|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. Top of Page
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