RAISE THE AGE – LEARN FROM THE EXPERTS - PowerPoint Presentation

RAISE THE AGE – LEARN FROM THE EXPERTS PANEL PRESENTATION BY: Hon. Thomas Breslin, NYS Supreme CourtHon. Richard Rivera, Albany County Family CourtDaniel Lynch, Albany County AttorneyPANEL MODERATOR:Adam Silverman, Asst. Counsel to the Governor PowerPoint adopted from Hon. Brenda M. Freedman, Erie County Family Court and Nicole Balsom , Esq.

Key ComponentPresumptive age of juvenile accountability is raised for 16-year-olds effective 10/1/18 and for 17-year-olds effective 10/1/19

OutlineKey Component DefinitionsPolice ContactCounselCourt ProcessingRemoval to Family CourtSentencing and DispositionSealingPINSFacilitiesEffective Dates and Flow charts

Definitions

InfancyDefinition (PL 30.00)A person is not criminally responsible for conduct if under 17 (after 10/1/18) or under 18 (after 10/1/19)A person is criminally responsible for the followingJOFelony (age 16 or older)VTL misdemeanor/traffic infractionViolationMisdemeanor if either:Accompanied by felony committed as part of same transaction, orPlea resulting in reduction/dismissal in satisfaction of felony chargeDefinitions

Juvenile DelinquentDefinition [FCA 301.2(1)]A person who committed an act that would constitute a crime, or a violation, where such violation allegedly occurred in the same transaction or occurrence as the alleged criminal act, if committed by an adult, is eitherNot criminally responsible by reason of infancy, orThe 16 or 17 year old defendant in an action removed from Youth Part to Family Court (felonies)AgeCurrently: a person over 7 and less than 16 years of age – all misdemeanors and feloniesAdditionally, commencing 10/1/18: a person over age 16 and less than age 17 – all misdemeanorsCommencing 10/1/19: a person over age 16 and less than age 18 – all misdemeanorsA 16 or 17 year old defendant in an action removed from Youth Part to Family Court - feloniesJD cases are exclusively heard in Family CourtDefinitions

Juvenile OffenderDefinition [CPL 1.20 (42)]13 year old: murder 2nd, sexually motivated felony (PL 130.91)14 or 15 year old: murder 2nd or attempt, kidnapping 1st or attempt, arson 1st or 2nd, assault 1st, manslaughter 1st, rape 1st, criminal sexual act 1st, aggravated sexual abuse 1st, burglary 1st or 2nd, robbery 1st or 2nd, weapon possession 3rd on school grounds (PL 256.03), sexually motivated felony (PL 130.91)JO law remains relatively unchangedExcept: cases will be initiated in Youth Part, subject to removal to Family CourtDefinitions

Adolescent OffenderDefinition [CPL 1.20 (44)]A person charged with a felony Committed on/after 10/1/18 when s/he was age 16, or Committed on/after 10/1/19 when s/he was age 16 or 17Defendants in Youth Part will either be AOs or JOsUpon transfer to Family Court, they become JDsDefinitions

Youthful OffenderDefinition [CPL 720.10] Prior law unchangedSubstitution of conviction of eligible youthAge 16, 17 or 18 when crime committed or JOEligible unlessClass A-I or A-II felony, armed felony, rape 1st, sexual act 1st, aggravated sexual abuseBut youth may be eligible if:Mitigating circumstances that bear directly upon manner in which the crime was committed, orDefendant was not the sole participant in the crime and defendant’s role was minor (though not so minor as to constitute a defense)Prior felony conviction and sentencePrior YO adjudication that would have been a felony; or JD that was a designated felonyBenefitsNo criminal record Special sentencing guidelines [PL 60.02]Sealing of recordDefinitions

Youth PartCreated as part of the superior court [CPL 722.10(1)]Exclusive jurisdiction over all felonies committed by youths age16 and 17 (AOs) [CPL 722.10(1)]Except where later removed to Family Court Exclusive jurisdiction over all JosExcept where later removed to Family CourtYouth Part will not hear the followingVTL misdemeanors and traffic infractions stay in local criminal courtViolations stay in local criminal courtUnless part of the same activity as the alleged crimes [CPL 100.05]Misdemeanors heard in Family CourtUnless accompanied by felony chargesDefinitions

Youth Part (Con’t)Who presides?Family Court Judges [CPL 722.10(1)]Special “Magistrates” may be appointed [CPL 722.10(2)]To handle certain first appearances of AOs and JOs when Youth Part is not in sessionShall schedule youth to appear in Youth Part’s next session Must be judges Must be within reasonable distance of all areas of county Both Family Court Judges and Magistrates presiding over the Youth Part must receive specialized training in juvenile issues [CPL 722.10(1); CPL 722.10(2)] Definitions

Youth Part (Con’t)Accusatory InstrumentFile in Youth Part of the county where the alleged act occurred [CPL 100.60]Youth Part must promptly provide a copy of the accusatory instrument to the DA either before or at arraignment [CPL 110.20]Definitions

Police Contact

Parental NotificationParents must be notified when their children are arrested [CPL 120.90(7); 140.20(6); 140.27]Police Contact

InterrogationsAge-appropriate settings, or on consent, at youth’s home [CPL 140.20(6), 140.27]With parental involvement [CPL 140.20(6), 140.27]Developmentally age-appropriate lengths of time [CPL 140.20(6), 140.27]Custodial interrogations must be video recorded if certain felonies [CPL 60.45; FCA 344.2(3)]Unless good cause shown (examples below, see statute for complete list): Equipment malfunctionQuestioning not in interview room (e.g. hospital)Spontaneous utterance not part of interrogationApplies to:Class A-1 felonies (except Controlled Substances)Predatory Sexual Assault (PL 130.95, 130.96)Class B Violent felonies in PL 125, 130 (per PL 70.02)Tape to include giving and waiver, if any, of Miranda rightsLack of video-tape is a factor, but not determinative of suppressionPolice Contact

IdentificationsAddition of Blinded Identification ProceduresBlind or Blinded Procedure:Witness identifies a person in an array of photos, films, electronic, or video recordings where administrator does not know either which person in the array is the suspect or where in the array suspect is [CPL 60.25; FCA 343.3]Written regulations and protocols to be promulgated [Exec Law 837, 840]Failure to follow the blinded procedure precludes third party testimony, but is not basis to suppress evidence pursuant to CPL 710.20(6)710.30 Notice must include intention to offer blinded procedure identification evidencePolice Contact

Identifications (Con’t)Addition of Blinded Identification ProceduresIdentification by means of previous recognition in addition to present recollection [FCA 343.4; CPL 60.30]Witness may testify that the person s/he identified at a constitutionally compatible out of court process, or by a blinded procedure, including by pictorial, photographic, electronic, filmed or video recorded reproduction, is the same person s/he observed at the crime or related incriminating eventSuch testimony, combined with evidence that Defendant is the person the witness identified in the out of court process, may be evidence in chief Defendant must receive 710.30 NoticePolice Contact

Identifications (Con’t)Addition of Blinded Identification ProceduresIdentification by means of prior recognition in absence of present identification [FCA 343.3; CPL 60.25]Witness testifies s/he observed suspect at crime/event related to case, andWitness identified suspect at blinded procedure or other constitutionally compatible process, andThird party may testify about another witness’s out of court identification (hearsay exception) whenThird party witness was present when initial witness made prompt declaration of recognition at out of court process, andInitial witness lacks present recollectionIt is established that Defendant is the suspect identified by the initial witness at the out of court procedurePolice Contact

Court Processing

MisdemeanorsFamily Court will hear all misdemeanor cases, including those committed by 16 and 17 year-oldsException for VTL misdemeanorsRespondents are JDsFCA applies, including procedures for adjustment and confidential recordsDispositional options are the same as for JDsCourt Processing

FeloniesFelony cases will start in Youth PartThese are AOsSome will be removed to Family Court and then become JDsYouth Part will handle the rest through Trial and SentencingCourt Processing

Felonies (Con’t)AOs and JOs may voluntarily participate in assessments and services while case is pending in the Youth PartJOs and AOs to be notified of availability of probation servicesPSI/PDI shall incorporate any voluntary plan, assessments, progress [CPL 722]Presumption against holding AOs not charged with Class A felonies (except controlled substances) or Violent crimes in custody [CPL 722.23(1)(f)]Court Processing

Felonies (Con’t)Felony HearingsSame process as current JO lawExcept: now the law includes AOs and the hearings occur in Youth Part [CPL 722.20 (JO); CPL 722.21 (AO)]If Defendant waives felony hearing, s/he to be held for Grand Jury If Hearing held, Youth Part judge determinesJO ProceedingIf reasonable cause to believe youth committed act that a person under age 16 would be criminally responsible  hold over for Grand JuryIf not, but there is reasonable cause to believe defendant is a JD  remove to Family CourtCourt must state the act(s) it found reasonable cause to believe defendant didIf no reasonable cause to believe youth committed any criminal act  dismiss felony complaintAO ProceedingIf reasonable cause to believe defendant committed a felony  hold over for Grand JuryIf not, but there is reasonable cause to believe defendant is a JD  transfer to Family CourtCourt must state the act(s) it found reasonable cause to believe defendant didIf no reasonable cause to believe youth committed any criminal act  dismiss felony complaintCourt Processing

Felonies (Con’t)Grand JuryGrand Jury may request removal to Family CourtIf youth held in custody pending Grand Jury, and Grand Jury fails to dispose within 30 days, youth must be released unlessDefendant requested, orDA shows good cause why youth should not be released, including compelling reason that precluded Grand Jury from taking action, or in the interests of justice that failed to do soCourt Processing

ViolationsViolations will be heard in adult criminal/local courtsExcept: when a crime and violation arise out of the same transaction or occurrence, both offenses will be returnable before the Family Court or Youth Part having jurisdiction over the crime [FCA 302.1(3)]Unaccompanied violations may not be removed to Family CourtAdjudication in Family Court: Family Court may enter Dispositional Order for 16 and 17 year olds adjudicated as JDs [FCA 352.2(4)]Dispositional options: conditional discharge or probationCourt Processing

Family CourtExisting JD laws will apply to youth whose cases are removed to Family CourtAdjustmentProsecutor transitions from District Attorney to Presentment Agency (County Attorney)Court may impose conditions of release or detentionDispositional options same as JD proceedingsNo permanent criminal record Court Processing

Sentencing and Disposition

Family CourtRespondents have a right to a dispositional hearingJDs will be granted an Order of DispositionDispositional options: ACD, conditional discharge, probation, or placementSentencing/Disposition

Family Court (Con’t)Victim Impact Statement [FCA 350.3; 350.4]Victims shall have the right to make a statement to be considered in disposition in all JD cases (separate from PDI)May be oral or writtenTimeframeVictim to notify court 10+ days prior to dispositional hearingCourt to send Respondent notice 7+ days prior to hearingVictim shall not be made aware of dispositionSentencing/Disposition

Family Court (Con’t)Placements: age limitations increasedDesignated felonies [FCA 353.5]Act committed before age 16 – may extend up to age 21 without consentAct committed after turned 16 – may extend up to age 23 without consentAll other crimes [FCA 355.5]Act committed before age 16 – may extend up to age 18 without consent, or age 21 with consentIf act committed after turned 16 – may extend up to age 21 without consent, or age 23 with consentNo change to dispositions other than placements, including durationsSentencing/Disposition

Youth PartAdolescent Offender [PL 60.10-a]Court shall grant Defendant a sentence authorized for a person who committed the offense at age 18 or olderCourt shall consider Defendant’s age in exercising discretion at sentencingSentencing/Disposition

Youth Part (Con’t)Juvenile Offender [PL 60.10]Law is unchangedCourt shall sentence JO to imprisonment pursuant to PL 70.05 or sentence JO upon a YO finding, pursuant to PL 60.02Sentencing/Disposition

Youth Part (Con’t)Youthful Offender [PL 60.02]AO or JO may be eligible for YO statusSentencing/Disposition

Facilities

FacilitiesNo 16- or 17-year-old will be sentenced to or detained in a facility with adults [Exec Law 502(3)(4)]JDsYouth whose cases are heard in Family Court will be detained or placed in OCFS-operated, OCFS-licensed, or ACS facilities (including Close to Home) (same as current JD law) [FCA 304.1]

Facilities (Con’t)AOs/JOs/YOsAOs detained pre-trial will be held in a specialized secure juvenile detention center for older youthOCFS and State Commission of Correction will certify and regulate facilityEach county must provide for adequate detention of AOs in such facility (County Law 218-a)Judges have discretion to order AOs or YOs sentenced to less than 1 year serve their sentence in a specialized juvenile detention center for older youth

Facilities (Con’t)AO FacilitiesAOs who are sentenced to state imprisonment will be placed in an AO facility [PL 70.20(4)(a), (a-1)]Will have enhanced securitySpecially trained staff to serve AOs sentenced to determinate or indeterminate sentences who are determined to need enhanced level of secure careNYS must develop/establish 1+ of these facilities [Corr Law 77]Hudson Correctional Facility will transition to AO facilityIt’ll be the only facility to house femalesNYS may create additional facilities for males if neededOCFS will manage facility; DOCCS will operate itSentenceAOs shall serve the first 2 years of their sentences thereMay be transferred thereafter in the Dept.’s discretion (See statute for list of factors) [Corr Law 77]Confinement is with Dept. of Corrections

Facilities (Con’t)Discharge Plans [Corr Law 78]OCFS and Corrections Dept. shall provide discharge plans for JOs and AOs released to parole or post-release supervisionPlans shall include services designed to:Address youth’s needs upon re-entryPromote public safety

CounselIndigent defendants to have counsel, including at arraignment [Exec Law 832]State to reimburse counties for cost of representation [County Law 722-e]Office of Indigent Legal Services shall promulgate rules for and monitor caseload and quality of representation

Sealing

Youth PartAnyone convicted (AO or JO) of an eligible offense may seek to have his/her record sealed after 10 years from later of imposition of the sentence or discharge from incarcerationViolent felonies, sex offenses, and Class A felonies are not eligibleOnly available for people with no more than 2 convictionsOnly 1 may be for a felony [CPL 160.59(1)(a); 160.59(2); 160.59(5)]Sealing

Youth Part (Con’t)Court to create standardized form to apply for sealing [CPL 160.59(1), (1-a)]Upon applicationDA must be noticed and has 45 days to objectCourt shall order fingerprint criminal history reportSee statute for list of factors to be consideredOpportunity to apply for sealing may not be waived as part of pleaSealing

Family CourtMotion to Seal (JDs)Currently: motion may not be made until age 16After 10/1/18: increased to age 17After 10/1/19: increased to age 18Sealing

PINSAs of 1/1/20, NYS shall not reimburse for the cost of detention or placement of a PINS [Exec Law 530; SSL 153-k]

Removal to Family CourtAdolescentOffenders

Adolescent OffendersAll matters shall be transferred to Family Court after arraignment, unlessDA brings a motion to prevent transfer and Court finds that offense should not be removed, orYouth is charged with one of the followingAdditional steps applyClass A felonies (except controlled substances, which should be transferred)Violent feloniesVTL (cannot be removed)JO (different standard applies)Removal to Family Court

Adolescent Offenders (Con’t)DA’s Motion to Prevent Transfer to Family CourtMotion RequirementsDA must file within 30 days of arraignment [CPL 722.23(1)(a)]In writing, upon “prompt” notice to defendant, sworn affidavits regarding factual allegations, and shall indicate if a hearing is requested [CPL 722.23(1)(b)]Motion to be heard “promptly” [CPL 722.23(1)(b)]Defendant has opportunity to replyCourt shall grant reasonable request for delay [CPL 722.23(1)(c)]HearingEither party may request a hearing [CPL 722.23(1)(c)]To be held “expeditiously” [CPL 722.23(1)(c)]Removal to Family Court

Adolescent Offenders (Con’t)Court’s Decision on DA’s Motion to Prevent Transfer to Family CourtCourt shall deny Motion unless “extraordinary circumstances” exist [CPL 722.23(1)(d)]Decision within 5 days of the hearing or submission by defense, whichever is later [CPL 722.23(1)(e)]Include findings of fact and conclusions of law [CPL 722.23(1)(e)]Removal to Family Court

Adolescent Offenders (Con’t)Class A Felonies and Violent Felonies may be removed to Family Court if:DA requests removal, ANDCourt finds removal to be in the interests of justice [CPL 722.21(5)]Removal to Family Court

Adolescent Offenders (Con’t)To determine “interests of justice”, Court must consider:Seriousness and circumstances of offenseExtent of harm causedEvidence of guilt, whether or not admissible at trialHistory, character and condition of defendantPurpose and effect of a sentence upon defendantImpact on safety and welfare of community if remove to Family CourtImpact of a removal on the public’s confidence in the criminal justice Where Court deems appropriate, may consider attitude of complainant/victim regarding motionAny other relevant fact indicating that a conviction in criminal court would serve no useful purposeRemoval to Family Court

Adolescent Offenders (Con’t)Charge of murder 2nd, rape 1st, sexual act 1st, armed felony may be removed if:DA requests removal, ANDCourt finds removal to be in the interests of justice, ANDOne or more of the following:Mitigating circumstances that bear directly upon manner in which crime was committedDefendant was not sole participant in crime and defendant’s role was minor (though not so minor as to constitute a defense)Possible deficiencies in proof of the crimeRemoval to Family Court

Adolescent Offenders (Con’t)Removal of Class A Felonies and Violent FeloniesCourt may make “such inquiry as deemed necessary” [CPL 722.21(6)(c)]Can consider evidence not privilegedIf Defendant testifies, may not be used in later proceedings except to impeach for inconsistent testimonyDA shall state reasons for consent on record [CPL 722.21(6)(b)]If removal is ordered, Court must state on record the factor(s) upon which ruling is based and reasons for removal [CPL 722.21(6)(a)]Removal to Family Court

Adolescent Offenders (Con’t)Procedure Removal of Class A (except controlled substances) and Violent FeloniesArraignmentAppearance to review the accusatory instrument and “any other relevant facts” to determine whether case should be removed [CPL 722.23(2)(a), (b)]No later than 6 calendar days after arraignmentCourt shall notify DA and DefendantEither party may submit information and/or be heardDefendant may waive review and opportunity for removal [CPL 722.23(4)]Removal to Family Court

Adolescent Offenders (Con’t)Procedure Removal of Class A (except controlled substances) and Violent FeloniesCourt shall order parties to follow foregoing procedure (motion, etc.)Unless Court determines in writing that DA proved, by a preponderance of the evidence, at least one of the following as set forth in the accusatory instrument Caused significant physical injury to someone other than a participant in offenseDisplayed a firearm, shotgun, rifle, or deadly weapon in furtherance of offenseEngaged in sexual intercourse, sexual conduct, anal sexual conduct, or sexual contactNothing precludes removal upon agreement of all parties [CPL 722.23(1)(h)Removal to Family Court

Adolescent Offenders (Con’t)Once Court orders removal, all further proceedings must occur in Family CourtIf charges are reduced such that the highest remaining charge would be removable, Court shall notify the parties and direct that the matter proceed accordingly [CPL 722.23(3)]Removal to Family Court

Removal to Family CourtJuvenile Offenders

Juvenile OffendersWho may request removal? When?Defendant After arraignment, provided felony complaint is pending, and Defendant has not waived a felony hearing and hearing has not commenced [CPL 722.20(5)], orUpon indictment [CPL 722.22(1)]DAAt any time [CPL 722.20(4)]Court, sua sponteAfter arraignment upon indictment [CPL 722.22(1)]Removal to Family Court

Juvenile Offenders (Con’t)Removal Motion ProcedureMotion requirements of CPL 210.45(1), (2) apply [CPL 722(3)]Written motion requiredSworn affidavit if factual information presented, upon eitherPersonal information, orInformation and belief, if the sources for the information and grounds for belief are includedUpon reasonable notice to opposing partyOpposing party may respond in writingRemoval to Family Court

Juvenile Offenders (Con’t)Removal Motion ProcedureDecision on MotionCourt may decide motion on papers, orCourt may hear motion and make “such inquiry as deemed necessary” [CPL 722.22(4)]If Court orders removal, it must state on record the factor(s) behind decision [CPL 722.22(5)(a)]If DA consents, reasons must be stated on record [CPL 722.22(5)(b)]Removal to Family Court

Juvenile Offenders (Con’t)Decision on Removal MotionCourt may grant removal if it is in the “interests of justice” [CPL 722.2]If DA is moving party, Court shall remove if removal is in the “interests of justice” Unless Defendant is charged with murder 2nd, rape 1st, sexual act 1st, or armed felony (see the following slide)Removal to Family Court

Juvenile Offenders (Con’t)Decision on Removal MotionIf Defendant is charged with murder 2nd, rape 1st, sexual act 1st, or armed felony, need:DA consent, ANDOne of the following:Mitigating circumstances bearing directly on manner in which crime was committedDefendant was not sole participant in crime and his/her role was minor (not so minor to be a defense)Possible deficiencies in proof of crimeRemoval to Family Court

Juvenile Offenders (Con’t)Order of Removal [CPL 725]Current law unchangedMust state date certain for Family Court appearanceOnce removal ordered, further proceedings must occur in Family Court [CPL 722.2(6)(f)]Removal to Family Court

Implementation Task ForceGovernor will appoint members [State Finance Law 104]Task Force will coordinate implementation of changesNYS OCA Task ForceJoint Commission with DCJS and OCFSJudicial Assignments CommissionLaw, Education and Training (judicial and non-judicial)Youth Part Template Committee

CostsReimbursement and Discretionary FundsNYS Criminal Justice Dept. shall reimburse probation departments 100% of expenses for 16 and 17 year olds derived exclusively due to RTA legislation, provided evidence-based (Exec Law 246)Additional discretionary funds available for intensive supervision and sex offender programs (Exec Law 246)Counties shall be exempt from eligible expenditures due exclusively to RTA and may apply for hardship waivers under certain circumstances (NYS Finance Law 54-m)

Effective Dates07/01/17: Identification procedures10/06/17: Sealing Provisions04/01/18: Sections related to state reimbursement to the counties for probation04/01/18: Interrogation procedures10/01/18: Sections related to reimbursement for detention and alternative to detention10/01/18: Raise the age for 16-year-olds10/01/19: Raise the age for 17-year-olds01/01/20: Elimination of state support for detained PINS