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Article 722 - NY Criminal Procedure Law

• NY Laws ›
• CPL ›
• Part 3 ›
• Title U ›
• Article 722

* S 722.00 Probation case plans.
  1.  All  juvenile offenders and adolescent offenders shall be notified
  of the availability of services through the local probation  department.
  Such  services  shall include the ability of the probation department to
  conduct  a  risk  and  needs  assessment,  utilizing  a  validated  risk
  assessment  tool, in order to help determine suitable and individualized
  programming  and  referrals.  Participation  in  such  risk  and   needs
  assessment  shall  be  voluntary and the adolescent offender or juvenile
  offender may be accompanied by counsel during any such assessment. Based
  upon the assessment findings, the probation department shall  refer  the
  adolescent  offender  or  juvenile offender to available and appropriate
  services.
    2. Nothing shall preclude the probation department and the  adolescent
  offender  or  juvenile  offender  from entering into a voluntary service
  plan  which  may  include  alcohol,  substance  use  and  mental  health
  treatment  and  services. To the extent practicable, such services shall
  continue through the pendency of the action and shall  further  continue
  where such action is removed in accordance with this article.
    3.  When  preparing  a  pre-sentence  investigation report of any such
  adolescent offender or juvenile offender, the probation department shall
  incorporate a summary of any assessment findings, referrals and progress
  with respect to mitigating risk and addressing any identified needs.
    4. The probation service shall not transmit or  otherwise  communicate
  to  the  district  attorney  or the youth part any statement made by the
  juvenile or adolescent offender to a  probation  officer.  However,  the
  probation  service may make a recommendation regarding the completion of
  his or her case plan to the youth part and provide such  information  as
  it shall deem relevant.
    5.  No  statement  made  to the probation service may be admitted into
  evidence at a fact-finding hearing at any time prior to a conviction.
    * NB Effective October 1, 2018; see ch. 59/2017 Pt. WWW § 106 sb b for
  further contingencies for 10/1/2019

* S 722.10 Youth part of the superior court established.
   1.  The  chief  administrator  of  the  courts  is  hereby directed to
  establish, in a superior court in each county of the state,  a  part  of
  the  court  to  be known as the youth part of the superior court for the
  county in which such court presides. Judges presiding in the youth  part
  shall  be  family court judges, as described in article six, section one
  of the constitution. To aid in their work,  such  judges  shall  receive
  training  in  specialized areas, including, but not limited to, juvenile
  justice,  adolescent  development,  custody  and  care  of  youths   and
  effective treatment methods for reducing unlawful conduct by youths, and
  shall  be authorized to make appropriate determinations within the power
  of such superior court with respect to the cases of youths  assigned  to
  such  part.  The  youth  part  shall  have exclusive jurisdiction in all
  proceedings in relation to juvenile offenders and adolescent  offenders,
  except  as provided in this article or article seven hundred twenty-five
  of this chapter.
    2. The chief  administrator  of  the  courts  shall  also  direct  the
  presiding justice of the appellate division, in each judicial department
  of the state, to designate judges authorized by law to exercise criminal
  jurisdiction  to  serve  as  accessible  magistrates, for the purpose of
  acting  in  place  of  the  youth  part  for  certain  first  appearance
  proceedings  involving youths, as provided by law. When designating such
  magistrates, the presiding justice shall ensure  that  all  areas  of  a
  county  are  within  a reasonable distance of a designated magistrate. A
  judge authorized to preside as such a  magistrate  shall  have  received
  training  in  specialized areas, including, but not limited to, juvenile
  justice,  adolescent  development,  custody  and  care  of  youths   and
  effective treatment methods for reducing unlawful conduct by youths.
    * NB Effective October 1, 2018; see ch. 59/2017 Pt. WWW § 106 sb b for
  further contingencies for 10/1/2019

* S 722.20 Proceedings upon felony complaint; juvenile offender.
    1.  When  a  juvenile  offender  is arraigned before a youth part, the
  provisions of this section shall apply. If the  youth  part  is  not  in
  session,  the  defendant  shall  be  brought  before the most accessible
  magistrate designated by the appellate division of the supreme court  to
  act  as  a  youth part for the purpose of making a determination whether
  such juvenile shall be detained. If  the  defendant  is  ordered  to  be
  detained,  he  or  she  shall  be brought before the next session of the
  youth part. If the defendant is not detained, he or she shall be ordered
  to appear at the next session of the youth part.
    2. If the defendant waives a hearing upon the  felony  complaint,  the
  court  must order that the defendant be held for the action of the grand
  jury with respect to the charge  or  charges  contained  in  the  felony
  complaint.
    3.  If  there be a hearing, then at the conclusion of the hearing, the
  youth part court must dispose of the felony complaint as follows:
    (a) If there  is  reasonable  cause  to  believe  that  the  defendant
  committed  a  crime  for  which  a  person  under  the age of sixteen is
  criminally responsible, the court must order that the defendant be  held
  for the action of a grand jury; or
    (b)  If  there  is  not reasonable cause to believe that the defendant
  committed a crime for which  a  person  under  the  age  of  sixteen  is
  criminally responsible but there is reasonable cause to believe that the
  defendant  is  a  "juvenile delinquent" as defined in subdivision one of
  section 301.2 of the family court act, the court must specify the act or
  acts it found reasonable cause to believe the defendant did  and  direct
  that  the  action  be removed to the family court in accordance with the
  provisions of article seven hundred twenty-five of this title; or
    (c) If there is not reasonable cause to  believe  that  the  defendant
  committed  any criminal act, the court must dismiss the felony complaint
  and discharge the defendant from custody if he is in custody, or  if  he
  is at liberty on bail, it must exonerate the bail.
    4.  Notwithstanding  the  provisions  of subdivisions two and three of
  this section, the court shall, at the request of the district  attorney,
  order  removal  of  an  action against a juvenile offender to the family
  court pursuant to the provisions of article seven hundred twenty-five of
  this  title  if,  upon  consideration  of  the  criteria  specified   in
  subdivision two of section 722.22 of this article, it is determined that
  to  do  so  would  be  in  the interests of justice. Where, however, the
  felony complaint charges the 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,
  a  determination  that such action be removed to the family 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.
    5.  Notwithstanding  the provisions of subdivision two, three, or four
  of this section, if a currently undetermined felony complaint against  a
  juvenile offender is pending, and the defendant has not waived a hearing
  pursuant  to  subdivision  two of this section and a hearing pursuant to
  subdivision three of this section has not commenced, the  defendant  may
  move  to  remove  the  action to family court pursuant to 722.22 of this
  article. The procedural rules of subdivisions one  and  two  of  section
  210.45  of  this  chapter  are  applicable  to a motion pursuant to this
  subdivision. Upon such motion, the court shall proceed and determine the
  motion as provided in section 722.22 of this article; provided, however,
  that  the  exception  provisions  of paragraph (b) of subdivision one of
  section 722.22 of this  article  shall  not  apply  when  there  is  not
  reasonable  cause to believe that the juvenile offender committed one or
  more of the crimes enumerated therein, and in such event the  provisions
  of paragraph (a) thereof shall apply.
    6.  (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  where  such
  consent  is  required.  The reasons shall be stated in detail and not in
  conclusory terms.
    (c) For the purpose of making a determination pursuant to  subdivision
  four  or  five  of  this  section, the court may make such inquiry as it
  deems necessary. 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.
    (d)   Where  a  motion  for  removal  by  the  defendant  pursuant  to
  subdivision five of this section has  been  denied,  no  further  motion
  pursuant  to  this section or section 722.22 of this article may be made
  by the juvenile offender with respect to the same offense or offenses.
    (e) Except as provided by paragraph  (f)  of  this  subdivision,  this
  section shall not be construed to limit the powers of the grand jury.
    (f)  Where  a  motion by the defendant pursuant to subdivision five of
  this section has been granted, there shall  be  no  further  proceedings
  against  the  juvenile  offender in any local or superior criminal court
  including the youth part of  the  superior  court  for  the  offense  or
  offenses which were the subject of the removal order.
    * NB Effective October 1, 2018; see ch. 59/2017 Pt. WWW § 106 sb b for
  further contingencies for 10/1/2019

 * S 722.21 Proceedings upon felony complaint; adolescent offender.
   1.  When  an adolescent offender is arraigned before a youth part, the
  provisions of this section shall apply. If the  youth  part  is  not  in
  session,  the  defendant  shall  be  brought  before the most accessible
  magistrate designated by the appellate division of the supreme court  to
  act  as  a  youth part for the purpose of making a determination whether
  such adolescent offender shall be detained. If the defendant is  ordered
  to  be  detained,  he or she shall be brought before the next session of
  the youth part. If the defendant is not detained, he  or  she  shall  be
  ordered to appear at the next session of the youth part.
    2.  If  the  defendant waives a hearing upon the felony complaint, the
  court must order that the defendant be held for the action of the  grand
  jury  with  respect  to  the  charge  or charges contained in the felony
  complaint.
    3. If there be a hearing, then at the conclusion of the  hearing,  the
  youth part court must dispose of the felony complaint as follows:
    (a)  If  there  is  reasonable  cause  to  believe  that the defendant
  committed a felony, the court must order that the defendant be held  for
  the action of a grand jury; or
    (b)  If  there  is  not reasonable cause to believe that the defendant
  committed a felony but there is reasonable cause  to  believe  that  the
  defendant  is  a  "juvenile delinquent" as defined in subdivision one of
  section 301.2 of the family court act, the court must specify the act or
  acts it found reasonable cause to believe the defendant did  and  direct
  that  the  action  be transferred to the family court in accordance with
  the provisions of article  seven  hundred  twenty-five  of  this  title,
  provided,  however,  notwithstanding any other provision of law, section
  308.1 of the  family  court  act  shall  apply  to  actions  transferred
  pursuant  to  this  subdivision and such actions shall not be considered
  removals subject to subdivision thirteen of such section 308.1; or
    (c) If there is not reasonable cause to  believe  that  the  defendant
  committed  any criminal act, the court must dismiss the felony complaint
  and discharge the defendant from custody if he is in custody, or  if  he
  is at liberty on bail, it must exonerate the bail.
    4.  Notwithstanding  the  provisions  of subdivisions two and three of
  this section, where the defendant is charged with a felony, other than a
  class A felony defined outside 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, except as provided in paragraph (c) of
  subdivision two of section 722.23 of this article, the court shall, upon
  notice from the district attorney that he or she will not file a  motion
  to  prevent  removal  pursuant  to section 722.23 of this article, order
  transfer of an action against an adolescent offender to the family court
  pursuant to the provisions of article seven hundred twenty-five of  this
  title,  provided,  however,  notwithstanding any other provision of law,
  section 308.1 of the family court act shall apply to actions transferred
  pursuant to this subdivision and such actions shall  not  be  considered
  removals subject to subdivision thirteen of such section 308.1.
    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
  specified  in  subdivision  two of section 722.22 of this article, it is
  determined that to do so would be in the interests  of  justice.  Where,
  however,  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  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,  a  determination  that such action be
  removed to the family 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.
    6. (a) If the court orders removal  of  the  action  to  family  court
  pursuant  to  subdivision  five  of  this section, 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 where such
  consent is required. The reasons shall be stated in detail  and  not  in
  conclusory terms.
    (c)  For the purpose of making a determination pursuant to subdivision
  five the court may make such inquiry as it deems necessary. 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.
    (d)  Except  as  provided  by paragraph (e), this section shall not be
  construed to limit the powers of the grand jury.
    (e) Where an action against a defendant has been removed to the family
  court pursuant to this section, there shall be  no  further  proceedings
  against  the adolescent offender in any local or superior criminal court
  including the youth part of  the  superior  court  for  the  offense  or
  offenses which were the subject of the removal order.
    * NB Effective October 1, 2018; see ch. 59/2017 Pt. WWW § 106 sb b for
  further contingencies for 10/1/2019

* S 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.
    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.
    * NB Effective October 1, 2018; see ch. 59/2017 Pt. WWW § 106 sb b for
  further contingencies for 10/1/2019

* S 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, 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
  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
  defendant  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 of the penal law, or a violent felony
  defined in section 70.02 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 appearance.
    (b)  Upon  such  appearance,  the  court  shall  review the accusatory
  instrument and any other relevant facts for  the  purpose  of  making  a
  determination  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 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 significant physical injury to a person other
  than a participant in the offense; or
    (ii)  the  defendant  displayed  a  firearm,  shotgun, rifle or deadly
  weapon as defined in the penal law in furtherance of such offense; 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
  determination 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,
  voluntarily 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.
    * NB Effective October 1, 2018; see ch. 59/2017 Pt. WWW § 106 sb b for
  further contingencies for 10/1/2019

* S 722.24 Applicability  of  chapter  to  actions and matters involving
             juvenile offenders or adolescent offenders.
  Except where inconsistent with this article, all  provisions  of  this
  chapter  shall  apply  to  all criminal actions and proceedings, and all
  appeals  and  post-judgment  motions  relating  or   attached   thereto,
  involving a juvenile offender or adolescent offender.
    * NB Effective October 1, 2018; see ch. 59/2017 Pt. WWW § 106 sb b for
  further contingencies for 10/1/2019

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