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A06409 Summary:

BILL NOA06409
 
SAME ASNo Same As
 
SPONSORBarclay
 
COSPNSRGandolfo, Norris, Angelino, Walsh, Smullen, Palmesano, Durso, Gallahan, DeStefano, Hawley, Morinello, Bendett, Manktelow, Flood, McGowan, Reilly, Gray, Mikulin, Tannousis, Tague, Simpson, Brown E, Slater, Ra, Beephan, Novakhov, Friend, Blumencranz, Lemondes, Giglio JM, Miller, Byrnes, Brown K, Giglio JA, Curran, Fitzpatrick, Maher, Brook-Krasny
 
MLTSPNSR
 
Amd §§722.23 & 220.10, rpld §725.15, CP L; amd §§350.3, 381.2 & 381.3, Fam Ct Act
 
Relates to the use of records and information in the family court.
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A06409 Actions:

BILL NOA06409
 
04/06/2023referred to judiciary
05/15/2023reference changed to codes
05/23/2023held for consideration in codes
01/03/2024referred to codes
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A06409 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6409
 
SPONSOR: Barclay
  TITLE OF BILL: An act to amend the criminal procedure law and the family court act, in relation to the use of records and information in the family court; and to repeal certain provisions of the criminal procedure law relating thereto   PURPOSE OR GENERAL IDEA OF BILL: To amend the Criminal Procedure Law and Family Court Act to prevent 16- and 17- year-old Adolescent Offenders who commit serious felonies from escaping criminal liability by being transferred to family court.   SUMMARY OF SPECIFIC PROVISIONS: Section 1. Amends paragraphs (d) and (f) of subdivision 1 of § 722.23 of the Criminal Procedure Law as it relates to removal of Adolescent Offen- ders charged with non-violent felonies to family court, by removing the term "extraordinary circumstances." Provides, following arraignment of a 16- or 17-year-old defendant charged with a non-violent felony, that the court order an action be removed to family court unless the court deter- mines, after considering family court records and upon a motion by the district attorney, that circumstances exist that should prevent the removal of an action to family court. Defines circumstances that should prevent the removal of an action to family court to include, but not be limited to: (i) the defendant caused serious physical injury or death to a person other than a participant in the offense; or (ii) the defendant displayed or displayed what appeared to be a firearm, shotgun, rifle or deadly weapon in furtherance of such offense; or (iii) the defendant possessed a firearm or weapon as prescribed in article 265 or article 490 of the penal law; or (iv) the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact as defined in section 130.00 of th e penal law. Strikes language that states "there shall be a presumption against custody" with respect to this section. Section 2. Amends paragraphs (c), (d) and (e) subdivision 2 of § 722.23 of Criminal Procedure Law as it relates to removal of Adolescent Offen- ders charged with violent felonies to family court, by striking the "3-factor test" provision that only allows the court to keep a defendant in Youth Part of criminal court if the district attorney proves by a "preponderance of the evidence" that the defendant caused "significant" physical injury, displayed an actual gun or deadly weapon or committed a sex offense. Provides that following an arraignment of a 16- or 17-year-old defendant charged with a violent felony offense or a class A felony, the court shall maintain an action in the Youth Part of criminal court, unless all parties agree to remove the action to family court pursuant to CPL 722.21 (5.). Section 3. Repeals § 725.15 of Criminal Procedure Law as it relates to requiring the sealing of juvenile court records, up to and including the order of removal to family court, on file with the court, a police agen- cy or DCJS. Section 4. Amends subdivision 4 of § 350.3 of the Family Court Act to require victims be made aware of the final disposition of a case in family court. Section 5. Amends § 381.2 of the Family Court Act to strike provisions that prohibit family court confessions, admissions, or statements from being admissible as evidence against defendants in any other court. Section 6. Amends paragraph (b) of subdivision 2 of § 381.3 of the Fami- ly Court Act to strike provisions that requires family court adjudi- cations, arrest, and disposition records to be withheld from public inspection. Allows the family court, upon motion and for good cause shown, to order such records open. Section 7. Amends paragraph (g- I) of subdivision 5 of § 220.10 of Crim- inal Procedure Law to provide that an Adolescent Offender must abide by the plea agreement stipulations set forth in § 220.10 of the Criminal Procedure Law. Section 8. Establishes the act shall take effect on the 90th day after becoming law.   JUSTIFICATION: In 2018, New York State raised the age in which an individual can be prosecuted as an adult from 16 to 18 years old. Under Raise the Age (RTA), 16- and 17-year-olds charged with most misdemeanors are automat- ically sent to family court. By contrast, cases involving 16- and 17-year-olds who commit felonies (violent or non-violent), originate in the newly created Youth Part of Superior Court, unless and until their felonies are removed to family court. While RTA created this new Youth Part, staffed by family court judges, the Law's provisions clearly give preference to the removal of 16- and 17-year-olds, including those charged with violent felonies, to family court, where they are not held criminally responsible for their crimes. Their family court records are sealed and cannot be accessed by judges in criminal court Consequently, 16- and 17-year-olds who commit felonies are being treated as perpetual first-time offenders with their cases repeatedly removed to family court. According to DCJS Raise the Age statistics, in 2021, only 9% (257 of 3,303) of 16- and 17-year-olds Adolescent Offenders (AOs) arrested for a felony received a felony conviction. Even more troubling is that, in total, only 114 of these AOs received sentences in excess of one year imprisonment (confined in OCFS facilities), notwithstanding the fact that there were: * 112 arrested for homicide; * 80 arrested for sex offenses; * 587 arrested for firearms/dangerous weapon offenses; * 691 arrested for robbery; * 213 arrested for burglary * 20 arrested for Making a Terroristic Threat, as well as over 1,600 additional felony arrests. Further, in 2021, 83% (91% in 2020) of 16- and 17- year-old Adolescent Offenders charged with felonies were removed to family court or probation intake. Gangs and drug dealers have exploited this lack of accountability and, as the New York Post has pointed out, it is because of the relative immunity of 16- and 17-year-olds, that they often are recruited by senior dealers for turf-security duties' -an entirely predictable conse- quence of Raise the Age. As a result, crime continues to increase and New Yorkers do not feel safe. Victims suffer even more, since current law prohibits them from being informed of the case outcome, which oftentimes results in these offenders being released back into the community. This bill seeks to right the wrongs caused by Raise the Age, by holding repeat offenders who commit serious felonies accountable for their actions, giving peace of mind to their victims and making New York a safer place to live.   NON-VIOLENT FELONIES This bill would require 16- and 17- year-old Adolescent Offenders charged with non-violent felonies to be removed to family court unless the court decides, after reviewing family court records, and upon a motion by the district attorney, that circumstances exist that should prevent the transfer to family court. Such circumstances include, but are not limited to: (i) the defendant caused serious physical injury or death to a person other than a participant in the offense; or (ii) the defendant displayed or displayed what appears to be, a firearm, shotgun, rifle or deadly weapon as defined in the penal law in further- ance of such offense; or (iii) the defendant possessed a firearm or a weapon; or (iv) the defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct, or sexual contact. The court would still be able to remove an action to family court where all parties (judge, defense attorney, prosecutor) agree. * Under RTA, 16- and 17-year-old Adolescent Offenders who commit non- violent felonies are presumptively removed to family court (juvenile delinquency proceedings or probation intake) unless the prosecutor can prove that "extraordinary circumstances" exist for them to remain in Youth Part of Superior Court. "Extraordinary circumstances" is not defined in the law and according to the chief sponsor of the RTA bill in the Assembly, was intended to "apply in only one out of 1,000 cases."   VIOLENT FELONIES This bill would require that 16-and 17-year-old Adolescent Offenders who commit any violent felony (e.g., gang assault, criminal possession of a weapon) remain in the Youth Part of Superior Court, unless all parties (judge, defense attorney, prosecutor) agree the action should be removed to family court in the interest in justice. * Under RTA, 16- and 17-year-old Adolescent Offenders who commit violent felonies are presumptively removed to family court unless the prosecutor can prove by a preponderance of the evidence that the defendant commit- ted (1) "significant" (not defined) physical injury, or (2) displayed a firearm or deadly weapon (but not just possession), or (3) committed a sexual offense, or shows the court that "extraordinary circumstances" exist (one out of 1,0000 cases). Additionally, this bill seeks to provide judges, prosecutors, and defense attorneys with a defendants' previous criminal record. As mentioned, when adjudicating a youth criminal case, judges, prosecutors, and defenders are not allowed to access or consider a defendant's full criminal history. Due to the procedures of family court, and language in the Family Court Act, family court documents pertaining to a defendant's history cannot be shared with another court for any reason, unless it is for sentencing an adult convicted of a crime. This restriction requires judges to treat repeat or persistent offenders as if it were their first time in court, no matter the crime being considered. By amending various portions of the Family Court Act and Criminal Procedure Law, we ensure all parties involved will have continued access to police, family court, and Youth Part criminal court records, while requiring that any victim of a crime committed by an Adolescent Offender is notified of the outcome of a case.   PRIOR LEGISLATIVE HISTORY: New bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: To be determined.   EFFECTIVE DATE: This act shall take effect on the ninetieth day after becoming law. (1)https://nypost.com/2021/07/13/hard-times-as- tlyc-soft-on-crime-doo- nied-by-reforms/
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A06409 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6409
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                      April 6, 2023
                                       ___________
 
        Introduced by M. of A. BARCLAY, GANDOLFO, NORRIS, ANGELINO, WALSH, SMUL-
          LEN,   PALMESANO,   DURSO,  GALLAHAN,  DeSTEFANO,  HAWLEY,  MORINELLO,
          BENDETT, MANKTELOW, FLOOD, MCGOWAN, REILLY, GRAY, MIKULIN,  TANNOUSIS,
          TAGUE,  SIMPSON,  E. BROWN,  SLATER,  RA,  BEEPHAN,  NOVAKHOV, FRIEND,
          BLUMENCRANZ,  LEMONDES,  J. M. GIGLIO,   MILLER,   BYRNES,   K. BROWN,
          J. A. GIGLIO,  CURRAN, FITZPATRICK, MAHER -- read once and referred to
          the Committee on Judiciary
 
        AN ACT to amend the criminal procedure law and the family court act,  in
          relation  to  the  use of records and information in the family court;
          and to repeal certain provisions of the criminal procedure law  relat-
          ing thereto
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Paragraphs (d) and (f) of subdivision 1 of  section  722.23
     2  of  the  criminal  procedure law, as added by section 1-a of part WWW of
     3  chapter 59 of the laws of 2017, are amended to read as follows:
     4    (d) The court shall deny the motion to prevent removal of  the  action
     5  in  youth part unless the court makes a determination upon receiving and
     6  considering the records and information on file with  the  family  court
     7  and  upon  such motion by the district attorney that [extraordinary] one
     8  or more circumstances exist that should  prevent  the  transfer  of  the
     9  action to family court including, but not limited to:
    10    (i)  the defendant caused serious physical injury or death to a person
    11  other than a participant in the offense; or
    12    (ii)   the defendant displayed or displayed  what  appeared  to  be  a
    13  firearm,  shotgun, rifle or deadly weapon as defined in the penal law in
    14  furtherance of such offense; or
    15    (iii)  the defendant possessed a firearm or weapon  as  prescribed  in
    16  article  two  hundred  sixty-five  or article four hundred ninety of the
    17  penal law; or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10346-02-3

        A. 6409                             2
 
     1    (iv) the defendant unlawfully  engaged  in  sexual  intercourse,  oral
     2  sexual  conduct,  anal  sexual  conduct  or sexual contact as defined in
     3  section 130.00 of the penal law.
     4    (f)  For  the  purposes of this section, [there shall be a presumption
     5  against custody and] case planning services shall be made  available  to
     6  the defendant.
     7    § 2. Paragraphs (c), (d) and (e) of subdivision 2 of section 722.23 of
     8  the criminal procedure law, as added by section 1-a of part WWW of chap-
     9  ter 59 of the laws of 2017, are amended to read as follows:
    10    (c)  The  court  shall order the action to [proceed in accordance with
    11  subdivision one of this section] remain  in  youth  part  unless,  after
    12  reviewing  the papers and hearing from the parties, the court determines
    13  in writing that [the district attorney proved by a preponderance of  the
    14  evidence  one  or  more  of the following as set forth in the accusatory
    15  instrument:
    16    (i) the defendant caused significant physical injury to a person other
    17  than a participant in the offense; or
    18    (ii) the defendant displayed a firearm, shotgun, rifle or deadly weap-
    19  on as defined in the penal law in furtherance of such offense; or
    20    (iii) the defendant unlawfully engaged  in  sexual  intercourse,  oral
    21  sexual  conduct,  anal  sexual  conduct  or sexual contact as defined in
    22  section 130.00 of the penal law.
    23    (d) Where the court makes a determination that the  action  shall  not
    24  proceed  in  accordance  with subdivision one of this section, such] all
    25  parties agree that the action may be removed to family court in  accord-
    26  ance  with  subdivision  five  of  section 722.21 of this article.  Such
    27  determination shall be made in writing [or] and on the record and  shall
    28  include  findings  of  fact and to the extent practicable conclusions of
    29  law.
    30    [(e)] (d) Nothing in this subdivision shall preclude,  and  the  court
    31  may  order,  the  removal of an action to family court where all parties
    32  agree or pursuant to this chapter.
    33    § 3. Section 725.15 of the criminal procedure law is REPEALED.
    34    § 4. Subdivision 4 of section 350.3 of the family court act, as  added
    35  by  section  70-a  of  part  WWW  of  chapter 59 of the laws of 2017, is
    36  amended to read as follows:
    37    4. The victim has the right to make a statement  with  regard  to  any
    38  matter relevant to the question of disposition. If the victim chooses to
    39  make  a  statement,  such individual shall notify the court at least ten
    40  days prior to the date of the dispositional  hearing.  The  court  shall
    41  notify the respondent no less than seven days prior to the dispositional
    42  hearing  of  the  victim's  intent to make a statement. The victim shall
    43  [not] be made aware of the final disposition of the case.
    44    § 5. Section 381.2 of the family court act, as added by chapter 920 of
    45  the laws of 1982 and subdivision 2 as amended by chapter 926 of the laws
    46  of 1982, is amended to read as follows:
    47    § 381.2. Use of records in other courts. [1. Neither the fact  that  a
    48  person  was before the family court under this article for a hearing nor
    49  any confession, admission or statement made by him to the  court  or  to
    50  any  officer  thereof  in  any  stage of the proceeding is admissible as
    51  evidence against him or his interests in any other court.
    52    2. Notwithstanding the provisions of subdivision one, another] Another
    53  court[, in imposing sentence upon an adult after conviction] may receive
    54  and consider the records and information on file with the family  court,
    55  unless such records and information have been sealed pursuant to section
    56  375.1.

        A. 6409                             3
 
     1    §  6.  Paragraph  (b)  of subdivision 2 of section 381.3 of the family
     2  court act, as amended by chapter 926 of the laws of 1982, is amended  to
     3  read as follows:
     4    (b)  if  the  respondent  is  subsequently  convicted  of  a  crime or
     5  arraigned pursuant to section 722.21 of the criminal procedure law, to a
     6  judge of the court in which he was convicted,  unless  such  record  has
     7  been sealed pursuant to section 375.1.
     8    §  7. Paragraph (g-1) of subdivision 5 of section 220.10 of the crimi-
     9  nal procedure law, as added by chapter 809  of  the  laws  of  2021,  is
    10  amended to read as follows:
    11    (g-1)  Where  a defendant is an adolescent offender, the provisions of
    12  paragraphs (a), (b), (c) and (d) of this subdivision shall [not]  apply.
    13  Where  the  plea  is  to an offense constituting a misdemeanor, the plea
    14  shall be deemed replaced by an  order  of  fact-finding  in  a  juvenile
    15  delinquency  proceeding,  pursuant  to section 346.1 of the family court
    16  act, and the action shall be removed to the family court  in  accordance
    17  with  article  seven hundred twenty-five of this chapter. Where the plea
    18  is to an offense constituting a felony, the court may remove the  action
    19  to  the family court in accordance with section 722.23 and article seven
    20  hundred twenty-five of this chapter.
    21    § 8. This act shall take effect on the ninetieth day  after  it  shall
    22  have become a law.
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