvenile delinquency proceeding to be commenced. Although
the RTA provides that "notwithstanding any other provision of law,"
eligible offenders are entitled to be considered for their suitability
for adjustment services after removal from a Youth Part (see CPL §§
722.21(4); 722.23(1)(g)), there is no corresponding amendment recogniz-
ing this entitlement in the removal provisions of the Criminal Procedure
Law that are cross-referenced in sections 722.21(2)(b) and 722.23(1)(a)
of the Criminal Procedure Law. Cf., CPL §§ 725.05(7), 725.10(1).

In order to effectuate the clear legislative intent of the RTA, this
measure makes technical, clarifying amendments to both sections 725.05
and 725.10 of the Criminal Procedure Law. The measure reconciles the
various provisions by clarifying that, in removing an adolescent offen-
der case to the Family Court, where the offender is statutorily eligible
for consideration for adjustment, the Youth Part judge should direct the
youth to the intake office of the local probation department for an
assessment of adjustment suitability without an appearance in Family
Court and without an actual Family Court juvenile delinquency case being
commenced. Youth who are in detention or in a sheriff's custody would be
required to appear before a Family Court judge "not later than the next
day the court is in session," but would nonetheless be brought to
probation for adjustment consideration if statutorily eligible. The
measure leaves in tact, however, the provision requiring youths -
including, among others, juvenile offenders, who are ineligible for
adjustment - to appear in Family Court within ten days of removal. Like-
wise, it retains the requirement for a detained youth to appear in Fami-
ly Court not later than the next day such court is in session, while
nonetheless underscoring that the fact that a juvenile is in detention
"shall not preclude the probation service from adjusting the case if the
 
JUVENILE is otherwise eligible for adjustment." Nor does it affect the
need for a Family Court appearance by a juvenile, against whom a tempo-
rary, pre-petition order of protection has been issued pursuant to Fami-
ly Court Act § 304.2(1).

Other than in a detention or temporary order of protection case, there-
fore, this measure will obviate the need for an appearance by the juve-
nile in Family Court unless and until it is necessary on the ground that
the juvenile's case has not been adjusted successfully and the present-
ment agency has elected to go forward with a juvenile delinquency
proceeding.

This measure, which would have no meaningful fiscal impact, would take
effect immediately.

 
LEGISLATIVE HISTORY:

None. New Proposal.