S T A T E O F N E W Y O R K
________________________________________________________________________
9173--A
I N A S S E M B L Y
February 7, 2022
___________
Introduced by M. of A. CUSICK, WOERNER, BUTTENSCHON, McDONALD, CYMBROW-
ITZ, GRIFFIN, ABBATE, THIELE, WALLACE, EICHENSTEIN -- read once and
referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the criminal procedure law and the family court act, in
relation to the prosecution of certain juveniles charged with certain
felony crimes and the handling of such cases
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 722.23 of the criminal procedure law, as added by
section 1-a of part WWW of chapter 59 of the laws of 2017, is amended to
read as follows:
§ 722.23 Removal of adolescent offenders to family court.
1. (a) Following the arraignment of a defendant charged with a crime
committed when he or she was sixteen[,] or [commencing October first,
two thousand nineteen,] seventeen years of age, other than any class A
felony except for those defined in article two hundred twenty of the
penal law, a violent felony defined in section 70.02 of the penal law or
a felony listed in paragraph one or two of subdivision forty-two of
section 1.20 of this chapter, A FELONY IN VIOLATION OF ARTICLE TWO
HUNDRED SIXTY-FIVE OF THE PENAL LAW, or an offense set forth in the
vehicle and traffic law, the court shall order the removal of the action
to the family court in accordance with the applicable provisions of
article seven hundred twenty-five of this title unless, within thirty
calendar days of such arraignment, the district attorney makes a motion
to prevent removal of the action pursuant to this subdivision. If the
defendant fails to report to the probation department as directed, the
thirty day time period shall be tolled until such time as he or she
reports to the probation department.
(b) A motion to prevent removal of an action in youth part shall be
made in writing and upon prompt notice to the defendant. The motion
shall contain allegations of sworn fact based upon personal knowledge of
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD14468-04-2
A. 9173--A 2
the affiant, and shall indicate if the district attorney is requesting a
hearing. The motion shall be noticed to be heard promptly.
(c) The defendant shall be given an opportunity to reply. The defend-
ant shall be granted any reasonable request for a delay. Either party
may request a hearing on the facts alleged in the motion to prevent
removal of the action. The hearing shall be held expeditiously.
(d) The court shall deny the motion to prevent removal of the action
in youth part unless the court makes a determination upon such motion by
the district attorney that extraordinary circumstances exist that should
prevent the transfer of the action to family court.
(e) The court shall make a determination in writing or on the record
within five days of the conclusion of the hearing or submission by the
defense, whichever is later. Such determination shall include findings
of fact and to the extent practicable conclusions of law.
(f) For the purposes of this section, there shall be a presumption
against custody and case planning services shall be made available to
the defendant.
(g) Notwithstanding any other provision of law, section 308.1 of the
family court act shall apply to all actions transferred pursuant to this
section provided, however, such cases shall not be considered removals
subject to subdivision thirteen of such section 308.1.
(h) Nothing in this subdivision shall preclude, and a court may order,
the removal of an action to family court where all parties agree or
pursuant to this chapter.
2. (a) Upon the arraignment of a defendant charged with a crime
committed when he or she was sixteen or[, commencing October first, two
thousand nineteen,] seventeen years of age on a class A felony, other
than those defined in article [220] TWO HUNDRED TWENTY of the penal law,
[or] a violent felony defined in section 70.02 of the penal law, OR A
FELONY IN VIOLATION OF ARTICLE TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW,
the court shall schedule an appearance no later than six calendar days
from such arraignment for the purpose of reviewing the accusatory
instrument pursuant to this subdivision. The court shall notify the
district attorney and defendant regarding the purpose of such appear-
ance.
(b) Upon such appearance, the court shall review the accusatory
instrument and any other relevant facts for the purpose of [making a
determination] DETERMINING WHETHER TO REMOVE THE ACTION TO THE FAMILY
COURT pursuant to paragraph (c) of this subdivision. Both parties may be
heard and submit information relevant to the determination.
(c) [The court shall order the action to proceed in accordance with
subdivision one of this section unless, after reviewing the papers and
hearing from the parties, the court determines in writing that] OTHER
THAN ANY CLASS A FELONY EXCEPT FOR THOSE DEFINED IN ARTICLE TWO HUNDRED
TWENTY OF THE PENAL LAW, A VIOLENT FELONY DEFINED IN SECTION 70.02 OF
THE PENAL LAW, A FELONY LISTED IN PARAGRAPH ONE OR TWO OF SUBDIVISION
FORTY-TWO OF SECTION 1.20 OF THIS CHAPTER, A FELONY IN VIOLATION OF
ARTICLE TWO HUNDRED SIXTY-FIVE OF THE PENAL LAW, OR AN OFFENSE SET FORTH
IN THE VEHICLE AND TRAFFIC LAW, THE COURT MAY, BUT SHALL NOT BE REQUIRED
TO, ORDER REMOVAL AFTER CONSIDERING THE CRITERIA SPECIFIED IN SUBDIVI-
SION TWO OF SECTION 722.22 OF THIS ARTICLE; PROVIDED, HOWEVER, THAT THE
COURT SHALL NOT ORDER REMOVAL IF the district attorney proved by a
preponderance of the evidence one or more of the following as set forth
in the accusatory instrument:
(i) the defendant caused OR ACTIVELY PARTICIPATED IN A CRIME THAT
CAUSED significant physical injury to a person other than a participant
A. 9173--A 3
in the offense OR A CRIME IN ACCORDANCE WITH ACCESSORIAL CONDUCT AS
DEFINED IN SECTION 20.00 OF THE PENAL LAW OR ACTIVELY PARTICIPATED IN A
CRIME THROUGH ACCESSORIAL CONDUCT AS DEFINED IN SECTION 20.00 OF THE
PENAL LAW; or
(ii) the defendant [displayed] POSSESSED a firearm, shotgun, rifle or
deadly weapon as defined in the penal law [in furtherance of such
offense] OR POSSESSED WHAT APPEARED TO BE A FIREARM, SHOTGUN, RIFLE OR
DEADLY WEAPON AS DEFINED IN THE PENAL LAW, OR ACTIVELY PARTICIPATED IN A
CRIME WHERE A CO-DEFENDANT POSSESSED A FIREARM, SHOTGUN, RIFLE OR DEADLY
WEAPON AS DEFINED IN THE PENAL LAW OR WHERE A CO-DEFENDANT POSSESSED
WHAT APPEARS TO BE A FIREARM, SHOTGUN, RIFLE OR DEADLY WEAPON AS DEFINED
IN THE PENAL LAW; or
(iii) the defendant unlawfully engaged in sexual intercourse, oral
sexual conduct, anal sexual conduct or sexual contact as defined in
section 130.00 of the penal law.
(d) Where the court makes a determination that the action shall not
proceed in accordance with subdivision one of this section, such deter-
mination shall be made in writing or on the record and shall include
findings of fact and to the extent practicable conclusions of law.
(e) Nothing in this subdivision shall preclude, and the court may
order, the removal of an action to family court where all parties agree
or pursuant to this chapter.
3. Notwithstanding the provisions of any other law, if at any time one
or more charges in the accusatory instrument are reduced, such that the
elements of the highest remaining charge would be removable pursuant to
subdivisions one or two of this section, then the court, sua sponte or
in response to a motion pursuant to subdivisions one or two of this
section by the defendant, shall promptly notify the parties and direct
that the matter proceed in accordance with subdivision one of this
section, provided, however, that in such instance, the district attorney
must file any motion to prevent removal within thirty days of effecting
or receiving notice of such reduction.
4. A defendant may waive review of the accusatory instrument by the
court and the opportunity for removal in accordance with this section,
provided that such waiver is made by the defendant knowingly, voluntar-
ily and in open court, in the presence of and with the approval of his
or her counsel and the court. An earlier waiver shall not constitute a
waiver of review and the opportunity for removal under this section.
§ 2. Subdivision 5 of section 722.21 of the criminal procedure law, as
added by section 1-a of part WWW of chapter 59 of the laws of 2017, is
amended to read as follows:
5. Notwithstanding subdivisions two and three of this section, at the
request of the district attorney, the court shall order removal of an
action against an adolescent offender charged with an offense listed in
paragraph (a) of subdivision two of section 722.23 of this article, to
the family court pursuant to the provisions of article seven hundred
twenty-five of this title and upon consideration of the criteria speci-
fied in subdivision two of section 722.22 of this article, it is deter-
mined that to do so would be in the interests of justice. Where, howev-
er, the felony complaint charges the adolescent offender with murder in
the second degree as defined in section 125.25 of the penal law, rape in
the first degree as defined in subdivision one of section 130.35 of the
penal law, criminal sexual act in the first degree as defined in subdi-
vision one of section 130.50 of the penal law, or an armed felony as
defined in paragraph (a) of subdivision forty-one of section 1.20 of
this chapter, a determination that such action be removed to the family
A. 9173--A 4
court shall, in addition, be based upon a finding of one or more of the
following factors: (i) mitigating circumstances that bear directly upon
the manner in which the crime was committed; or (ii) where the defendant
was not the sole participant in the crime, the defendant's participation
was relatively minor although not so minor as to constitute a defense to
the prosecution; or (iii) possible deficiencies in proof of the crime.
IN DETERMINING WHETHER AN ACTION BE REMOVED TO THE FAMILY COURT, THE
COURT MAY ALSO CONSIDER THE FACTORS PROVIDED FOR IN SUBDIVISION TWO OF
SECTION 722.22 OF THIS ARTICLE.
§ 3. Paragraphs (h) and (i) of subdivision 2 of section 722.22 of the
criminal procedure law, as added by section 1-a of part WWW of chapter
59 of the laws of 2017, are amended to read as follows:
(h) where the court deems it appropriate, the attitude of the
complainant or victim with respect to the motion; [and]
(i) ANY OTHER PENDING CHARGES AGAINST THE INDIVIDUAL;
(J) WHETHER THE INDIVIDUAL WAS AN ACTIVE PARTICIPANT IN THE CRIME OR
WHETHER THE INDIVIDUAL IS LIABLE THROUGH ACCESSORIAL CONDUCT AS DEFINED
IN SECTION 20.00 OF THE PENAL LAW;
(K) any other relevant fact indicating that a judgment of conviction
in the criminal court would serve no useful purpose; AND
(L) ANY OTHER FACTOR THE COURT DEEMS RELEVANT TO ITS DETERMINATION.
§ 4. Section 381.1 of the family court act, as added by chapter 920 of
the laws of 1982, is amended to read as follows:
§ 381.1. Transfer of records and information to institutions and agen-
cies. 1. Whenever a person is placed with an institution suitable for
placement of a person adjudicated a juvenile delinquent maintained by
the state or any subdivision thereof or to an authorized agency includ-
ing the division for youth, the family court placing such person shall
forthwith transmit a copy of the orders of the family court pursuant to
sections 352.1 and 352.2 and of the probation report and all other rele-
vant evaluative records in the possession of the family court and
probation department related to such person, including but not limited
to any diagnostic, educational, medical, psychological and psychiatric
records with respect to such person to such institution or agency,
notwithstanding any contrary provision of law.
2. FOR ANY DEFENDANT APPEARING BEFORE THE YOUTH PART OF THE SUPERIOR
COURT, THE FAMILY COURT SHALL, UPON REQUEST OF THE YOUTH PART JUDGE,
FORWARD A COPY OF ALL PREVIOUS FAMILY COURT RECORDS CREATED UNDER THIS
ARTICLE RELATING TO SUCH DEFENDANT IN ORDER TO ASSIST THE YOUTH PART'S
DETERMINATION AS TO WHETHER TO REMOVE A CASE TO FAMILY COURT, INCLUDING,
NOTWITHSTANDING ANY CONTRARY PROVISION OF LAW, WHETHER THE CASE WAS
SEALED PURSUANT TO SUBDIVISION ONE OF SECTION 375.1 OF THIS ARTICLE
BASED ON A DISPOSITION DEFINED IN PARAGRAPH (A), (B), (C), (D), (F),
(G), (H), OR (I) OF SUBDIVISION TWO OF SECTION 375.1 OF THIS ARTICLE.
SUCH RECORDS SHALL INCLUDE ANY RECORDS CREATED BY PROBATION SERVICES IN
ACCORDANCE WITH SECTION 308.1 OF THIS ARTICLE. THE CHIEF ADMINISTRATOR
OF THE UNIFIED COURT SYSTEM SHALL CREATE AN ELECTRONIC SHARING MECHANISM
TO ENSURE SECURE, TIMELY, AND EFFICIENT ACCESS BETWEEN THE FAMILY COURT
AND YOUTH PART, AS WELL AS TO THE PROSECUTOR ON THE YOUTH PART CASE, AND
THE DEFENSE.
3. WHENEVER A PERSON SUBJECT TO THIS ACT HAS BEEN ARRESTED, THE FAMILY
COURT SHALL PROMPTLY MAKE ANY AND ALL PREVIOUS FAMILY COURT RECORDS
CREATED UNDER THIS ARTICLE RELATED TO THAT PERSON AVAILABLE TO THE
PROBATION SERVICES FOR THE PURPOSE OF DETERMINING WHETHER THE PERSON IS
ELIGIBLE FOR ADJUSTMENT SERVICES, INCLUDING, NOTWITHSTANDING ANY CONTRA-
RY PROVISION OF LAW, WHETHER THE CASE WAS SEALED PURSUANT TO SUBDIVISION
A. 9173--A 5
ONE OF SECTION 375.1 OF THIS ARTICLE BASED ON A DISPOSITION DEFINED IN
PARAGRAPH (A), (B), (C), (D), (F), (G), (H), OR (I) OF SUBDIVISION TWO
OF SECTION 375.1 OF THIS ARTICLE. AN ELECTRONIC SHARING MECHANISM SHALL
BE CREATED BETWEEN THE FAMILY COURT AND PROBATION SERVICES TO ENSURE
SECURE, TIMELY, AND EFFICIENT ACCESS TO SUCH RECORDS.
§ 5. Section 381.3 of the family court act, as added by chapter 920 of
the laws of 1982, paragraph (b) of subdivision 2 as amended by chapter
926 of the laws of 1982, is amended to read as follows:
§ 381.3. Use of police records. 1. All police records relating to the
arrest and disposition of any person under this article shall be kept in
files separate and apart from the arrests of adults and shall be with-
held from public inspection. FOR PURPOSES OF THIS SECTION, "PUBLIC
INSPECTION" SHALL NOT MEAN A PRESENTMENT AGENCY IN FAMILY COURT, A LAW
ENFORCEMENT AGENCY RESPONSIBLE FOR THE SUBJECT CRIMINAL INVESTIGATION,
PROBATION SERVICES, OR ANY AGENCY DESIGNATED IN SUBDIVISION TWO OF
SECTION 720.35 OF THE CRIMINAL PROCEDURE ACT.
2. Notwithstanding the provisions of subdivision one, the family court
in the county in which the petition was adjudicated may, upon motion and
for good cause shown, order [such] ANY AND ALL PREVIOUS FAMILY COURT
records open:
(a) to the respondent or his parent or person responsible for his
care; or
(b) if the respondent is subsequently convicted of a crime, to a judge
of the court in which he was convicted, unless such record has been
sealed pursuant to section 375.1 OF THIS ARTICLE, EXCEPT FOR A DISPOSI-
TION DEFINED IN PARAGRAPH (A), (B), (C), (D), (F), (G), (H), OR (I) OF
SUBDIVISION TWO OF SECTION 375.1 OF THIS ARTICLE.
3. An order issued under subdivision two OF THIS SECTION must be in
writing.
§ 6. Section 302.2 of the family court act, as added by chapter 920 of
the laws of 1982, is amended to read as follows:
§ 302.2. Statute of limitations. 1. A juvenile delinquency proceeding
CHARGING THE RESPONDENT WITH A CRIME ALLEGEDLY COMMITTED WHEN SUCH
RESPONDENT WAS UNDER THE AGE OF SIXTEEN must be commenced within the
period of limitation prescribed in section 30.10 of the criminal proce-
dure law or, unless the alleged act is a designated felony as defined in
subdivision eight of section 301.2 OF THIS PART, commenced before the
respondent's eighteenth birthday, whichever occurs earlier. When the
alleged act constitutes a designated felony as defined in subdivision
eight of section 301.2 OF THIS PART such proceeding must be commenced
within [such] THE period of limitation PRESCRIBED IN SECTION 30.10 OF
THE CRIMINAL PROCEDURE LAW or before the respondent's twentieth birth-
day, whichever occurs earlier.
2. A JUVENILE DELINQUENCY PROCEEDING CHARGING THE RESPONDENT WITH A
CRIME ALLEGEDLY COMMITTED WHEN SUCH RESPONDENT WAS AGE SIXTEEN YEARS OR
OLDER MUST BE COMMENCED WITHIN THE PERIOD OF LIMITATION PRESCRIBED IN
SECTION 30.10 OF THE CRIMINAL PROCEDURE LAW OR, UNLESS THE ALLEGED ACT
IS A DESIGNATED FELONY AS DEFINED IN SUBDIVISION EIGHT OF SECTION 301.2
OF THIS PART, COMMENCED BEFORE THE RESPONDENT'S TWENTIETH BIRTHDAY,
WHICHEVER OCCURS EARLIER. WHEN THE ALLEGED ACT CONSTITUTES A DESIGNATED
FELONY AS DEFINED IN SUBDIVISION EIGHT OF SECTION 301.2 OF THIS PART,
SUCH PROCEEDING MUST BE COMMENCED WITHIN THE PERIOD OF LIMITATION
PRESCRIBED IN SECTION 30.10 OF THE CRIMINAL PROCEDURE LAW OR BEFORE THE
RESPONDENT'S TWENTY-SECOND BIRTHDAY, WHICHEVER OCCURS EARLIER.
§ 7. This act shall take effect immediately.