|Notice of rights; general provision.
|Notice and right to be heard.
|Evidence in fact-finding hearings; required quantum.
|Evidence in dispositional hearings; required quantum of proof.
|Sequence of hearings.
|Time of fact-finding hearing.
|Adjournment of fact-finding hearing.
|Adjournment after fact-finding hearing or during dispositional hearing.
|Probation reports; probation investigation and diagnostic assessment.
S 741. Notice of rights; general provision. (a) At the initial appearance of a respondent in a proceeding and at the commencement of any hearing under this article, 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 the respondent's right to be represented by counsel chosen by him or her or his or her parent or other person legally responsible for his or her care, or by an attorney assigned by the court under part four of article two. Provided, however, that in the event of the failure of the respondent's parent or other person legally responsible for his or her 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 and shall, unless inappropriate also appoint a guardian ad litem for such respondent, and in such event, shall inform the respondent of such rights in the presence of such attorney and any guardian ad litem. (b) The general public may be excluded from any hearing under this article and only such persons and the representatives of authorized agencies admitted thereto as have a direct interest in the case. (c) At any hearing under this article, the court shall not be prevented from proceeding by the absence of the respondent's parent or other person responsible for his or her care if reasonable and substantial effort has been made to notify such parent or responsible person of the occurrence of the hearing and if the respondent and his or her attorney are present. The court shall, unless inappropriate, also appoint a guardian ad litem who shall be present at such hearing and any subsequent hearing.le. S 741-A. Notice and right to be heard. The foster parent caring for the child or any pre-adoptive parent or relative providing care for the respondent shall be provided with notice of any permanency hearing held pursuant to this article by the social services official. Such foster parent, pre-adoptive parent or relative shall have the right to be heard at any such hearing; provided, however, no such foster parent, pre-adoptive parent or relative shall be construed to be a party to the hearing solely on the basis of such notice and right to be heard. The failure of the foster parent, pre-adoptive parent, or relative caring for the child to appear at a permanency hearing shall constitute a waiver of the right to be heard and such failure to appear shall not cause a delay of the permanency hearing nor shall such failure to appear be a ground for the invalidation of any order issued by the court pursuant to this section. S 742. Diversion attempts. (a) Whenever a petition is filed pursuant to this article, the lead agency designated pursuant to section seven hundred thirty-five of this article shall file a written report with the court indicating any previous actions it has taken with respect to the case. (b) At the initial appearance of the respondent, the court shall review any termination of diversion services pursuant to such section, and the documentation of diligent attempts to provide appropriate services and determine whether such efforts or services provided are sufficient and may, subject to the provisions of section seven hundred forty-eight of this article, order that additional diversion attempts be undertaken by the designated lead agency. The court may order the youth and the parent or other person legally responsible for the youth to participate in diversion services. If the designated lead agency thereafter determines that the case has been successfully resolved, it shall so notify the court, and the court shall dismiss the petition. S 744. Evidence in fact-finding hearings; required quantum. (a) Only evidence that is competent, material and relevant may be admitted in a fact-finding hearing. (b) Any determination at the conclusion of a fact-finding hearing that a respondent did an act or acts must be based on proof beyond a reasonable doubt. For this purpose, an uncorroborated confession made out of court by a respondent is not sufficient. S 745. Evidence in dispositional hearings; required quantum of proof. (a) Only evidence that is material and relevant may be admitted during a dispositional hearing. (b) An adjudication at the conclusion of a dispositional hearing must be based on a preponderance of the evidence. S 746. Sequence of hearings. Upon completion of the fact-finding hearing the dispositional hearing may commence immediately after the required findings are made. S 747. Time of fact-finding hearing. A fact-finding hearing shall commence not more than three days after the filing of a petition under this article if the respondent is in detention. S 748. Adjournment of fact-finding hearing. (a) If the respondent is in detention, the court may adjourn a fact-finding hearing (i) on its own motion or on motion of the petitioner for good cause shown for not more than three days; (ii) on motion on behalf of the respondent or by his parent or other person legally responsible for his care for good cause shown, for a reasonable period of time. (b) Successive motions to adjourn a fact-finding hearing may be granted only under special circumstances. (c) The court shall state on the record the reason for any adjournment of the fact-finding hearing. S 749. Adjournment after fact-finding hearing or during dispositional hearing. (a) (i) Upon or after a fact-finding hearing, the court may, upon its own motion or upon a motion of a party to the proceeding, order that the proceeding be "adjourned in contemplation of dismissal". An adjournment in contemplation of dismissal is an adjournment of the proceeding, for a period not to exceed six months with a view to ultimate dismissal of the petition in furtherance of justice. Upon issuing such an order, upon such permissible terms and conditions as the rules of court shall define, the court must release the individual. (ii) The court may, as a condition of an adjournment in contemplation of dismissal order: (A) in cases where the record indicates that the consumption of alcohol may have been a contributing factor, require the respondent to attend and complete an alcohol awareness program established pursuant to section 19.25 of the mental hygiene law; or (B) in cases where the record indicates that cyberbullying or sexting was the basis of the petition, require an eligible person to complete an education reform program in accordance with section four hundred fifty-eight-l of the social services law. (iii) Upon application of the petitioner, or upon the court's own motion, made at any time during the duration of the order, the court may restore the matter to the calendar. If the proceeding is not so restored, the petition is at the expiration of the order, deemed to have been dismissed by the court in furtherance of justice. (b) On its own motion, the court may adjourn the proceedings on conclusion of a fact-finding hearing or during a dispositional hearing to enable it to make inquiry into the surroundings, conditions and capacities of the respondent. An adjournment on the court's motion may not be for a period of more than ten days if the respondent is detained, in which case not more than a total of two such adjournments may be granted in the absence of special circumstances. If the respondent is not detained, an adjournment may be for a reasonable time, but the total number of adjourned days may not exceed two months. (c) On motion on behalf of the respondent or by his parent or other person legally responsible for his care, the court may adjourn the proceedings on conclusion of a fact finding hearing or during a dispositional hearing for a reasonable period of time. S 750. Probation reports; probation investigation and diagnostic assessment. 1. All reports or memoranda prepared or obtained by the probation service shall be deemed confidential information furnished to the court and shall be subject to disclosure solely in accordance with this section or as otherwise provided for by law. Except as provided in section seven hundred thirty-five of this article, such reports or memoranda shall not be furnished to the court prior to the completion of the fact-finding hearing and the making of the required findings. 2. After the completion of the fact-finding hearing and the making of the required findings and prior to the dispositional hearing, the reports or memoranda prepared or obtained by the probation service and furnished to the court shall be made available by the court for examination and copying by the child's counsel or by the respondent if he or she is not represented by counsel. All diagnostic assessments and probation investigation reports shall be submitted to the court at least five court days prior to the commencement of the dispositional hearing. In its discretion the court may except from disclosure a part or parts of the reports or memoranda which are not relevant to a proper disposition, or sources of information which have been obtained on a promise of confidentiality, or any other portion thereof, disclosure of which would not be in the interest of justice. In all cases where a part or parts of the reports or memoranda are not disclosed, the court shall state for the record that a part or parts of the reports or memoranda have been excepted and the reasons for its action. The action of the court excepting information from disclosure shall be subject to review on any appeal from the order of disposition. If such reports or memoranda are made available to the respondent or his or her counsel, they shall also be made available to the counsel presenting the petition pursuant to section two hundred fifty-four and, in the court's discretion, to any other attorney representing the petitioner. Top of Page
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