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Part 6 - Article 3 - Family Court

POST-DISPOSITIONAL PROCEDURES

Section Description
360.1 Jurisdiction and supervision of respondent placed on probation.
360.2 Petition of violation.
360.3 Hearing on violation.
365.1 Appeal; authorized as of right.
365.2 Appeal by permission.
365.3 Notice of appeal.
  S 360.1. Jurisdiction  and  supervision  of  respondent  placed  on
  probation. 1. A respondent who is placed on probation shall remain under
  the legal jurisdiction of the court pending expiration or termination of
  the period of the order of probation.
    2. The probation service shall supervise  the  respondent  during  the
  period of such legal jurisdiction.
    3.  If  at  any  time  during  the  period  of probation the court has
  reasonable cause to believe that the respondent has violated a condition
  of the probation order, it may issue a search order. A search  order  is
  an  order  directed  to  a probation officer authorizing such officer to
  search the person of the respondent or any personal  property  which  he
  owns or which is in his possession.
    4.  In  executing a search order pursuant to this section, a probation
  officer may be assisted by a police officer.

  S 360.2. Petition of violation. 1. If at any time during the period of
  an order of probation or conditional discharge the probation service has
  reasonable cause to believe that the respondent has violated a condition
  thereof, it may file a petition of violation.
    2.  The  petition  must  be  verified  and subscribed by the probation
  service or  the  appropriate  presentment  agency.  Such  petition  must
  stipulate  the  condition  or  conditions  of  the  order violated and a
  reasonable description of the  time,  place  and  manner  in  which  the
  violation  occurred.  Non-hearsay allegations of the factual part of the
  petition or of any supporting depositions must establish, if true, every
  violation charged.
    3. The court must promptly take reasonable and appropriate  action  to
  cause the respondent to appear before it for the purpose of enabling the
  court  to  make  a  determination with respect to the alleged violation.
  Such action may include the issuance of a summons under section 312.1 or
  the issuance of a warrant under section 312.2.
    4. If a petition  is  filed  under  subdivision  one,  the  period  of
  probation  as prescribed by section 353.2 shall be interrupted as of the
  date of the filing of the petition.  Such  interruption  shall  continue
  until  a  final  determination  as  to the petition has been made by the
  court pursuant to a hearing held in accordance  with  section  360.3  or
  until  such time as the respondent reaches the maximum age of acceptance
  into a division for youth facility.
    5. If the court determines there was no violation of probation by  the
  respondent the period of interruption shall be credited to the period of
  probation.

  S 360.3. Hearing on violation. 1. The court may not revoke an order of
  probation  or conditional discharge unless: (a) the court has found that
  the respondent has violated a condition  of  such  order;  and  (b)  the
  respondent  has  had  an  opportunity  to  be  heard.  The respondent is
  entitled to a hearing in accordance with this section promptly  after  a
  petition of violation has been filed.
    2.  At  the  time  of  his  first appearance following the filing of a
  petition of violation the court must: (a) advise the respondent  of  the
  contents  of  the  petition  and  furnish  him  with a copy thereof; (b)
  determine whether the respondent should be released or detained pursuant
  to section 320.5; and (c) ask the respondent whether he wishes  to  make
  any  statement  with respect to the violation. If the respondent makes a
  statement, the court may accept it and base its  decision  thereon;  the
  provisions   of   subdivision  two  of  section  321.3  shall  apply  in
  determining whether a statement should be accepted. If  the  court  does
  not  accept  such  statement  or  if  the  respondent  does  not  make a
  statement, the court shall proceed with the hearing. Upon  request,  the
  court  shall  grant a reasonable adjournment to the respondent to enable
  him to prepare for the hearing.
    3. At such hearing, the court may receive any relevant, competent  and
  material  evidence.   The respondent may cross-examine witnesses and may
  present evidence on his own behalf.
    4. The respondent is entitled to counsel at all stages of a proceeding
  under this section and the court shall advise him of such right  at  the
  outset of the proceeding.
    5.  The presentment agency shall present the petition in all stages of
  this part.
    6. At the conclusion of the hearing the court may revoke, continue  or
  modify  the  order  of  probation or conditional discharge. If the court
  revokes the order, it shall order a different  disposition  pursuant  to
  section  352.2.  If  the  court  continues  the  order  of  probation or
  conditional discharge, it shall dismiss the petition of violation.

  S 365.1. Appeal;  authorized  as  of  right.  1.  An  appeal  to the
  appropriate  appellate  division  may  be  taken  as  of  right  by  the
  respondent   from  any  order  of  disposition  under  this  article  in
  accordance with article eleven.
    2. An appeal to the appropriate appellate division may be taken as  of
  right  by the presentment agency from the following orders of the family
  court:
    (a) an order dismissing a petition prior  to  the  commencement  of  a
  fact-finding hearing; or
    (b)  an order of disposition, but only upon the ground that such order
  was invalid as a matter of law; or
    (c) an order suppressing evidence entered before the  commencement  of
  the  fact-finding  hearing pursuant to section 330.2, provided that such
  presentment agency files a statement pursuant  to  subdivision  nine  of
  section 330.2.

  S 365.2. Appeal  by  permission.  An  appeal  may  be  taken  by the
  respondent, in the discretion of  the  appropriate  appellate  division,
  from any other order under this article.

  S 365.3. Notice  of  appeal. 1. An appeal shall be taken by filing a
  written notice of appeal, in duplicate, with the  clerk  of  the  family
  court in which the order was entered.
    2.  If  the  respondent is the appellant, he must also serve a copy of
  such notice of appeal upon the appropriate presentment agency.
    3. If the presentment agency is the appellant, it must serve a copy of
  such notice of appeal upon the respondent and upon the attorney who last
  appeared for him or her in the family court.
    4. Following the filing with him of the notice of appeal in duplicate,
  the clerk of the family court must endorse  upon  such  instruments  the
  filing  date  and  must  transmit  the duplicate notice of appeal to the
  clerk of the appropriate appellate division of the supreme court.

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