New York State Law
Family Court Law
Consolidated Laws of NY's FCA code
Part 4 - Article 3 - Family Court
THE FACT-FINDING HEARING
| Section | Description |
|---|---|
| 340.1 | Time of fact-finding hearing. |
| 340.2 | Presiding judge. |
| 341.1 | Exclusion of general public. |
| 341.2 | Presence of respondent and his or her parent. |
| 342.1 | The fact-finding hearing; order of procedure. |
| 342.2 | Evidence in fact-finding hearings; required quantum. |
| 343.1 | Rules of evidence; testimony given by children. |
| 343.2 | Rules of evidence; corroboration of accomplice testimony. |
| 343.3 | Rules of evidence; identification by means of previous recognition in absence of present identification. |
| 343.4 | Rules of evidence; identification by means of previous recognition, in addition to present identification. |
| 343.5 | Rules of evidence; impeachment of own witness by proof of prior contradictory statement. |
| 344.1 | Rules of evidence; proof of previous conviction or delinquency finding. |
| 344.2 | Rules of evidence; statements of respondent; corroboration. |
| 344.3 | Rules of evidence; psychiatric testimony in certain cases. |
| 344.4 | Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases. |
| 345.1 | Orders. |
| 346.1 | Fact-finding hearing; removal. |
| 347.1 | Required testing of the respondent in certain proceedings. |
S 340.1. Time of fact-finding hearing. 1. If the respondent is in detention and the highest count in the petition charges the commission of a class A, B, or C felony, the fact-finding hearing shall commence not more than fourteen days after the conclusion of the initial appearance except as provided in subdivision four. If the respondent is in detention and the highest count in such petition is less than a class C felony the fact-finding hearing shall commence no more than three days after the conclusion of the initial appearance except as provided in subdivision four. 2. If the respondent is not in detention the fact-finding hearing shall commence not more than sixty days after the conclusion of the initial appearance except as provided in subdivision four. 3. For the purposes of this section, in any case where a proceeding has been removed to the family court pursuant to an order issued pursuant to section 725.05 of the criminal procedure law, the date specified in such order for the defendant's appearance in the family court shall constitute the date of the initial appearance. 4. The court may adjourn a fact-finding hearing: (a) on its own motion or on motion of the presentment agency for good cause shown for not more than three days if the respondent is in detention and not more than thirty days if the respondent is not in detention; provided, however, that if there is probable cause to believe the respondent committed a homicide or a crime which resulted in a person being incapacitated from attending court, the court may adjourn the hearing for a reasonable length of time; or (b) on motion by the respondent for good cause shown for not more than thirty days; or (c) on its own motion for not more than six months if the proceeding has been adjourned in contemplation of dismissal pursuant to section 315.3. 5. The court shall state on the record the reason for any adjournment of the fact-finding hearing. 6. Successive motions to adjourn a fact-finding hearing shall not be granted in the absence of a showing, on the record, of special circumstances; such circumstances shall not include calendar congestion or the status of the court's docket or backlog. 7. For purposes of this section, 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 a scheduled fact-finding hearing, computation of the time within which such hearing must take place shall exclude the period extending from the date of issuance of the bench warrant for respondent's arrest because of his or her failure to appear to the date the respondent subsequently appears in court pursuant to a bench 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. S 340.2. Presiding judge. 1. The judge who presides at the commencement of the fact-finding hearing shall continue to preside until such hearing is concluded and an order entered pursuant to section 345.1 unless a mistrial is declared. 2. The judge who presides at the fact-finding hearing or accepts an admission pursuant to section 321.3 shall preside at any other subsequent hearing in the proceeding, including but not limited to the dispositional hearing. 3. Notwithstanding the provisions of subdivision two, the rules of the family court shall provide for the assignment of the proceeding to another judge of the court when the appropriate judge cannot preside: (a) by reason of illness, disability, vacation or no longer being a judge of the court in that county; or (b) by reason of removal from the proceeding due to bias, prejudice or similar grounds; or (c) because it is not practicable for the judge to preside. 4. The provisions of this section shall not be waived. S 341.1. Exclusion of general public. The general public may be excluded from any proceeding under this article and only such persons and the representatives of authorized agencies as have a direct interest in the case shall be admitted thereto. S 341.2. Presence of respondent and his or her parent. 1. The respondent and his or her counsel shall be personally present at any hearing under this article and at the initial appearance. 2. If a respondent conducts himself or herself in so disorderly and disruptive a manner that the hearing cannot be carried on with the respondent in the courtroom, the court may order a recess for the purpose of enabling the respondent's parent or other person responsible for his or her care and the respondent's counsel to exercise full efforts to assist the respondent to conduct himself or herself so as to permit the proceedings to resume in an orderly manner. If such efforts fail, the respondent may be removed from the courtroom if, after he or she is warned by the court that he or she will be removed, he or she continues such disorderly and disruptive conduct. Such time shall not extend beyond the minimum period necessary to restore order. 3. The respondent's parent or other person responsible for his or her care shall be present at any hearing under this article and at the initial appearance. However, the court shall not be prevented from proceeding by the absence of such parent or person if reasonable and substantial effort has been made to notify such parent or other person and if the respondent and his or her counsel are present. S 342.1. The fact-finding hearing; order of procedure. The order of the fact-finding hearing shall be as follows: 1. The court shall permit the parties to deliver opening addresses. If both parties deliver opening addresses, the presentment agency's address shall be delivered first. 2. The presentment agency must offer evidence in support of the petition. 3. The respondent may offer evidence in his defense. 4. The presentment agency may offer evidence in rebuttal of the respondent's evidence, and the respondent may then offer evidence in rebuttal of the presentment agency's evidence. The court may in its discretion permit the parties to offer further rebuttal or surrebuttal evidence in this pattern. In the interest of justice, the court may permit either party to offer evidence upon rebuttal which is not technically of a rebuttal nature but more properly a part of the offering party's original case. 5. At the conclusion of the evidence, the respondent shall have the right to deliver a summation. 6. The presentment agency shall then have the right to deliver a summation. 7. The court must then consider the case and enter a finding. S 342.2. Evidence in fact-finding hearings; required quantum. 1. Only evidence that is competent, material and relevant may be admitted at a fact-finding hearing. 2. Any determination at the conclusion of a fact-finding hearing that a respondent committed an act or acts which if committed by an adult would be a crime must be based on proof beyond a reasonable doubt. 3. An order of removal pursuant to a direction authorized by sections 220.10, 310.85 and 330.25 of the criminal procedure law constitutes proof beyond a reasonable doubt and a determination that the respondent did the act or acts specified therein in accordance with section 725.05 of the criminal procedure law. S 343.1. Rules of evidence; testimony given by children. 1. Any person may be a witness in a delinquency proceeding unless the court finds that, by reason of infancy or mental disease or defect, he does not possess sufficient intelligence or capacity to justify reception of his evidence. 2. Every witness more than nine years old may testify only under oath unless the court is satisfied that such witness cannot, as a result of mental disease or defect, understand the nature of an oath. A witness less than nine years old may not testify under oath unless the court is satisfied that he or she understands the nature of an oath. If under either of the above provisions, a witness is deemed to be ineligible to testify under oath, the witness may nevertheless be permitted to give unsworn evidence if the court is satisfied that the witness possesses sufficient intelligence and capacity to justify the reception thereof. 3. A respondent may not be found to be delinquent solely upon the unsworn evidence given pursuant to subdivision two. * 4. A child witness may give testimony in accordance with the provisions of article sixty-five of the criminal procedure law, provided such child is declared vulnerable in accordance with subdivision one of section 65.10 of such law. A child witness means a person fourteen years old or less who is or will be called to testify in any proceeding concerning an act defined in article one hundred thirty of the penal law or section 255.25, 255.26 or 255.27 of such law, which act would constitute a crime if committed by an adult. The provisions of this subdivision shall expire and be deemed repealed on the same date as article sixty-five of the criminal procedure law expires and is deemed repealed pursuant to section five of chapter five hundred five of the laws of nineteen hundred eighty-five, as from time to time, amended. * NB Repealed September 1, 2019 S 343.2. Rules of evidence; corroboration of accomplice testimony. 1. A respondent may not be found to be delinquent upon the testimony of an accomplice unsupported by corroborative evidence tending to connect the respondent with the commission of the crime or crimes charged in the petition. 2. An "accomplice" means a witness in a juvenile delinquency proceeding who, according to evidence adduced in such proceeding, may reasonably be considered to have participated in: (a) the crime charged; or (b) a crime based on the same or some of the same facts or conduct which constitutes the crime charged in the petition. 3. A witness who is an accomplice as defined in subdivision two is no less such because a proceeding, conviction or finding of delinquency against him would be barred or precluded by some defense or exemption such as infancy, immunity or previous prosecution amounting to a collateral impediment to such proceeding, conviction or finding, not affecting the conclusion that such witness engaged in the conduct constituting the crime with the mental state required for the commission thereof. * S 343.3. Rules of evidence; identification by means of previous recognition in absence of present identification. 1. In any juvenile delinquency proceeding in which the respondent's commission of a crime is in issue, testimony as provided in subdivision two may be given by a witness when: (a) such witness testifies that: (i) he observed the person claimed by the presentment agency to be the respondent either at the time and place of the commission of the crime or upon some other occasion relevant to the case; and (ii) on a subsequent occasion he observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person whom he recognized as the same person whom he had observed on the first incriminating occasion; and (iii) he is unable at the proceeding to state, on the basis of present recollection, whether or not the respondent is the person in question; and (b) it is established that the respondent is in fact the person whom the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his recognition on such occasion. 2. Under circumstances prescribed in subdivision one, such witness may testify at the proceeding that the person whom he observed and recognized on the second occasion is the same person whom he observed on the first or incriminating occasion. Such testimony, together with the evidence that the respondent is in fact the person whom the witness observed and recognized on the second occasion, constitutes evidence in chief. * NB Effective until July 1, 2017 * S 343.3. Rules of evidence; identification by means of previous recognition in absence of present identification. 1. In any juvenile delinquency proceeding in which the respondent's commission of a crime is in issue, testimony as provided in subdivision two may be given by a witness when: (a) such witness testifies that: (i) he or she observed the person claimed by the presentment agency to be the respondent either at the time and place of the commission of the crime or upon some other occasion relevant to the case; and (ii) on a subsequent occasion he or she observed, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, a person, or, where the observation is made pursuant to a blind or blinded procedure as defined herein, a pictorial, photographic, electronic, filmed or video recorded reproduction of a person whom he or she recognized as the same person whom he or she had observed on the first incriminating occasion; and (iii) he or she is unable at the proceeding to state, on the basis of present recollection, whether or not the respondent is the person in question; and (b) it is established that the respondent is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction the witness observed and recognized on the second occasion. Such fact may be established by testimony of another person or persons to whom the witness promptly declared his or her recognition on such occasion and by such pictorial, photographic, electronic, filmed or video recorded reproduction. (c) For purposes of this section, a "blind or blinded procedure" is one in which the witness identifies a person in an array of pictorial, photographic, electronic, filmed or video recorded reproductions under circumstances where, at the time the identification is made, the public servant administering such procedure: (i) does not know which person in the array is the suspect, or (ii) does not know where the suspect is in the array viewed by the witness. The failure of a public servant to follow such a procedure shall be assessed solely for purposes of this article and shall result in the preclusion of testimony regarding the identification procedure as evidence in chief, but shall not constitute a legal basis to suppress evidence made pursuant to subdivision six of section 710.20 of the criminal procedure law. This article neither limits not expands subdivision six of section 710.20 of the criminal procedure law. 2. Under circumstances prescribed in subdivision one, such witness may testify at the proceeding that the person whom he or she observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion is the same person whom he or she observed on the first or incriminating occasion. Such testimony, together with the evidence that the respondent is in fact the person whom the witness observed and recognized or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed and recognized on the second occasion, constitutes evidence in chief. * NB Effective July 1, 2017 * S 343.4. Rules of evidence; identification by means of previous recognition, in addition to present identification. In any juvenile delinquency proceeding in which the respondent's commission of a crime is in issue, a witness who testifies that: (a) he observed the person claimed by the presentment agency to be the respondent either at the time and place of the commission of the crime or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the respondent is the person in question, and (c) on a subsequent occasion he observed the respondent, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him as the same person whom he had observed on the first or incriminating occasion, may, in addition to making an identification of the respondent at the delinquency proceeding on the basis of present recollection as the person whom he observed on the first or incriminating occasion, also describe his previous recognition of the respondent and testify that the person whom he observed on such second occasion is the same person whom he had observed on the first or incriminating occasion. Such testimony constitutes evidence in chief. * NB Effective until July 1, 2017 * S 343.4. Rules of evidence; identification by means of previous recognition, in addition to present identification. In any juvenile delinquency proceeding in which the respondent's commission of a crime is in issue, a witness who testifies that: (a) he or she observed the person claimed by the presentment agency to be the respondent either at the time and place of the commission of the crime or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the respondent is the person in question, and (c) on a subsequent occasion he or she observed the respondent, or, where the observation is made pursuant to a blind or blinded procedure, a pictorial, photographic, electronic, filmed or video recorded reproduction of the respondent under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him or her or the pictorial, photographic, electronic, filmed or video recorded reproduction of him or her as the same person whom he or she had observed on the first or incriminating occasion, may, in addition to making an identification of the respondent at the delinquency proceeding on the basis of present recollection as the person whom he or she observed on the first or incriminating occasion, also describe his or her previous recognition of the respondent and testify that the person whom he or she observed or whose pictorial, photographic, electronic, filmed or video recorded reproduction he or she observed on such second occasion is the same person whom he or she had observed on the first or incriminating occasion. Such testimony and such pictorial, photographic, electronic, filmed or video recorded reproduction constitutes evidence in chief. For purposes of this section, a "blind or blinded procedure" shall be as defined in paragraph (c) of subdivision one of section 343.3 of this part. * NB Effective July 1, 2017 S 343.5. Rules of evidence; impeachment of own witness by proof of prior contradictory statement. 1. When, upon examination by the party who called him, a witness in a delinquency proceeding gives testimony upon a material issue of the case which tends to disprove the position of such party, such party may introduce evidence that such witness has previously made either a written statement signed by him or an oral statement under oath contradictory to such testimony. 2. Evidence concerning a prior contradictory statement introduced pursuant to subdivision one may be received only for the purpose of impeaching the credibility of the witness with respect to his testimony upon the subject, and does not constitute evidence in chief. 3. When a witness has made a prior signed or sworn statement contradictory to his testimony in a delinquency proceeding upon a material issue of the case, but his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the court. S 344.1. Rules of evidence; proof of previous conviction or delinquency finding. 1. If in the course of a juvenile delinquency proceeding, any witness, including a respondent, is properly asked whether he was previously convicted of a specified offense and answers in the negative or in an equivocal manner, the party adverse to the one who called him may independently prove such conviction. If in response to proper inquiry whether he has ever been convicted of any offense the witness answers in the negative or in an equivocal manner, the adverse party may independently prove any previous conviction. 2. If a respondent in a juvenile delinquency proceeding, through the testimony of a witness other than respondent called by him, offers evidence of his good character, the presentment agency may independently prove any previous finding of delinquency of the respondent for a crime the commission of which would tend to negate any character trait or quality attributed to the respondent in such witness' testimony. S 344.2. Rules of evidence; statements of respondent; corroboration. 1. Evidence of a written or oral confession, admission, or other statement made by a respondent with respect to his participation or lack of participation in the crime charged, may not be received in evidence against him in a juvenile delinquency proceeding if such statement was involuntarily made. 2. A confession, admission or other statement is "involuntarily made" by a respondent when it is obtained from him: (a) by any person by the use or threatened use of physical force upon the respondent or another person, or by means of any other improper conduct or undue pressure which impaired the respondent's physical or mental condition to the extent of undermining his ability to make a choice whether or not to make a statement; or (b) by a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him: (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the respondent might falsely incriminate himself; or (ii) in violation of such rights as the respondent may derive from the constitution of this state or of the United States; or (iii) in violation of section 305.2. 3. A child may not be found to be delinquent based on the commission of any crime solely upon evidence of a confession or admission made by him without additional proof that the crime charged has been committed. S 344.3. Rules of evidence; psychiatric testimony in certain cases. When, in connection with a defense of mental disease or defect, a psychiatrist or licensed psychologist who has examined the respondent testifies at the fact-finding hearing concerning the respondent's mental condition at the time of the conduct charged to constitute a crime, he must be permitted to make a statement as to the nature of the examination, the diagnosis of the mental condition of the respondent and his opinion as to the extent, if any, to which the capacity of the respondent to know or appreciate the nature and consequences of such conduct, or its wrongfulness, was impaired as a result of mental disease or defect at that time. The psychiatrist must be permitted to make any explanation reasonably serving to clarify his diagnosis and opinion, and may be cross-examined as to any matter bearing on his competency or credibility or the validity of his diagnosis or opinion. S 344.4. Rules of evidence; admissibility of evidence of victim's sexual conduct in sex offense cases. Evidence of a victim's sexual conduct shall not be admissible in a juvenile delinquency proceeding for a crime or an attempt to commit a crime defined in article one hundred thirty of the penal law unless such evidence: 1. proves or tends to prove specific instances of the victim's prior sexual conduct with the accused; or 2. proves or tends to prove that the victim has been convicted of an offense under section 230.00 of the penal law within three years prior to the sex offense which is the subject of the juvenile delinquency proceeding; or 3. rebuts evidence introduced by the presentment agency of the victim's failure to engage in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact during a given period of time; or 4. rebuts evidence introduced by the presentment agency which proves or tends to prove that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; or 5. is determined by the court after an offer of proof by the accused, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination, to be relevant and admissible in the interests of justice. S 345.1. Orders. 1. If the allegations of a petition or specific counts of a petition concerning the commission of a crime or crimes are established, the court shall enter an appropriate order and schedule a dispositional hearing pursuant to section 350.1. The order shall specify the count or counts of the petition upon which such order is based and the section or sections of the penal law or other law under which the act or acts so stated would constitute a crime if committed by an adult. If the respondent or respondents are found to have committed a designated felony act, the order shall so state. 2. If the allegations of a petition or specific counts of a petition under this article are not established, the court shall enter an order dismissing the petition or specific counts therein. S 346.1. Fact-finding hearing; removal. Where the proceeding was commenced by the filing of an order of removal pursuant to a direction authorized by section 220.10, 310.85 or 330.25 of the criminal procedure law, the requirements of a fact-finding hearing shall be deemed to have been satisfied upon the filing of the order and no further fact-finding hearing need be held; provided, however, that where any specification required by subdivision five of section 725.05 of the criminal procedure law is not clear, the court may examine such records or hold such hearing as it deems necessary to clarify said specification. S 347.1. Required testing of the respondent in certain proceedings. 1. (a) In any proceeding where the respondent is found pursuant to section 345.1 or 346.1 of this article, to have committed a felony offense enumerated in any section of article one hundred thirty of the penal law, or any subdivision of section 130.20 of such law, for which an act of "sexual intercourse", "oral sexual conduct" or "anal sexual conduct", as those terms are defined in section 130.00 of the penal law, is required as an essential element for the commission thereof, the court must, upon a request of the victim, order that the respondent submit to human immunodeficiency (HIV) related testing. The testing is to be conducted by a state, county, or local public health officer designated by the order. Test results, which shall not be disclosed to the court, shall be communicated to the respondent and the victim named in the order in accordance with the provisions of section twenty-seven hundred eighty-five-a of the public health law. (b) For the purposes of this section, the term "victim" means the person with whom the respondent engaged in an act of "sexual intercourse", "oral sexual conduct" or "anal sexual conduct", as those terms are defined in section 130.00 of the penal law, where such conduct with such victim was the basis for the court's finding that the respondent committed acts constituting one or more of the offenses specified in paragraph (a) of this subdivision. 2. Any request made by the victim pursuant to this section must be in writing, filed with the court and provided by the court to the defendant and his or her counsel. The request must be filed with the court prior to or within ten days after the filing of an order in accordance with section 345.1 or 346.1 of this article, provided that, for good cause shown, the court may permit such request to be filed at any time prior to the entry of an order of disposition. 3. Any requests, related papers and orders made or filed pursuant to this section, together with any papers or proceedings related thereto, shall be sealed by the court and not made available for any purpose, except as may be necessary for the conduct of judicial proceedings directly related to the provisions of this section. All proceedings on such requests shall be held in camera. 4. The application for an order to compel a respondent to undergo an HIV related test may be made by the victim but, if the victim is an infant or incompetent person, the application may also be made by a representative as defined in section twelve hundred one of the civil practice law and rules. The application must state that (a) the applicant was the victim of the offense, enumerated in paragraph (a) of subdivision one of this section, which the court found the defendant to have committed; and (b) the applicant has been offered counseling by a public health officer and been advised of (i) the limitations on the information to be obtained through an HIV test on the proposed subject; (ii) current scientific assessments of the risk of transmission of HIV from the exposure he or she may have experienced; and (iii) the need for the applicant to undergo HIV related testing to definitively determine his or her HIV status. 5. The court shall conduct a hearing only if necessary to determine if the applicant is the victim of the offense the respondent was found to have committed. The court ordered test must be performed within fifteen days of the date on which the court ordered the test, provided however that whenever the respondent is not tested within the period prescribed by the court, the court must again order that the respondent undergo an HIV related test. 6. (a) Test results shall be disclosed subject to the following limitations, which shall be specified in any order issued pursuant to this section: (i) disclosure of confidential HIV related information shall be limited to that information which is necessary to fulfill the purpose for which the order is granted; (ii) disclosure of confidential HIV related information shall be limited to the person making the application; redisclosure shall be permitted only to the victim, the victim's immediate family, guardian, physicians, attorneys, medical or mental health providers and to his or her past and future contacts to whom there was or is a reasonable risk of HIV transmission and shall not be permitted to any other person or the court. (b) Unless inconsistent with this section, the court's order shall direct compliance with and conform to the provisions of article twenty-seven-F of the public health law. Such order shall include measures to protect against disclosure to others of the identity and HIV status of the applicant and of the person tested and may include such other measures as the court deems necessary to protect confidential information. 7. Any failure to comply with the provisions of this section or section twenty-seven hundred eighty-five-a of the public health law shall not impair the validity of any order of disposition entered by the court. 8. No information obtained as a result of a consent, hearing or court order for testing issued pursuant to this section nor any information derived therefrom may be used as evidence in any criminal or civil proceeding against the respondent which relates to events that were the basis for the respondent's conviction, provided however that nothing herein shall prevent prosecution of a witness testifying in any court hearing held pursuant to this section for perjury pursuant to article two hundred ten of the penal law. Top of Page
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Article 2 | Article 3 |
Article 4 | Article 5 |
Article 5A | Article 5B |
Article 6 | Article 7 |
Article 8 | Article 9 |
Article 10 | Article 10A |
Article 10B | Article 10C |
Article 11 | Article 12
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