BILL NUMBER: S1099A

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the family court act and the criminal procedure law, in
relation to the custodial interrogation of juveniles by law enforcement

 
PURPOSE:

This bill makes several changes to the Family Court Act to clarify and
protect the rights of children in the custody of law enforcement and
makes corresponding changes to the Criminal Procedure Law to address
children arrested as juvenile offenders and consult with an attorney
before they can be subjected to custodial interrogation by law enforce-
ment, thereby ensuring any waiver of rights under Miranda is genuinely
knowing, voluntary, and intelligent. The bill also requires that a child
arrested without a warrant be brought directly to court, as opposed to
the police station, if a parent or legally responsible adult is not
expected to appear for them and they are not being questioned, unless
otherwise required under the Criminal Procedure Law.

 
              

SUMMARY OF PROVISIONS:

Section One amends FCA § 305.2(3) to make clear that law enforcement's
obligation to "immediately" notify a parent. or person legally responsi-
ble (PLR) that their child has been taken into custody requires that
this notification take place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location. Section Two amends FCA § 305.2(4) (a) to state
that when law enforcement has notified an arrested child's pare t or
PLR' and reasonably believes that the parent or PLR will appear for the
child, law enforcement shall take that child to his home, the station
house, or another agreed upon location to release him to his parent-or
PLR.

Section Three amends FCA § 305.2(4) (b) to state that when law enforce-
ment does not reasonably believe that an arrested child's parent or PLR
will appear for the child, law enforcement shall take that child to
family court or, if family court is not in session, to the designated
magistrate for the child's initial appearance under FCA § 307.4.

Section Four amends FCA § 305.2(4) (c) to conform with other amended
subsections and clarify that an arrested child shall only be taken to
detention if the officer did not release the child or bring the child to
family court or the designated magistrate.

Section Five amends FCA § 305.2(5) to require that when a child has
allegedly committed a designated felony act and the family court is not
in session that law enforcement to take such youth to the most accessi-
ble magistrate to conduct a hearing under FCA section 307.4

Section Six amends FCA § 305.2(6) for conformity only, by deleting the
phrase "In all other cases."

Section Seven amends and renumbers FCA § 305.2(7) to FCA § 305.2(8) and
adds a new FCA § 305.2(7) which clarifies that if an officer determines
that questioning of a child necessary prior to taking certain actions
the officer may take the child to a facility designated as suitable for
questioning by the chief administrator of the courts. Section Seven also
amends FCA § 305.2(8) to state that no child shall be questioned under
this section unless and until "the child has consulted with an attorney
in person, by telephone, or by video conference," and establishes that
this consultation may not be waived. Also, section seven establishes
that a child's statement shall be suppressed when the child has not
consulted with an attorney; when a parent or person legally responsible,
if present, has not been advised of and voluntarily waived Miranda; or
when the questioning of the child was not necessary.

Section 8 amends FCA § 724(a) to make clear that law enforcement's obli-
gation with respect to a child taken into custody as a person in need of
supervision to "immediately" notify a parent or person legally responsi-
ble that their child has been taken into Custody requires that this
notification takes place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location. Section 8 also mends FCA § 724(b) by removing
language relating to when law enforcement deems questioning of the child
necessary, renumbers FCA § 724(d) to FCA § 724(e), and inserts a new FCA
§ 724(d), which clarifies that if an officer determines that questioning
in necessary prior to taking certain actions the officer may take the
child to a facility designated as suitable for questioning by the chief
administrator of the courts. FCA § 724(e) now provides that in addition
to the child's age and the presence or absence of his parents or other
person legally responsible for his care, parental notification shall be
a factor considered in determining the suitability and reasonable period
of time for questioning the child.

Section 8 also creates FCA § 724(f), which provides that statements made
to law enforcement prior to the commencement of a fact-finding hearing
may not be admitted into evidence at a fact-finding hearing.

Section 9 amends CPL § 140.20(6) to create separate paragraphs and in
paragraph (a) makes clear that law enforcement's obligation with respect
to a child taken into, custody as a juvenile offender or as a person
sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a
parent or person legally responsible that their child has been taken
into custody requires that this notification takes place before that
child can be taken from the location at which he/she was taken into
custody to the police station or any other location.

Section 9 also, in proposed CPL § 140.20(6) (c), adds the provision that
no child snail be questioned under this section unless and until 'The
child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section 9 also creates CPL § 140.20(6) (e) to establish that a child's
statement shall be suppressed when the child haS not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.

Section 10 amends CPL § 140.27(5) to create separate paragraphs and in
paragraph (a) makes clear that law enforcement's obligation with respect
to a child taken into custody as a juvenile offender or as a person
sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a
parent or person legally responsible that their child has been taken
into custody requires that this notification takes place before that
child can be taken from the location at which he or she was taken into
custody to the police station or any other location.

Section 10 also, in proposed CPL § 140.27(5) (c) adds the provision that
no child shall be questioned under this section unless and until "the
child-has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section 10 also creates CPL.§ 140.27(5)(e) to establish that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if-present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.
 sk 1 Section 11 amends CPL § 140.40(5) to create separate paragraphs
and in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he or she was taken
into custody to the police station or any other location.

Section 11 also, in proposed CPL § 140.40(5) (c) adds the provision That
the child shall be questioned under this section unless and until "the
child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section 11 also creates CPL § 140.40(5) (e) to establish that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.

Section 12 establishes the effective date of April 1, 2025.

 
EXISTING LAW:

Existing law in New York State does not ensure that children under 18
years old - with all of their inherent developmental limitations - are
adequately and appropriately able to protect their right to remain
silent pursuant to the 5th Amendment of the United States Constitution.
The Family Court Act and the Criminal Procedure Law already require law
enforcement to "immediately" notify the parent or person legally respon-
sible of a child's arrest. The term "immediate," however, is undefined
under current law, and in practice, law enforcement regularly brings
arrested children to the police station house before notifying parents
or persons legally responsible The statutes also state that law enforce-
ment may only interrogate children when "necessary," but do not define
that crucial term. This ambiguity not only places vulnerable youth at
risk of being unreasonably interrogated, but it also forces law enforce-
ment to contend with uncertainty about what they are permitted to do
under the law and leaves the courts with little guidance when called
upon to interpret this requirement. Also,. under current law, when the
police take a youth into custody and wish to interrogate that youth, the
police must advise the child of his/her right to remain silent and,
whenever possible, notify a parent or responsible adult to assist the
youth in deciding whether to waive this right. Family Court; Act §
305.2; Criminal Procedure Law § 140.20(6). This process does not prevent
youth from waiving their Miranda rights nor does it ensure that waiver
is knowing, voluntary and intelligent, as required by the Constitution.

 
JUSTIFICATION:

The bill makes three crucial changes to § 305.2 .of the Family Court Act
and to. § 140.20(6), 140.27(5) and 140.40(5) of the Criminal Procedure
Law. First, it clarifies that law enforcement cannot take a child to the
station house until they have notified a parent or person legally
responsible. Second, it requires that juveniles consult with counsel
before they can waive their rights under Miranda. The bill also makes
the first two changes to Family Court Act § 724.

Family Court Act §§ 305.2 and 724 and Criminal Procedure Law §
140.20(6), 140.27(5) and 140.40(5) already require that law enforcement
immediately notify an arrested child's parent or legally responsible
adult that the child has been taken into custody; this proposal clari-
fies that immediate notification must take place before the officer
takes the child to another location. In an era in which all officers are
equipped with mobile phones, they are able to make contact with parents
without first taking children to the station house. In most cases, this
will also mean the officer will be able to make a more immediate deter-
mination whether to bring the child to the station house, to the family
court, or to another location permitted by statute.

Under this proposal, unless questioning is necessary, after notifying a
parent, the officer may transport a child to his home, to another greed
upon location, or to the station house for purposes of releasing the
child to the parent with a desk appearance ticket under Family Court Act
§ 305.2 or after securing a written promise from the parent to bring the
child to the designated lead agency at specified time and place under
Family Court Act § 724. When the officer does not have reason to believe
that the parent will appear for the child, unless questioning is neces-
sary, the officer may bring the child straightaway to family court,
before a designated magistrate, to the designated lead agency, or to
another location specified in § 305.2(4) or § 724. Under the proposed
Criminal Procedure Law provisions, unless questioning is necessary,
after notifying the parent, the officer may release the youth with a
desk appearance ticket or bring the youth to the appropriate court or
otherwise proceed according to the provisions of the CPL.

This bill would also establish that under Family Court Act § 3052 and
Criminal Procedure Law § 140.20(6), 140.27(5) and 140.40(5), a child
suspect can only be questioned after consulting with an attorney by
phone, video, or in person. That consultation would be non-waivable, and
the taking of a statement without consultation with counsel, necessity,
or waiver of Miranda rights by a parent if present, would result in
suppression of the statement. Under Family Court Act § 724, a statement
would not be admissible into evidence at a fact-finding hearing since
the petitioner is usually a parent -and thus the child can never have
the advice and assistance of a parent who does not have a conflict of
interest. This treatment is comparable to those statements given to the
designated lead agency before fact finding.


The decision to waive one's constitutional right to be silent has enor-
mous consequences, which is why the law requires. that the decision be
"knowing, voluntary, and intelligent." See Miranda v.  Arizona 384 U.S.

436 (1966). Because children are fundamentally different from adults,
different safeguards are required in order for a child to make .a know-
ing, voluntary, and intelligent decision about a Miranda waiver.

The importance of additional Miranda protections for adolescents is
well-grounded in science. It is firmly established that brain develop-
ment continues into adulthood, and in recent years, the scientific
community has come to a resounding consensus that the prefrontal cortex
of the brain which largely governs decision-making, and judgment gener-
ally does not mature until well after the teenage years.* In fact, the
research demonstrates that the brain undergoes a "rewiring" process that
is not complete until approximately 25 years of age.** As a result,
youth are not yet able to consider the longterm consequences of their
actions or to resist environmental pressures as well as adults. The
ability to consider the consequences of one's actions and vulnerability
to environmental pressure are precisely the kinds of issues at play in a
custodial interrogation setting.*** Adolescents especially struggle to
process information and make sound decisions in stressful situations,
such as during interrogation.**** Additionally, research shows that
adolescents especially those in the justice system, who have high rates
of intellectual disability - often do not have the cognitive skills
necessary to understand the words or concepts in the Miranda warnings.

The consensus that adolescents' decision-making capabilities are not
fully developed and that, for this reason, young people require unique
legal protections has been recognized and embraced by the United States
Supreme Court. Children are, in the Court's words, "generally less
mature and responsible than adults;" "they often lack the experience,
perspective, and judgment to recognize and avoid choices that could be
detrimental to them"; and "they are more vulnerable or susceptible to
outside pressures than adults." J.D.B.V.North Carolina, 131 S.Ct.  2394,
2397 (2011) (internal quotations omitted). In addition, the Supreme
Court has recognized that children "have limited understandings of the
criminal justice system and the roles of the institutional actors within
it" Graham v. Florida, 560 U.S. 48, 78 (2010). Addressing the specific
context of police interrogation, the Supreme Court has observed that
events that "would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens."  Haley v. Ohio, 332 U.S. 596,
599(1948). Finally, it has noted that "no matter how sophisticated, a
juvenile subject of police interrogation cannot be compared to an adult
subject" J.D.B., 131 S.Ct. at 2403 (internal quotations omitted).

In fact, leading professional organizations with expertise about chil-
dren agree that attorney consultation is needed during interrogation
because of children's developmental limitations. The American Psycholog-
ical Association, for example, "recommends that particularly vulnerable
suspect populations, including youth, persons with developmental disa-
bilities, and persons with mental illness, be provided special and
professional protection during interrogations such as being accompanied
and advised by an attorney or professional advocate."****** The American
Academy on Child and Adolescent Psychiatry similarly believes that youth
should have an attorney present during questioning by police and that
"when interviewing juvenile suspects, polite should use terms and
concepts appropriate to the individual's developmental level. Any writ-
ten material should also be geared to the person's grade level and
cognitive capacity. in general, it is not sufficient to simply read or
recite information to a juvenile."****** Unfortunately, the presence of
a parent or responsible adult does not adequately ensure that a child
makes a knowing, voluntary and intelligent decision with respect to his
or her Miranda rights.

Parents often have conflicting interests and often misunderstand the
proceedings. Because parents may teach their children to respect and
cooperate with law enforcement, they may find it difficult to advise a
child in custody not to cooperate. Similarly, parents teach their chil-
dren to tell the truth; but often a refusal to speak - even when the
child believes himself to be "innocent"- is in the youth's legal inter-
ests.  Parents often find it hard to believe that their child could
possibly do whatever the child is accused of and therefore urge the
child to speak, not realizing that doing so may well undermine the
child's legal interests. Furthermore, when children are arrested, it
often occurs in the context of intra-familial disputes, discord, or
violence. Resulting conflicts of interest force parents to choose
between, on the one hand, giving the child in custody the best advice
and, on the other, looking out for the best interests of the other fami-
ly member involved, which is often the parent him/herself. All of these
issues are compounded when, as is often the case, the parent has been
summoned to the police station in the middle of the night, is feeling
humiliated, resentful, or even angry with the child, and is unable to
must er the kind of dispassionate and reflective thought process neces-
sary to best advise the child. Finally, often the parent or responsible
adult him/herself doesn't understand the meaning and nature of the
rights the youth is being asked to waive.  Social science research
confirms that the existing parental notification process to protect the
rights of youth is inadequate. Research has found that. when parents are
present during interrogation, they almost always either do not help
their children make a decision or actually encourage their children to
waive their rights.******* Having a child rely exclusively on the advice
of an adult who may have conflicting interests and who likely does not
him/herself understand the meaning and nature of the right at stake and
the potential consequences of waiving that right undermines the purpose
of Family Court Act § 305 2 and Criminal Procedure Law §§ 140.20(6),
140.27(5) and 140.40(5).

Legal counsel would offer expert, objective advice to young people about
their Constitutional right to remain silent and their ability to waive
this right and speak to the police. Only with the benefit of such a
conflict-free consultation can children make any waiver of this bedrock
right knowingly,' voluntarily, and intelligently, in keeping with
requirements of the state and federal Constitutions. For this reason,
youth under 18 years of age facing custodial interrogation must be
required to consult with legal counsel to assist in their understanding
of their rights and the consequences of waiving those rights prior to
waiving their rights under Miranda.

 
LEGISLATIVE HISTORY:

2023-2024A.1963/Joyner Referred to Ways and Means 8.1099/Bailey Referred
to Children and Families

2021-2021: A.5891C/Joyner - Passed Assembly 8.28000/Bailey - Referred to
Senate Finance
2019-2020: A.6982B/Joyner - Referred to Children and Families Committee
S. 4980C/Bailey - Referred to Children and Families Committee

 
FISCAL IMPLICATIONS:

Although the provision of counsel for consultation at interrogation will
inevitably impose a cost to the state and local jurisdictions, this bill
will also provide an important cost-saving benefit. Under current law,
juvenile defense attorneys and criminal defense attorneys often spend
significant amounts of time litigating the legality of their clients'
interrogation by law enforcement in what are known as Huntley hearings.
These hearings can require several lengthy court appearances, consuming
significant resources of defense attorneys, prosecutors, law enforcement
witnesses, and judges. If this bill becomes law, it will eliminate the
need for a Huntley hearing in the vast majority of cases, significantly
reducing the strain on the many agencies and individuals involved.

 
LOCAL FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATEE:

This act shall take effect April 1, 2025.

* Linda B. Chamberlain, The Amazing Teen Brain: What Every Child Advo-
cate Needs to Know, 28 A.B.A. CHILD. L. PRAC. No. 2 at 17-18 (April
2009). ** M. Arain et al., Maturation of the Adolescent Brain, 9 NEUROP-
SY-CHIATR.DIS.TREAT.449-461(2013),available at
httpsJ/www.ncblnlm.nih.gov/pmc/articles/ PMC3621648/, citing L. Gavin et
al., Sexual and Reproductive Health of persons aged 10-24 years United
States, 2002-2007, 58(6) MMWR SURVEILL. SUMM. 1-58 (2009). *** See Gold-
stein et al., Waving Good-bye to Waiver: A Developmental Argument
Against Youths' Waiver of Miranda Rights, Legislation and Public Policy,
vol. 21 (2018); Elizabeth Cauffman & Laurence Steinberg, Emerging Find-
ings from Research on Adolescent Development and Juvenile Justice, 7
Victims and Offenders 428, 433 (2012); LaurencSteinberg,Adolescent
Development and Juvenile Justice, 5 Ann.  Re .Clinical Psycho!. 459,
65-71 (2009); Laurence. Steinberg, The Science of Adolescent Brain
Development and Its Implication for Adolescent Rights and Responsibil-
ities, in Human Rights and Adolescence 59, 64 (Jacqueline Bhabha. ed.,
2014); Dustin Albert & Laurence Steinberg, Judgment and Decision-Making
in Adolescence, 21 J. Res. Adolescence 211(2011); Linda Van Leijenhorst
et al, Adoles ce nt Risky Decision-Making: Neurocognitive Development of
Reward and Control Regions, 51 Neuroimage 345; 353-54 (2010). Sarah-
Jayne Blakemore & Trevor W. Robbins, Decision-Making in the Adoleicent
Brain, 15 Nature Neuroscience 1184, 1186 (2012). **** See Goldstein et
al., supra. ***** Resolution on Interrogations of Criminal Suspects, Am.
Psychol.Ass'n (2014),
http://www.apa.org/about/policy/interrogations.aspx.Interviewing and
Interrogating Juvenile Suspects,Am.Acad.
Child&AdolescentPsychiatry(Mar.7, 2013), https://wwvv.aacap.org/
aacapipolicy_statements/2013/ Intervievving_and_Interrogating Juvenile-
Suspects. aspx. ******* Jodi L. Viljoen et al., Legal Decisions of
Preadolescent and Adolescent Defendants: Predictors of Confessions,
Pleas, .Communication with. At torneys, and Appeals, 29 Law & Hum.
Behay. 253, 261 (2005). Jennifer L Woolard et al., Examining Adoles-
cents' and their Parents' Conceptual & Practical Knowledge of Police
Interrogation: A Family Dyad Approach, 37 J.  Youth & Adolescence 685,
690-94 (2008).