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/
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.