Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles and sixteen and seventeen year olds into custody.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1963
SPONSOR: Joyner TITLE OF BILL:
An act to amend the family court act and the criminal procedure law, in
relation to the custodial interrogation of juveniles by law enforcement
PURPOSE:
This bill makes a number of changes to the Family Court Act to clarify
and protect the rights of children in the custody of law enforcement and
makes corresponding changes to the Criminal Procedure Law to address
children arrested as juvenile offenders and consult with an attorney
before they can be subjected to custodial interrogation by law enforce-
ment, thereby ensuring any waiver of rights under Miranda is genuinely
knowing, voluntary, and intelligent. The bill also requires that a child
arrested without a warrant be brought directly to court, as opposed to
the police station, if a parent or legally responsible adult is not
expected to appear for them and they are not being questioned, unless
otherwise required under the Criminal Procedure Law.
SUMMARY OF PROVISIONS:
Section One amends FCA § 305.2(3) to make clear that law enforcement's
obligation to "immediately" notify a parent or person legally responsi-
ble (PLR) that their child has been taken into custody requires that
this notification take place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location. Section Two amends FCA § 305.2(4)(a) to state
that when law enforcement has notified an arrested child's pare t or PLR
and reasonably believes that the parent or PLR will appear for the
child, law enforcement shall take that child to his home, the station
house, or another agreed upon location to release him to his parent or
PLR.
Section Three amends FCA § 305.2(4)(b) to state that when law enforce-
ment does not reasonably believe that an arrested child's parent or PLR
will appear for the child, law enforcement shall take that child to
family court or, if family court is not in session, to the designated
magistrate for the child's initial appearance under FCA § 307.4.
Section Four amends FCA § 305.2(4)(c) to conform with other amended
subsections and clarify that an arrested child shall only be taken to
detention if the officer did not release the child or bring the child to
family court or the designated magistrate.
Section Five amends FCA § 305.2(5) to require that when a child has
allegedly committed a designated felony act and the family court is not
session that law enforcement to take such youth to the most accessible
magistrate to conduct a hearing under FCA section 307.4
Section Six amends FCA § 305.2(6) for conformity only, by deleting the
phrase "In all other cases."
Section Seven amends and renumbers FCA § 305.2(7) to FCA § 305.2(8) and
adds a new FCA § 305.2(7) which clarifies that if an officer determines
that questioning of a child necessary prior to taking certain actions
the officer may take the child to a facility designated as suitable for
questioning by the chief administrator of the courts. Section Seven also
amends FCA § 305.2(8) to state that no child shall be questioned under
this section unless and until "the child has consulted with an attorney
in person, by telephone, or by video conference," and establishes that
this consultation may not be waived. Also, section seven establishes
that a child's statement shall be suppressed when the child has not
consulted with an attorney; when a parent or person legally responsible,
if present, has not been advised of and voluntarily waived Miranda; or
when the questioning of the child was not necessary.
Section 8 amends FCA § 724(a) to make clear that law enforcement's obli-
gation with respect to a child taken into custody as a person in need of
supervision to "immediately" notify a parent or person legally responsi-
ble that their child has been taken into custody requires that this
notification takes place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location. Section 8 also mends FCA § 724(b) by removing
language relating to when law enforcement deems questioning of the child
necessary, renumbers FCA § 724(d) to FCA § 724(e), and inserts a new FCA
§ 724(d), which clarifies that if an officer determines that questioning
in necessary prior to taking certain actions the officer may take the
child to a facility designated as suitable for questioning by the chief
administrator of the courts. FCA § 724(e) now provides that in addition
to the child's age and the presence or absence of his parents or other
person legally responsible for his care, parental notification shall be
a factor considered in determining the suitability and reasonable period
of time for questioning the child.
Section 8 also creates FCA § 724(f), which provides that statements made
to law enforcement prior to the commencement of a fact-finding hearing
may not be admitted into evidence at a fact-finding hearing.
Section 9 amends CPL § 140.20(6) to create separate paragraphs and in
paragraph (a) makes clear that law enforcement's obligation with respect
to a child taken into, custody as a juvenile offender or as a person
sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a
parent or person legally responsible that their child has been taken
into custody requires that this notification takes place before that
child can be taken from the location at which he/she was taken into
custody to the police station or any other location.
Section 9 also, in proposed CPL § 140.20(6)(c), adds the provision that
no child shall be questioned under this section unless and until "the
child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.
Section 9 also creates CPL § 140.20(6)(e) to establish that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.
Section 10 amends CPL § 140.27(5) to create separate paragraphs and in
paragraph (a) makes clear that law enforcement's obligation with respect
to a child taken into custody as a juvenile offender or as a person
sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a
parent or person legally responsible that their child has been taken
into custody requires that this notification takes place before that
child can be taken from the location at which he or she was taken into
custody to the police station or any other location.
Section 10 also, in proposed CPL § 140.27(5)(c) adds the provision that
no child shall be questioned under this section unless and until "the
child-has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.
Section 10 also creates CPL.§ 140.27(5)(e) to establish that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if-present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.
Section 11 amends CPL § 140.40(5) to create separate paragraphs and in
paragraph (a) makes clear that law enforcement's obligation with respect
to a child taken into custody as a juvenile offender or as a person
sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a
parent or person legally responsible that their child has been taken
into custody requires that this notification takes place before that
child can be taken from the location at which he or she was taken into
custody to the police station or any other location.
Section 11 also, in proposed CPL § 140.40(5)(c) adds the provision that
no child shall be questioned under this section unless and until "the
child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may'not be
waived.
Section 11 also creates CPL § 140.40(5)(e) to establish that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.
EXISTING LAW:
Existing law in New York State does not ensure that children under 18
years old - with all of their inherent developmental limitations - are
adequately and appropriately able to protect their right to remain
silent pursuant to the 5th Amendment of the United States Constitution.
The Family Court Act and the Criminal Procedure Law already require law
enforcement to "immediately" notify the parent or person legally respon-
sible of a child's arrest. The term "immediate," however, is undefined
under current law, and in practice, law enforcement regularly brings
arrested children to the police station house before notifying parents
or persons legally responsible The statutes also state that law enforce-
ment may only interrogate children when "necessary," but do not define
that crucial term. This ambiguity not only places vulnerable youth at
risk of being unreasonably interrogated, but it also forces law enforce-
ment to contend with uncertainty about what they are permitted to do
under the law, and leaves the courts with little guidance when called
upon to interpret this requirement. Also under current law, when the
police take a youth into custody and wish to interrogate that youth, the
police must advise the child of his/her right to remain silent and,
whenever possible, notify a parent or responsible adult to assist the
youth in deciding whether to waive this right. Family Court, Act §
305.2; Criminal Procedure Law § 140.20(6). This process does not prevent
youth from waiving their Miranda rights nor does it ensure that waiver
is knowing, voluntary and intelligent, as required by t he Constitution.
JUSTIFICATION:
The bill makes three crucial changes to § 305.2 .of the Family Court Act
and to §§ 140.20(6), 140.27(5) and 140.40(5) of the Criminal Procedure
Law. First, it clarifies that law enforcement cannot take a child to the
station house until they have notified a parent or person legally
responsible. Second, it requires that juveniles consult with counsel
before they can waive their rights under Miranda. The bill also makes
the first two changes to Family Court Act § 724.
Family Court Act §§ 305.2 and 724 and Criminal Procedure Law §§
140.20(6), 140.27(5) and 140.40(5) already require that law enforcement
immediately notify an arrested child's parent or legally responsible
adult that the child has been taken into custody; this proposal clari-
fies that immediate notification must take place before the officer
takes the child to another location. In an era in which all officers are
equipped with mobile phones, they are able to make contact with parents
without first taking children to the station house. In most cases, this
will also mean the officer will be able to make a more immediate deter-
mination whether to bring the child to the station house, to the family
court, or to another location permitted by statute.
Under this proposal, unless questioning is necessary, after notifying a
parent, the officer may transport a child to his home, to another greed
upon location, or to the station house for purposes of releasing the
child to the parent with a desk appearance ticket under Family Court Act
§ 305.2 or after securing a written promise from the parent to bring the
child to the designated lead agency at specified time and place under
Family Court Act § 724. When the officer does not have reason to believe
that the parent will appear for the child, unless questioning is neces-
sary, the officer may bring the child straightaway to family court,
before a designated magistrate, to the designated lead agency, or to
another location specified in § 305.2(4) or § 724. Under the proposed
Criminal Procedure Law provisions, unless questioning is necessary,
after notifying the parent, the officer may release the youth with a
desk appearance ticket or bring the youth to the appropriate court or
otherwise proceed according to the provisions of the CPL.
This bill would also establish that under Family Court Act § 3052 and
Criminal Procedure Law § 140.20(6), 140.27(5) and 140.40(5), a child
suspect can only be questioned after consulting with an attorney by
phone, video, or in person. That consultation would be non-waivable, and
the taking of a statement without consultation with counsel, necessity,
or waiver of Miranda rights by a parent if present, would result in
suppression of the statement. Under Family Court Act § 724, a statement
would not be admissible into evidence at a fact finding hearing, since
the petitioner is usually a parent and thus the child can never have the
advice and assistance of a parent who does not have a conflict of inter-
est. This treatment is comparable to those statements given to the
designated lead agency before fact finding.
The decision to waive one's constitutional right to be silent has enor-
mous consequences, which is why the law requires. that the decision be
"knowing, voluntary, and intelligent." See Miranda v. Arizona 384 U.S.
436 (1966). Because children are fundamentally different from adults,
different safeguards are required in order for a child to make a know-
ing, voluntary and intelligent decision about a Miranda waiver.
The importance of additional Miranda protections for adolescents is
well-grounded in science. It is firmly established that brain develop-
ment continues into adulthood, and in recent years, the scientific
community has come to a resounding consensus that the prefrontal cortex
of the brain which largely governs decision-making and judgment general-
ly does not mature until well after the teenage years.* In fact, the
research demonstrates that the brain undergoes a "rewiring" process that
is not complete until approximately 25 years of age.** As a result,
youth are not yet able to consider the long-term consequences of their
actions or to resist environmental pressures as well as adults. The
ability to consider the consequences of one's actions and vulnerability
to environmental pressure are precisely the kinds of issues at play in a
custodial interrogation setting.*** Adolescents especially struggle to
process information and make sound decisions in stressful situations,
such as during interrogation.**** Additionally, research shows that
adolescents - especially those in the justice system, who have high
rates of intellectual disability - often do not have the cognitive
skills necessary to understand the words or concepts in the Miran da
warnings.
The consensus that adolescents' decision-making capabilities are not
fully developed and that, for this reason, young people require unique
legal protections has been recognized and embraced by the United States
Supreme Court. Children are, in the Court's words, "generally less
mature and responsible than adults;" "they often lack the experience,
perspective, and judgment to recognize and avoid choices that could be
detrimental to them"; and "they are more vulnerable or susceptible to
outside pressures than adults." J.D.B.V. North Carolina, 131 S.Ct.
2394, 2397 (2011) (internal quotations omitted). In addition, the
Supreme Court has recognized that children "have limited understandings
of the criminal justice system and the roles of the institutional actors
within it" Graham v. Florida, 560 U.S. 48, 78 (2010). Addressing the
specific context of police interrogation, the Supreme Court has observed
that events that "would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens." Haley v. Ohio, 332 U.S. 596,
599(1948). Finally, it has noted that "no matter how sophisticated, a
juvenile subject of police interrogation cannot be compared to an adult
subject" J.D.B., 131 S.Ct. at 2403 (internal quotations omitted).
In fact, leading professional organizations with expertise about chil-
dren agree that attorney consultation is needed during interrogation
because of children's developmental limitations. The American Psycholog-
ical Association, for example, "recommends that particularly vulnerable
suspect populations, including youth, persons with developmental disa-
bilities, and persons with mental illness, be provided special and
professional protection during interrogations such as being accompanied
and advised by an attorney or professional advocate."***** The American
Academy on Child and Adolescent Psychiatry similarly believes that youth
should have an attorney present during questioning by police and that
"when interviewing juvenile suspects, police should use terms and
concepts appropriate to the individual's developmental level. Any writ-
ten material should also be geared to the person's grade level and
cognitive capacity. In general, it is not sufficient to simply read or
recite information to a juvenile."****** Unfortunately, the presence of
a parent or responsible adult does not adequately ensure that a child
makes a knowing, voluntary and intelligent decision with respect to his
or her Miranda rights.
Parents often have conflicting interests and often misunderstand the
proceedings. Because parents may teach their children to respect and
cooperate with law enforcement, they may find it difficult to advise a
child in custody not to cooperate. Similarly, parents teach their chil-
dren to tell the truth; but often a refusal to speak - even when the
child believes himself to be "innocent"- is in the youth's legal inter-
ests. Parents often find it hard to believe that their child could
possibly do whatever the child is accused of and therefore urge the
child to speak, not realizing that doing so may well undermine the
child's legal interests. Furthermore, when children are arrested, it
often occurs in the context of intra-familial disputes, discord, or
violence. Resulting conflicts of interest force parents to choose
between, on the one hand, giving the child in custody the best advice
and, on the other, looking out for the best interests of the other fami-
ly member involved, which is often the parent him/herself. All of these
issues are compounded when, as is often the case, the parent has been
summoned to the police station in the middle of the night, is feeling
humiliated, resentful, or even angry with the child, and is unable to
must er the kind of dispassionate and reflective thought process neces-
sary to best advise the child. Finally, often the parent or responsible
adult him/herself doesn't understand the meaning and nature of the
rights the youth is being asked to waive.
Social science research confirms that the existing parental notification
process to protect the rights of youth is inadequate. Research has
found that when parents are present during interrogation, they almost
always either do not help their children make a decision or actually
encourage their children to waive their rights.******* Having a child
rely exclusively on the advice of an adult who may have conflicting
interests and who likely does not him/herself understand the meaning and
nature of the right at stake and the potential consequences of waiving
that right undermines the purpose of Family Court Act § 305 2 and Crimi-
nal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5).
Legal counsel would offer expert, objective advice to young people about
their Constitutional right to remain silent and their ability to waive
this right and speak to the police. Only with the benefit of such a
conflict-free consultation can children make any waiver 'of this bedrock
right knowingly,' voluntarily, and intelligently, in keeping with
requirements of the state and federal Constitutions. For this reason,
youth under 18 years of age facing custodial interrogation must be
required to consult with legal counsel to assist in their understanding
of their rights and the consequences of waiving those rights prior to
waiving their rights under Miranda.
LEGISLATIVE HISTORY:
03/01/21 referred to children and families
05/20/21 amend and recommit to children and families
05/20/21 print number 5891a
05/25/21 reported referred to codes
06/02/21 amend and recommit to codes
06/02/21 print number 5891b
06/07/21 reported referred to ways and means
06/08/21 reported referred to rules
06/08/21 reported
06/08/21 rules report cal.569
06/08/21 ordered to third reading rules cal.569
01/05/22 ordered to third reading cal.194
04/26/22 amended on third reading 5891c
06/01/22 passed assembly
06/01/22 delivered to senate
06/01/22 REFERRED TO FINANCE
FISCAL IMPLICATIONS:
Although the provision of counsel for consultation at interrogation will
inevitably impose a cost to the state and local jurisdictions, this bill
will also provide an important cost-saving benefit. Under current law,
juvenile defense attorneys and criminal defense attorney often spend
significant amounts of time litigating the legality of their clients'
interrogation by law enforcement in what are known as Huntley hearings.
These hearings can require several lengthy court appearances, consuming
significant resources of defense attorneys, prosecutors, law enforcement
witnesses, and judges. If this bill becomes law, it will eliminate the
need for a Huntley hearing in the vast maj'ority of cases, significantly
reducing the strain on the many agencies and individuals involved.
EFFECTIVE DATE:
This act shall take effect April 1, 2023.
* Linda B. Chamberlain, The Amazing Teen Brain: What Every Child Advo-
cate Needs to Know, 28 A.B.A. CHILD. L. PRAC. No. 2 at 17-18 (April
2009). ** M. Arain et al., Maturation of the Adolescent Brain, 9 NEUROP-
SY-CHIATR.DIS.TREAT.449-461(2013),availableat
https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3621648/, citing L. Gavin
et al., Sexual and Reproductive Health of persons aged 10-24 years
United States, 2002-2007, 58(6) MMWR SURVEILL. SUMM. 1-58 (2009). ***
See Goldstein et al., Waving Good-bye to Waiver: A Developmental Argu-
ment Against Youths' Waiver of Miranda Rights, Legislation and Public
Policy, vol. 21 (2018); Elizabeth Cauffman & Laurence Steinberg, Emerg-
ing Findings from Research on Adolescent Development and Juvenile
Justice, 7 Victims and Offenders 428, 433 (2012); LaurencSteinberg,
Adolescent Development and Juvenile Justice, 5 Ann. Re .Clinical
Psychol. 459, 65-71 (2009); Laurence Steinberg, The Science of Adoles-
cent Brain Development and Its Implication for Adolescent Rights and
Responsibilities, in Human Rights and Adolescence 59, 64 (Jacqueline
Bhabha. ed., 2014); Dustin Albert & Laurence Steinberg, Judgment and
Decision-Making in Adolescence, 21 J. Res. Adolescence 211(2011); Linda
Van Leijenhorst et al., Adolescent Risky Decision-Making: Neurocognitive
Development of Reward and Control Regions, 51 Neuroimage 345; 353-54
(2010). Sarah-Jayne Blakemore & Trevor W. Robbins, Decision-Making in
the Adoleicent Brain, 15 Nature Neuroscience 1184, 1186 (2012). **** See
Goldstein et al., supra. ***** Resolution on Interrogations of Criminal
Suspects, Am. Psychol.Ass'n (2014), http://www.apa.org/about/policy/
interrogations.aspx. ****** Interviewing and Interrogating Juvenile
Suspects,Am.Acad. Child&AdolescentPsychiatry(Mar.7, 2013),
https://www.aacap.org/ aacapipolicy_statements/2013/ Intervievving_and_
Interrogating_JuvenileSuspects. aspx. ******* Jodi L. Viljoen et al.,
Legal Decisions of Preadolescent and Adolescent Defendants: Predictors
of Confessions, Pleas, Communication with. At torneys, and Appeals, 29
Law & Hum. Behay. 253, 261 (2005). Jennifer L Woolard et al., Examining
Adolescents' and their Parents' Conceptual & Practical Knowledge of
Police Interrogation: A Family Dyad Approach, 37 J. Youth & Adolescence
685, 690-94 (2008).
STATE OF NEW YORK
________________________________________________________________________
1963
2023-2024 Regular Sessions
IN ASSEMBLY
January 23, 2023
___________
Introduced by M. of A. JOYNER -- read once and referred to the Committee
on Children and Families
AN ACT to amend the family court act and the criminal procedure law, in
relation to the custodial interrogation of juveniles by law enforce-
ment
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 3 of section 305.2 of the family court act, as
2 added by chapter 920 of the laws of 1982, is amended to read as follows:
3 3. If an officer takes such child into custody or if a child is deliv-
4 ered to him or her under section 305.1, he or she shall immediately,
5 before transporting the child to the police station house, notify the
6 parent or other person legally responsible for the child's care, or if
7 such legally responsible person is unavailable the person with whom the
8 child resides, that the child has been taken into custody.
9 § 2. Paragraph (a) of subdivision 4 of section 305.2 of the family
10 court act, as added by chapter 920 of the laws of 1982, is amended to
11 read as follows:
12 (a) when the officer reasonably believes such parent or other person
13 legally responsible for the child's care will appear, take the child to
14 his or her home, the station house, or another location agreed upon with
15 the parent or person legally responsible, and release the child to the
16 custody of [his parents or other person legally responsible for his
17 care] such person upon the issuance in accordance with section 307.1 of
18 a family court appearance ticket to the child and the person to whose
19 custody the child is released; or
20 § 3. Paragraph (b) of subdivision 4 of section 305.2 of the family
21 court act, as amended by section 63 of part WWW of chapter 59 of the
22 laws of 2017, is amended to read as follows:
23 (b) when the officer does not reasonably believe the parent or other
24 person legally responsible for the child's care will appear for the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03283-01-3
A. 1963 2
1 child, forthwith and with all reasonable speed take the child directly,
2 and without his or her first being taken to the police station house, to
3 the family court located in the county in which the act occasioning the
4 taking into custody allegedly was committed, or, when the family court
5 is not in session, to the most accessible magistrate, if any, designated
6 by the appellate division of the supreme court in the applicable depart-
7 ment to conduct a hearing under section 307.4 [of this part, unless the
8 officer determines that it is necessary to question the child, in which
9 case he or she may take the child to a facility designated by the chief
10 administrator of the courts as a suitable place for the questioning of
11 children or, upon the consent of a parent or other person legally
12 responsible for the care of the child, to the child's residence and
13 there question him or her for a reasonable period of time]; or
14 § 4. Paragraph (c) of subdivision 4 of section 305.2 of the family
15 court act, as amended by section 3 of part G of chapter 58 of the laws
16 of 2010, is amended to read as follows:
17 (c) when the officer does not release the child pursuant to paragraph
18 (a) of this subdivision, or take the child to family court or to a
19 magistrate pursuant to paragraph (b) of this subdivision, take the child
20 to a place certified by the office of children and family services as a
21 juvenile detention facility for the reception of children; or
22 § 5. Subdivision 5 of section 305.2 of the family court act, as
23 amended by chapter 398 of the laws of 1983, is amended to read as
24 follows:
25 5. If such child has allegedly committed a designated felony act as
26 defined in subdivision eight of section 301.2, and the family court in
27 the county is in session, the officer shall forthwith take the child
28 directly to such family court[, unless the officer takes the child to a
29 facility for questioning in accordance with paragraph (b) of subdivision
30 four. If such child has not allegedly committed a designated felony act
31 and such family court is in session, the officer shall either forthwith
32 take the child directly to such family court, unless the officer takes
33 the child to a facility for questioning in accordance with paragraph (b)
34 of subdivision four or release the child in accordance with paragraph
35 (a) of subdivision four] or, when the family court is not in session, to
36 the most accessible magistrate, if any, designated by the appellate
37 division of the supreme court in the applicable department to conduct a
38 hearing under section 307.4.
39 § 6. Subdivision 6 of section 305.2 of the family court act, as added
40 by chapter 920 of the laws of 1982, is amended to read as follows:
41 6. [In all other cases] If such child has not allegedly committed a
42 designated felony act, and in the absence of special circumstances, the
43 officer shall release the child in accordance with paragraph (a) of
44 subdivision four.
45 § 7. Subdivisions 7 and 8 of section 305.2 of the family court act,
46 subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
47 sion 8 as amended by chapter 299 of the laws of 2020, are amended and a
48 new subdivision 10 is added to read as follows:
49 7. If the officer determines that questioning of the child is neces-
50 sary prior to taking action authorized by subdivision four or five, the
51 officer may take the child to a facility designated by the chief admin-
52 istrator of the courts as a suitable place for the questioning of chil-
53 dren or, upon the consent of a parent or other person legally responsi-
54 ble for the care of the child, to the child's residence and there,
55 subject to the requirements of subdivision eight, question him or her
56 for a reasonable period of time.
A. 1963 3
1 8. A child shall not be questioned pursuant to this section unless
2 [he] or until:
3 (a) the child and a person required to be notified pursuant to subdi-
4 vision three if present, have been advised:
5 [(a)] (i) of the child's right to remain silent;
6 [(b)] (ii) that the statements made by the child may be used in a
7 court of law;
8 [(c)] (iii) of the child's right to have an attorney present at such
9 questioning; and
10 [(d)] (iv) of the child's right to have an attorney provided for him
11 or her without charge if he or she is indigent; and
12 (b) the child has consulted with legal counsel in person, by tele-
13 phone, or by video conference. This consultation may not be waived.
14 [8.] 9. In determining the suitability of questioning and determining
15 the reasonable period of time for questioning such a child, the child's
16 age, the presence or absence of his or her parents or other persons
17 legally responsible for his or her care, notification pursuant to subdi-
18 vision three and, where the child has been interrogated at a facility
19 designated by the chief administrator of the courts as a suitable place
20 for the questioning of juveniles, whether the interrogation was in
21 compliance with the video-recording and disclosure requirements of
22 subdivision five-a of this section shall be included among relevant
23 considerations.
24 10. In addition to statements that must be suppressed as involuntarily
25 made within the definition in subdivision two of section 344.2, a state-
26 ment shall be suppressed: when the child has not consulted with legal
27 counsel as required by paragraph (b) of subdivision eight; or when a
28 person notified pursuant to subdivision three, if present, has not been
29 advised of and voluntarily waived the rights delineated in paragraph (a)
30 of subdivision eight.
31 § 8. Section 724 of the family court act, the section heading and
32 subdivisions (b) and (c) as amended by chapter 843 of the laws of 1980,
33 subdivision (a) as amended by chapter 920 of the laws of 1982, para-
34 graphs (i) and (ii) as amended and paragraph (iv) of subdivision (b) as
35 added by section 4 of part E of chapter 57 of the laws of 2005, para-
36 graph (iii) of subdivision (b) as amended by section 7 of part M of
37 chapter 56 of the laws of 2017, and subdivision (d) as added by chapter
38 809 of the laws of 1963, is amended to read as follows:
39 § 724. Duties of police officer or peace officer after taking into
40 custody or on delivery by private person. (a) If a peace officer or a
41 police officer takes into custody or if a person is delivered to him or
42 her under section seven hundred twenty-three, the officer shall imme-
43 diately, before transporting the child to any other location, notify the
44 parent or other person legally responsible for his or her care, or the
45 person with whom he or she is domiciled, that he or she has been taken
46 into custody.
47 (b) After making every reasonable effort to give notice under [para-
48 graph] subdivision (a) of this section, the officer shall
49 (i) when the officer reasonably believes such parent or other person
50 legally responsible for the child's care will appear, take the child to
51 his or her home, the police station house, or another location agreed
52 upon with the parent or person legally responsible, and release the
53 youth to the custody of [his or her parent or other] such person [legal-
54 ly responsible for his or her care] upon the written promise, without
55 security, of the person to whose custody the youth is released that he
56 or she will produce the youth before the lead agency designated pursuant
A. 1963 4
1 to section seven hundred thirty-five of this article in that county at a
2 time and place specified in writing; or
3 (ii) when the officer does not reasonably believe such parent or other
4 person legally responsible for the child's care will appear for the
5 child, forthwith and with all reasonable speed take the youth directly,
6 and without first being taken to the police station house, to the desig-
7 nated lead agency located in the county in which the act occasioning the
8 taking into custody allegedly was done[, unless the officer determines
9 that it is necessary to question the youth, in which case he or she may
10 take the youth to a facility designated by the chief administrator of
11 the courts as a suitable place for the questioning of youth or, upon the
12 consent of a parent or other person legally responsible for the care of
13 the youth, to the youth's residence and there question him or her for a
14 reasonable period of time]; or
15 (iii) take a youth in need of crisis intervention or respite services
16 to a runaway and homeless youth crisis services program or other
17 approved respite or crisis program; or
18 (iv) take the youth directly to the family court located in the county
19 in which the act occasioning the taking into custody was allegedly done,
20 provided that the officer affirms on the record that he or she attempted
21 to exercise the options identified in paragraphs (i), (ii) and (iii) of
22 this subdivision, was unable to exercise these options, and the reasons
23 therefor.
24 (c) In the absence of special circumstances, the officer shall release
25 the child in accord with paragraph [(b)] (i) of subdivision (b) of this
26 section.
27 (d) If the officer determines that questioning of the child is neces-
28 sary prior to taking action authorized by subdivision (b) of this
29 section, the officer may take the child to a facility designated by the
30 chief administrator of the courts as a suitable place for the question-
31 ing of children or, upon the consent of a parent or other person legally
32 responsible for the care of the child, to the child's residence and
33 there, subject to the requirements of subdivision (e) of this section,
34 question him or her for a reasonable period of time.
35 (e) In determining the suitability of questioning and determining what
36 is a "reasonable period of time" for questioning a child, the child's
37 age [and], the presence or absence of his or her parents or other person
38 legally responsible for his or her care and notification pursuant to
39 subdivision (a) of this section shall be included among the relevant
40 considerations.
41 (f) No statement made to a peace officer or a police officer prior to
42 the commencement of a fact-finding hearing may be admitted into evidence
43 at a fact-finding hearing.
44 § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
45 amended by section 20 of part WWW of chapter 59 of the laws of 2017, is
46 amended to read as follows:
47 6. (a) Upon arresting a juvenile offender or a person sixteen or
48 [commencing October first, two thousand nineteen,] seventeen years of
49 age without a warrant, the police officer shall immediately, before
50 transporting the child to the police station house, notify the parent or
51 other person legally responsible for his or her care or the person with
52 whom he or she is domiciled, that such juvenile offender or [person]
53 sixteen or seventeen year old has been arrested, and the location of the
54 facility where he or she [is being] will be detained.
55 (b) If the officer determines that it is necessary to question a juve-
56 nile offender or [such person] sixteen or seventeen year old, the offi-
A. 1963 5
1 cer must take him or her to a facility designated by the chief adminis-
2 trator of the courts as a suitable place for the questioning of children
3 or, upon the consent of a parent or other person legally responsible for
4 the care of the juvenile or [such person] sixteen or seventeen year old,
5 to his or her residence and there, subject to the requirements of para-
6 graph (c) of this subdivision, question him or her for a reasonable
7 period of time.
8 (c) A juvenile offender or [such person] sixteen or seventeen year old
9 shall not be questioned pursuant to this section unless or until:
10 (i) he or she and a person required to be notified pursuant to para-
11 graph (a) of this subdivision, if present, have been advised:
12 [(a)] (A) of the juvenile offender's or [such person's] sixteen or
13 seventeen year old's right to remain silent;
14 [(b)] (B) that the statements made by him or her may be used in a
15 court of law;
16 [(c)] (C) of his or her right to have an attorney present at such
17 questioning; and
18 [(d)] (D) of his or her right to have an attorney provided for him or
19 her without charge if he or she is unable to afford counsel[.];
20 (ii) the juvenile offender or sixteen or seventeen year old has
21 consulted with an attorney in person, by telephone, or by video confer-
22 ence. This consultation may not be waived.
23 (d) In determining the suitability of questioning and determining the
24 reasonable period of time for questioning such a juvenile offender or
25 [person] sixteen or seventeen year old, his or her age, the presence or
26 absence of his or her parents or other persons legally responsible for
27 his or her care and notification pursuant to paragraph (a) of this
28 subdivision shall be included among relevant considerations.
29 (e) In addition to statements that must be suppressed as involuntarily
30 made within the definition in subdivision two of section 60.45 of this
31 chapter, a statement shall be suppressed: when the child has not
32 consulted with an attorney as required by paragraph (c) of this subdivi-
33 sion; or when a person notified pursuant to paragraph (a) of this subdi-
34 vision, if present, has not been advised of and voluntarily waived the
35 rights delineated in paragraph (c) of this subdivision.
36 § 10. Subdivision 5 of section 140.27 of the criminal procedure law,
37 as amended by section 23 of part WWW of chapter 59 of the laws of 2017,
38 is amended to read as follows:
39 5. (a) Upon arresting a juvenile offender or a person sixteen or
40 [commencing October first, two thousand nineteen,] seventeen years of
41 age without a warrant, the peace officer shall immediately, before
42 transporting the child to the police station house, notify the parent or
43 other person legally responsible for his or her care or the person with
44 whom he or she is domiciled, that such juvenile offender or [person]
45 sixteen or seventeen year old has been arrested, and the location of the
46 facility where he or she [is being] will be detained.
47 (b) If the officer determines that it is necessary to question a juve-
48 nile offender or [such person] sixteen or seventeen year old, the offi-
49 cer must take him or her to a facility designated by the chief adminis-
50 trator of the courts as a suitable place for the questioning of children
51 or, upon the consent of a parent or other person legally responsible for
52 the care of a juvenile offender or [such person] sixteen or seventeen
53 year old, to his or her residence and there, subject to the requirements
54 of paragraph (c) of this subdivision, question him or her for a reason-
55 able period of time.
A. 1963 6
1 (c) A juvenile offender or [such person] sixteen or seventeen year old
2 shall not be questioned pursuant to this section unless or until:
3 (i) the juvenile offender or [such person] sixteen or seventeen year
4 old and a person required to be notified pursuant to paragraph (a) of
5 this subdivision, if present, have been advised:
6 [(a)] (A) of his or her right to remain silent;
7 [(b)] (B) that the statements made by the juvenile offender or [such
8 person] sixteen or seventeen year old may be used in a court of law;
9 [(c)] (C) of his or her right to have an attorney present at such
10 questioning; and
11 [(d)] (D) of his or her right to have an attorney provided for him or
12 her without charge if he or she is unable to afford counsel[.]; and
13 (ii) the juvenile offender or sixteen or seventeen year old has
14 consulted with an attorney in person, by telephone or by video confer-
15 ence. This consultation may not be waived.
16 (d) In determining the suitability of questioning and determining the
17 reasonable period of time for questioning such a juvenile offender or
18 [such person] sixteen or seventeen year old his or her age, the presence
19 or absence of his or her parents or other persons legally responsible
20 for his or her care and notification pursuant to paragraph (a) of this
21 subdivision shall be included among relevant considerations.
22 (e) In addition to statements that must be suppressed as involuntarily
23 made within the definition in subdivision two of section 60.45 of this
24 chapter, a statement shall be suppressed: when the child has not
25 consulted with an attorney as required by paragraph (c) of this subdivi-
26 sion; or when a person notified pursuant to paragraph (a) of this subdi-
27 vision, if present, has not been advised of and voluntarily waived the
28 rights delineated in paragraph (c) of this subdivision.
29 § 11. Subdivision 5 of section 140.40 of the criminal procedure law,
30 as amended by section 24 of part WWW of chapter 59 of the laws of 2017,
31 is amended to read as follows:
32 5. (a) If a police officer takes an arrested juvenile offender or a
33 person sixteen or [commencing October first, two thousand nineteen,]
34 seventeen years of age into custody, the police officer shall immediate-
35 ly, before transporting the child to the police station house notify the
36 parent or other person legally responsible for his or her care or the
37 person with whom he or she is domiciled, that such juvenile offender or
38 [person] sixteen or seventeen year old has been arrested, and the
39 location of the facility where he or she [is being] will be detained.
40 (b) If the officer determines that it is necessary to question a juve-
41 nile offender or [such person] sixteen or seventeen year old the officer
42 must take him or her to a facility designated by the chief administrator
43 of the courts as a suitable place for the questioning of children or,
44 upon the consent of a parent or other person legally responsible for the
45 care of the juvenile offender or [such person] sixteen or seventeen year
46 old, to his or her residence and there, subject to the requirements of
47 paragraph (c) of this subdivision, question him or her for a reasonable
48 period of time.
49 (c) A juvenile offender or [such person] sixteen or seventeen year old
50 shall not be questioned pursuant to this section unless or until:
51 (i) he or she and a person required to be notified pursuant to para-
52 graph (a) of this subdivision, if present, have been advised:
53 [(a)] (A) of his or her right to remain silent;
54 [(b)] (B) that the statements made by the juvenile offender or [such
55 person] sixteen or seventeen year old may be used in a court of law;
A. 1963 7
1 [(c)] (C) of his or her right to have an attorney present at such
2 questioning; and
3 [(d)] (D) of his or her right to have an attorney provided for him or
4 her without charge if he or she is unable to afford counsel[.]; and
5 (ii) the juvenile offender or sixteen or seventeen year old has
6 consulted with an attorney in person, by telephone, or by video confer-
7 ence. This consultation may not be waived.
8 (d) In determining the suitability of questioning and determining the
9 reasonable period of time for questioning such a juvenile offender or
10 [such person] sixteen or seventeen year old, his or her age, the pres-
11 ence or absence of his or her parents or other persons legally responsi-
12 ble for his or her care and notification pursuant to paragraph (a) of
13 this subdivision shall be included among relevant considerations.
14 (e) In addition to statements that must be suppressed as involuntarily
15 made within the definition in subdivision two of section 60.45 of this
16 chapter, a statement shall be suppressed: when the child has not
17 consulted with an attorney as required by paragraph (c) of this subdivi-
18 sion; or when a person notified pursuant to paragraph (a) of this subdi-
19 vision, if present, has not been advised of and voluntarily waived the
20 rights delineated in paragraph (c) of this subdivision.
21 § 12. This act shall take effect April 1, 2024.
