§ 722.22 Motion to remove juvenile offender to family court.

1. After a motion by a juvenile offender, pursuant to subdivision five
of section 722.20 of this article, or after arraignment of a juvenile
offender upon an indictment, the court may, on motion of any party or on
its own motion:

(a) except as otherwise provided by paragraph (b) of this subdivision,
order removal of the action to the family court pursuant to the
provisions of article seven hundred twenty-five of this title, if, after
consideration of the factors set forth in subdivision two of this
section, the court determines that to do so would be in the interests of
justice; or

* (b) with the consent of the district attorney, order removal of an
action involving an indictment charging a juvenile 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
subdivision 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, to the family court pursuant to the provisions of article
seven hundred twenty-five of this title if the court finds one or more
of the following factors: (i) mitigating circumstances that bear
directly upon the manner in which the crime was committed; (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 the proof of the crime, and, after consideration of the factors set
forth in subdivision two of this section, the court determined that
removal of the action to the family court would be in the interests of
justice.

* NB Effective until September 1, 2024

* (b) with the consent of the district attorney, order removal of an
action involving an indictment charging a juvenile 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 paragraph (a) of subdivision one,
paragraph (a) of subdivision two and paragraph (a) of subdivision three
of section 130.35 of the penal law; rape in the first degree as formerly
defined in subdivision one of section 130.35 of the penal law; a crime
formerly defined in subdivision 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, to the family court pursuant to the
provisions of article seven hundred twenty-five of this title if the
court finds one or more of the following factors: (i) mitigating
circumstances that bear directly upon the manner in which the crime was
committed; (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 the proof of the crime, and, after
consideration of the factors set forth in subdivision two of this
section, the court determined that removal of the action to the family
court would be in the interests of justice.

* NB Effective September 1, 2024

2. In making its determination pursuant to subdivision one of this
section the court shall, to the extent applicable, examine individually
and collectively, the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at
trial;

(d) the history, character and condition of the defendant;

(e) the purpose and effect of imposing upon the defendant a sentence
authorized for the offense;

(f) the impact of a removal of the case to the family court on the
safety or welfare of the community;

(g) the impact of a removal of the case to the family court upon the
confidence of the public in the criminal justice system;

(h) where the court deems it appropriate, the attitude of the
complainant or victim with respect to the motion; and

(i) any other relevant fact indicating that a judgment of conviction
in the criminal court would serve no useful purpose.

3. The procedure for bringing on a motion pursuant to subdivision one
of this section, shall accord with the procedure prescribed in
subdivisions one and two of section 210.45 of this chapter. After all
papers of both parties have been filed and after all documentary
evidence, if any, has been submitted, the court must consider the same
for the purpose of determining whether the motion is determinable on the
motion papers submitted and, if not, may make such inquiry as it deems
necessary for the purpose of making a determination.

4. For the purpose of making a determination pursuant to this section,
any evidence which is not legally privileged may be introduced. If the
defendant testifies, his testimony may not be introduced against him in
any future proceeding, except to impeach his testimony at such future
proceeding as inconsistent prior testimony.

5. a. If the court orders removal of the action to family court, it
shall state on the record the factor or factors upon which its
determination is based, and, the court shall give its reasons for
removal in detail and not in conclusory terms.

b. The district attorney shall state upon the record the reasons for
his consent to removal of the action to the family court. The reasons
shall be stated in detail and not in conclusory terms.