New York State Law

Family Court Law

Consolidated Laws of NY's FCA code

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Part 2 - Article 3 - Family Court

INITIAL APPEARANCE AND PROBABLE CAUSE HEARING

Section Description
320.1 The initial appearance; definition.
320.2 The initial appearance; timing; adjournment and appointment of counsel.
320.3 Notice of rights.
320.4 The initial appearance; procedures.
320.5 The initial appearance; release or detention.
320.6 The initial appearance; referral to the probation service.
321.1 Entry of an admission or a denial.
321.2 Admissions to part of a petition; admissions concerning other petitions.
321.3 Acceptance of an admission.
321.4 Withdrawal of an admission or denial.
322.1 Incapacitated person; examination reports.
322.2 Proceedings to determine capacity.
325.1 The probable-cause hearing; time.
325.2 The probable-cause hearing; order of proceeding.
325.3 The probable-cause hearing; determination.
  S 320.1. The initial appearance; definition. When used in this article
  "initial  appearance"  means  the  proceeding on the date the respondent
  first appears before the court after a petition has been filed  and  any
  adjournments thereof, for the purposes specified in section 320.4.

  S 320.2. The initial appearance; timing; adjournment and appointment
  of counsel. 1. If the respondent is  detained,  the  initial  appearance
  shall  be held no later than seventy-two hours after a petition is filed
  or the next day the court is in session, whichever  is  sooner.  If  the
  respondent is not detained, the initial appearance shall be held as soon
  as  practicable  and,  absent  good cause shown, within ten days after a
  petition is filed. If a warrant for the  respondent's  arrest  has  been
  issued pursuant to section 312.2 of this article due to the respondent's
  failure  to  appear  for  an  initial  appearance of which he or she had
  notice, computation of the time within which the initial appearance must
  be held shall exclude the period  extending  from  the  date  the  court
  issues  the  warrant  to the date the respondent is returned pursuant to
  the warrant or appears voluntarily; provided, however, no period of time
  may be excluded hereunder unless the  respondent's  location  cannot  be
  determined  by  the  exercise  of  due diligence or, if the respondent's
  location is known, his or her presence in court cannot  be  obtained  by
  the  exercise of due diligence. In determining whether due diligence has
  been exercised, the court  shall  consider,  among  other  factors,  the
  report  presented  to  the  court pursuant to subdivision two of section
  312.2 of this article.
    2. At the initial appearance the court must  appoint  an  attorney  to
  represent  the  respondent  pursuant  to  the  provisions of section two
  hundred forty-nine if independent legal representation is not  available
  to such respondent.
    3.  The  initial  appearance  may  be  adjourned  for  no  longer than
  seventy-two hours or until the next court day, whichever is  sooner,  to
  enable an attorney for the respondent to appear before the court.
    4.  The clerk of the court shall notify the presentment agency and any
  attorney for the respondent of the initial appearance date.

  S 320.3. Notice  of rights. At the time the respondent first appears
  before the court, the respondent and his or her parent or  other  person
  legally  responsible  for  his  or  her  care  shall  be  advised of the
  respondent's right to remain silent and  of  his  or  her  right  to  be
  represented  by  counsel chosen by him or her or by an attorney assigned
  by the court. Provided, however, that in the event of the failure of the
  respondent's parent or other person legally responsible for his care  to
  appear,  after reasonable and substantial effort has been made to notify
  such parent or responsible person of the commencement of the  proceeding
  and such initial appearance, the court shall appoint an attorney for the
  respondent.

  S 320.4. The  initial  appearance;  procedures.    1. At the initial
  appearance the court must inform the respondent,  or  cause  him  to  be
  informed  in  its  presence,  of  the charge or charges contained in the
  petition, and the presentment agency must cause the respondent  and  his
  or her counsel to be furnished with a copy of the petition.
    2. At the initial appearance the court shall determine:
    (a) whether detention is necessary pursuant to section 320.5; and
    (b)  whether  the  case  should  be  referred to the probation service
  pursuant to section 320.6; and
    (c) if the child is detained, the date of the  probable-cause  hearing
  pursuant to section 325.1 unless such hearing has already been held; and
    (d) the date of the fact-finding hearing; and
    (e) such other issues as may be properly before it.

  S 320.5. The  initial  appearance;  release  or detention. 1. At the
  initial  appearance,  the  court  in  its  discretion  may  release  the
  respondent or direct his detention.
    2.  Rules  of  court  shall define permissible terms and conditions of
  release. The court may in its discretion  release  the  respondent  upon
  such  terms and conditions as it deems appropriate. The respondent shall
  be given a written copy of any such terms and conditions. The court  may
  modify  or  enlarge  such  terms and conditions at any time prior to the
  expiration of the respondent's release.
    3.  (a)  The  court  shall  not  direct  detention  unless   available
  alternatives  to  detention, including conditional release, would not be
  appropriate, and the court finds that unless the respondent is detained:
    (i) there is a substantial probability that he or she will not  appear
  in court on the return date; or
    (ii) there is a serious risk that he or she may before the return date
  commit an act which if committed by an adult would constitute a crime.
    (b)  Any finding directing detention pursuant to paragraph (a) of this
  subdivision made by the court shall state the facts, the level  of  risk
  the   youth  was  assessed  pursuant  to  a  detention  risk  assessment
  instrument approved by the office of children and family  services,  and
  the  reasons  for  such finding including, if a determination is made to
  place a youth in detention who was assessed at a low or medium  risk  on
  such  a risk assessment instrument, the particular reasons why detention
  was determined to be necessary.
    (c) If the court makes a finding that detention is necessary  pursuant
  to  subparagraphs (i) and (ii) of paragraph (a) of this subdivision, the
  court may  consider,  where  applicable,  as  a  condition  of  release,
  electronic  monitoring  of the respondent, if such electronic monitoring
  would  significantly  reduce  the  substantial  probability   that   the
  respondent  would not return to court on the return date, or the serious
  risk that the respondent may before the return date commit an  act  that
  if committed by an adult would constitute a crime.
    (d)  If the respondent may be a sexually exploited child as defined in
  subdivision one of section four  hundred  forty-seven-a  of  the  social
  services  law,  the  court  may  direct  the  respondent to an available
  short-term safe house as a condition of release.
    4. At the initial appearance the presentment agency may introduce  the
  respondent's previous delinquency findings entered by a family court. If
  the respondent has been fingerprinted for the current charge pursuant to
  section 306.1, the presentment agency may also introduce the fingerprint
  records  maintained  by  the  division of criminal justice services. The
  clerk of court and  the  probation  service  shall  cooperate  with  the
  presentment  agency  in making available the appropriate records. At the
  conclusion of the initial appearance such fingerprint records  shall  be
  returned  to  the presentment agency and shall not be made a part of the
  court record.
    5. Upon a finding of facts and reasons which support a detention order
  pursuant to subdivision three of this  section,  the  court  shall  also
  determine and state in any order directing detention:
    (a)  whether  the  continuation  of the respondent in the respondent's
  home would be contrary to the best interests  of  the  respondent  based
  upon, and limited to, the facts and circumstances available to the court
  at the time of the initial appearance; and
    (b)  where  appropriate and consistent with the need for protection of
  the community, whether reasonable efforts were made prior to the date of
  the court appearance that resulted in  the  detention  order  issued  in
  accordance  with  this  section  to  prevent  or  eliminate the need for
  removal of the respondent from his or her home or, if the respondent had
  been removed from his or her home prior to the initial appearance, where
  appropriate  and  consistent  with  the  need  for  protection  of   the
  community,  whether reasonable efforts were made to make it possible for
  the respondent to safely return home.

  S 320.6. The initial appearance; referral to the probation service. 1.
  If the petition alleges the commission of a designated felony act or the
  commission  of  a crime enumerated in subdivision four of section 308.1,
  the probation service shall make a recommendation to the  court  at  the
  initial  appearance  regarding  the  suitability  of  adjusting the case
  pursuant to section 308.1.
    2. At the initial appearance the court may, with the  consent  of  the
  victim  or complainant and the respondent, refer a case to the probation
  service for adjustment services. In the  case  of  a  designated  felony
  petition the consent of the presentment agency shall also be required to
  refer a case to probation services for adjustment services.
    3.  If  the  court  refers a case to the probation service pursuant to
  this section and the probation service adjusts the  case,  the  petition
  shall be dismissed.
    4.  If  such case is referred to the probation service, the provisions
  of section 308.1, except subdivision thirteen thereof, shall apply.

  S 321.1. Entry  of  an  admission  or  a  denial.  1. At the initial
  appearance the respondent shall admit or deny each charge  contained  in
  the  petition  unless  the  petition  is  dismissed  or  the  proceeding
  otherwise terminated.
    2. If the respondent refuses to admit or  deny  each  such  charge  or
  remains  mute,  the  court  must  enter a denial in his behalf as to any
  charge neither admitted nor denied.

  S 321.2. Admissions to part of a petition; admissions concerning other
  petitions.
    1.  A  respondent may as a matter of right enter an admission to those
  allegations in the petition which are determinable at  the  fact-finding
  hearing.
    2.  Where  the  petition charges but one crime, a respondent may, with
  the consent of the court and the appropriate presentment  agency,  enter
  an  admission  of  a lesser included crime as defined in section 1.20 of
  the criminal procedure law.
    3. Where the petition charges more than one crime in separate counts a
  respondent may, with the  consent  of  the  court  and  the  appropriate
  presentment  agency,  enter  an  admission  to part of the petition or a
  lesser included crime upon the condition that such admission constitutes
  a complete disposition of these allegations in the  petition  which  are
  determinable at the fact-finding hearing.

  S 321.3. Acceptance of an admission. 1. The court shall not consent to
  the  entry  of  an admission unless it has advised the respondent of his
  right to a fact-finding hearing. The court shall also ascertain  through
  allocution  of  the  respondent  and  his parent or other person legally
  responsible for his care, if present, that (a) he committed the  act  or
  acts to which he is entering an admission, (b) he is voluntarily waiving
  his right to a fact-finding hearing, and (c) he is aware of the possible
  specific  dispositional orders. The provisions of this subdivision shall
  not be waived.
    2. Upon consenting to the entry  of  an  admission  pursuant  to  this
  section, the court must state the reasons for granting such consent.
    3.  Upon  the entry of an admission pursuant to this section the court
  shall enter an appropriate order pursuant to section 345.1 and  schedule
  a dispositional hearing pursuant to section 350.1.

  S 321.4. Withdrawal of an admission or denial. 1. A respondent who has
  entered  a  denial  of a petition may as a matter of right withdraw such
  denial at any time before the conclusion of the fact-finding hearing and
  enter an admission to the entire petition.
    2. At any time prior to the entry of a finding under section 352.1 the
  court in its discretion may permit  a  respondent  who  has  entered  an
  admission  to the entire petition or to part of the petition to withdraw
  such admission, and in such event the entire petition as it  existed  at
  the time of the admission shall be restored.

  S 322.1. Incapacitated  person;  examination  reports.  1.  At  any
  proceeding under this article, the court must issue an  order  that  the
  respondent be examined as provided herein when it is of the opinion that
  the  respondent  may  be  an  incapacitated  person. Notwithstanding the
  provisions of this or any other law,  the  court  may  direct  that  the
  examination  be  conducted on an outpatient basis when the respondent is
  not in custody at the time the court issues an order of examination. The
  court shall order that two qualified psychiatric examiners as defined in
  subdivision seven of  section  730.10  of  the  criminal  procedure  law
  examine  the  respondent  to  determine  if he is mentally ill, mentally
  retarded or developmentally disabled.
    2. If an order of examination has been issued pursuant to  subdivision
  one,  the  proceedings  shall be adjourned until the examination reports
  have been filed with the court. Every such report shall be filed  within
  ten  days  after  entry  of  such  order.    Upon  a  showing of special
  circumstances and a  finding  that  a  longer  period  is  necessary  to
  complete  the  examination and report, the court may extend the time for
  filing the examination report.
    3. Each report shall state the examiner's opinion as  to  whether  the
  respondent  is  or is not an incapacitated person, the nature and extent
  of his examination and, if he finds the respondent is  an  incapacitated
  person,  his  diagnosis  and  prognosis  and a detailed statement of the
  reasons for his opinion by making particular reference to those  aspects
  of  the  proceedings wherein the respondent lacks capacity to understand
  or to assist in his own defense. The chief administrator of  the  courts
  shall prescribe the form for the examination report.

  S 322.2. Proceedings  to determine capacity.  1. Upon the receipt of
  examination reports ordered under section 322.1, the court shall conduct
  a hearing to  determine  whether  the  respondent  is  an  incapacitated
  person.  The respondent, the counsel for the respondent, the presentment
  agency and the commissioner of mental  health  or  the  commissioner  of
  mental retardation and developmental disabilities, as appropriate, shall
  be notified of such hearing at least five days prior to the date thereof
  and afforded an opportunity to be heard.
    2.  If  the  court  finds  that the respondent is not an incapacitated
  person, it shall continue the delinquency proceedings.
    3. If the court finds that the respondent is an incapacitated  person,
  the  court  shall  schedule  a  hearing  to  determine  whether there is
  probable cause to believe that the respondent  committed  a  crime.  The
  order of proceeding at such hearing shall conform to section 325.2.
    4. If the court finds that there is probable cause to believe that the
  respondent committed a misdemeanor, the respondent shall be committed to
  the  custody of the appropriate commissioner for a reasonable period not
  to exceed ninety days. The court  shall  dismiss  the  petition  on  the
  issuance of the order of commitment.
    5.    (a)  If  the court finds that there is probable cause to believe
  that the respondent committed a felony, it shall  order  the  respondent
  committed  to  the  custody  of the commissioner of mental health or the
  commissioner of mental retardation and developmental disabilities for an
  initial period not to exceed one year from the date of such order.  Such
  period may be extended annually upon further application to the court by
  the commissioner having custody or his or her designee. Such application
  must  be  made  not more than sixty days prior to the expiration of such
  period on forms that have been prescribed by the chief administrator  of
  the  courts.  At that time, the commissioner must give written notice of
  the  application  to  the  respondent,  the  counsel  representing   the
  respondent  and the mental hygiene legal service if the respondent is at
  a residential facility. Upon receipt of such application, the court must
  conduct a hearing to  determine  the  issue  of  capacity.  If,  at  the
  conclusion  of  a  hearing  conducted  pursuant to this subdivision, the
  court finds that the respondent is no longer incapacitated,  he  or  she
  shall  be  returned to the family court for further proceedings pursuant
  to this article. If the court is satisfied that the respondent continues
  to be incapacitated, the court shall authorize continued custody of  the
  respondent by the commissioner for a period not to exceed one year. Such
  extensions  shall  not  continue  beyond  a  reasonable  period  of time
  necessary to determine whether the respondent will attain  the  capacity
  to proceed to a fact finding hearing in the foreseeable future but in no
  event shall continue beyond the respondent's eighteenth birthday.
    (b)  If  a  respondent  is in the custody of the commissioner upon the
  respondent's eighteenth birthday,  the  commissioner  shall  notify  the
  clerk  of  the court that the respondent was in his custody on such date
  and the court shall dismiss the petition.
    (c) If the court finds that there is probable cause  to  believe  that
  the  respondent  has  committed a designated felony act, the court shall
  require that treatment be provided in a residential facility within  the
  appropriate office of the department of mental hygiene.
    (d)  The  commissioner  shall  review  the condition of the respondent
  within forty-five days after the respondent is committed to the  custody
  of  the commissioner. He or she shall make a second review within ninety
  days  after  the  respondent  is  committed  to  his  or  her   custody.
  Thereafter, he or she shall review the condition of the respondent every
  ninety  days.   The respondent and the counsel for the respondent, shall
  be notified of any such review and afforded an opportunity to be  heard.
  The  commissioner  having  custody shall apply to the court for an order
  dismissing the petition whenever he or she determines that  there  is  a
  substantial   probability  that  the  respondent  will  continue  to  be
  incapacitated   for   the  foreseeable  future.  At  the  time  of  such
  application the commissioner must give written notice of the application
  to the respondent, the presentment agency and the mental  hygiene  legal
  service  if the respondent is at a residential facility. Upon receipt of
  such application, the court may on its own motion conduct a  hearing  to
  determine  whether  there is substantial probability that the respondent
  will continue to be incapacitated for the  foreseeable  future,  and  it
  must conduct such hearing if a demand therefor is made by the respondent
  or  the  mental hygiene legal service within ten days from the date that
  notice of the application was given to them. The respondent may apply to
  the court for an order of dismissal on the same ground.
    6. Any order pursuant to this section dismissing a petition shall  not
  preclude  an application for voluntary or involuntary care and treatment
  in a facility of the appropriate office  of  the  department  of  mental
  hygiene pursuant to the provisions of the mental hygiene law. Unless the
  respondent  is  admitted  pursuant  to  such  an application he shall be
  released.
    7. If the commissioner having  custody  of  a  child  committed  to  a
  residential  facility determines at any time that such child may be more
  appropriately treated in a non-residential facility, he may petition the
  family court for a hearing. If the court  finds  after  a  hearing  that
  treatment  in  a  non-residential facility would be more appropriate for
  such child, the court shall modify its order of commitment to  authorize
  transfer  of  such  child to a non-residential facility. Application for
  such a hearing may be made by the respondent.
    8. If the commissioner having custody of the child determines  at  any
  time  that  such child is not an incapacitated person, he shall petition
  the court for a hearing. The respondent and the presentment agency shall
  be notified of such hearing within twenty-four hours of  the  scheduling
  of such hearing and afforded an opportunity to be heard. Application for
  such  a  hearing may be made by the respondent. If the court finds after
  the hearing that the child is  no  longer  incapacitated,  he  shall  be
  returned  to  the  family court for further proceedings pursuant to this
  article.
    9. Time spent by the respondent in the custody of a commissioner of an
  office within the department of mental hygiene or in a local hospital or
  detention facility pending transfer to the custody of  the  commissioner
  after a finding of incapacity, shall be credited and applied towards the
  period  of  placement specified in a dispositional order on the original
  petition.

  S 325.1. The  probable-cause  hearing;  time.  1.  At  the  initial
  appearance, if the respondent denies a charge contained in the  petition
  and  the  court determines that he shall be detained for more than three
  days  pending  a  fact-finding  hearing,  the  court  shall  schedule  a
  probable-cause  hearing  to  determine  the  issues specified in section
  325.3.
    2. Such  probable-cause  hearing  shall  be  held  within  three  days
  following  the  initial  appearance  or  within  four days following the
  filing of a petition, whichever occurs sooner.
    3. For good cause shown, the court may adjourn the hearing for no more
  than an additional three court days.
    4. The respondent may waive the probable-cause hearing, but  the  fact
  that the respondent is not ready for a fact-finding hearing shall not be
  deemed such a waiver.
    5.  Where  the  petition  consists  of an order of removal pursuant to
  article seven hundred twenty-five of the criminal procedure law,  unless
  the  removal was pursuant to subdivision three of section 725.05 of such
  law and the  respondent  was  not  afforded  a  probable  cause  hearing
  pursuant to subdivision three of section 180.75 of such law for a reason
  other  than  his  waiver  thereof pursuant to subdivision two of section
  180.75 of such law, the petition shall be deemed  to  be  based  upon  a
  determination  that probable cause exists to believe the respondent is a
  juvenile delinquent and the respondent shall  not  be  entitled  to  any
  further  inquiry  on the subject of whether probable cause exists. After
  the filing of any  such  petition  the  court  must,  however,  exercise
  independent,  de novo discretion with respect to release or detention as
  set forth in section 320.5.

  S 325.2. The probable-cause hearing; order of proceeding. 1. The order
  of  a  probable-cause  hearing  held  pursuant to section 325.1 or 322.2
  shall be as follows:
    (a) the presentment agency must call and examine witnesses  and  offer
  evidence in support of the charge;
    (b)  the  respondent  may,  as  a  matter of right, testify in his own
  behalf; if the  respondent  so  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;
    (c) upon request of the respondent, the court shall, except  for  good
  cause  shown,  permit  him  to  call  and  examine other witnesses or to
  produce other evidence in his behalf.
    2. Each witness, whether called by the presentment agency  or  by  the
  respondent, must, unless he would be authorized to give unsworn evidence
  at  a  fact-finding hearing, testify under oath. Each witness, including
  any respondent testifying in his own behalf, may be cross-examined.
    3. Only  non-hearsay  evidence  shall  be  admissible  to  demonstrate
  reasonable  cause  to  believe  that  the  respondent committed a crime;
  except that reports of  experts  and  technicians  in  professional  and
  scientific  fields  and  sworn  statements  of the kinds admissible at a
  hearing upon a felony complaint in a criminal  court  may  be  admitted,
  unless  the  court  determines, upon application of the respondent, that
  such hearsay evidence is, under  the  particular  circumstances  of  the
  case,  not  sufficiently reliable, in which case the court shall require
  that the witness testify in person and be subject to cross-examination.
    4. Such hearing should be completed at one session. In the interest of
  justice, however, it  may  be  adjourned  by  the  court,  but  no  such
  adjournment may be for more than one court day.

  S 325.3. The  probable-cause  hearing;  determination.  1.  At  the
  conclusion of a probable-cause hearing held pursuant  to  section  325.1
  the  court  shall determine in accordance with the evidentiary standards
  applicable to a hearing on a felony complaint in a criminal court:
    (a) whether it is reasonable to believe that a  crime  was  committed;
  and
    (b)  whether it is reasonable to believe that the respondent committed
  such crime.
    2. The court shall state on the record the section or sections of  the
  penal  law or other law which it is reasonable to believe the respondent
  violated.
    3. If the court finds that  there  is  reasonable  cause  pursuant  to
  subdivision  one, it shall further determine whether continued detention
  is necessary pursuant to section 320.5.
    4. If the court does not  find  that  there  is  reasonable  cause  to
  believe that a crime was committed and that the respondent committed it,
  the  case shall be adjourned and the respondent released from detention.
  If the court or the presentment agency  cannot  hold  a  probable  cause
  hearing within the limits of subdivision two of section 325.1, the court
  may  dismiss  the  petition  without  prejudice  or for good cause shown
  adjourn the hearing and  release  the  respondent  pursuant  to  section
  320.5.

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