NY State Senate Bill 2013-S3831A

Senate Bill S3831A

2013-2014 Legislative Session

Actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases

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Archive: Last Bill Status - In Senate Committee Rules Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 20, 2014	committed to rules
Jun 02, 2014	advanced to third reading
May 29, 2014	2nd report cal.
May 28, 2014	1st report cal.1000
Jan 08, 2014	referred to children and families
May 17, 2013	print number 3831a
May 17, 2013	amend and recommit to children and families
Feb 21, 2013	referred to children and families

Votes

- May 28, 2014 - Children And Families Committee Vote
  S3831A
  
  6
  
  Aye
  
  0
  
  Nay
  
  0
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Children And Families Committee Vote: May 28, 2014
      
      aye (6)
      
      Bonacic
      
      Felder
      
      Montgomery
      
      Savino
      
      Tkaczyk
      
      Young

Bill Amendments

Original

A (Active)

2013-S3831 - Details

See Assembly Version of this Bill:: A2602
Current Committee:: Senate Rules
Law Section:: Family Court Act
Laws Affected:: Amd §§315.3, 360.2, 735, 776, 779 & 779-a, add §743, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: S7581, A10520
2015-2016: S5286

2013-S3831 - Summary

Relates to actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases.

2013-S3831 - Sponsor Memo

                                BILL NUMBER:S3831

TITLE OF BILL:  An act to amend the family court act, in relation to
adjudication, dispositional and violation procedures in juvenile
delinquency and persons in need of supervision cases

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

Significant gaps exist in the procedural framework governing juvenile
delinquency (JD) and persons in need of supervision (PINS) cases, each
in the area of violations of court orders. Further, a procedural gap
is evident in the PINS statutory framework, as has repeatedly been
identified by appellate courts. This measure would eliminate these
gaps by clarifying applicable procedures in cases of alleged
violations of adjournments in contemplation of dismissal (ACD's),
orders of probation, orders of placement and orders of conditional
discharge in JD proceedings and with respect to allocutions for
admissions and violations of suspended judgments and orders of
probation in PINS cases.

First, Article 3 of the Family Court Act is silent as to procedures to
be followed and the threshold showing required to establish a
violation of the conditions of an ACD sufficient to restore a case to
the calendar. It likewise is silent regarding whether an ACD violation

should trigger either a fact-finding or dispositional hearing.
Subdivision one of section 315.3 simply provides that "[u]pon ex parte
motion by the presentment agency, or upon the court's own motion, made
at the time the order is issued or at any time during its duration,
the [family] court may restore the matter to the calendar."

In Matter of Edwin L., 88 N.Y.2d 593 (1996), the Court of Appeals
declined to incorporate a specific hearing requirement for violations
of conditions in cases adjourned in contemplation-of dismissal into
Article 3 in the absence of explicit legislation. The Court stated:

We hold that the requirements of due process are satisfied when a
Family Court determines, after conducting an inquiry into the
allegations of the violation petition, and providing the juvenile with
an opportunity to respond to those allegations, that there is a
legitimate basis for concluding that the juvenile has violated a
condition of an ACD order and states the reasons, on the record, for
reaching that determination.

8 N.Y.2d, at 603. Noting that the scope of the hearing will vary
according to the circumstances of particular cases, the Court left
determination of the degree of formality required to the discretion of
the Family Court. It did, however, assume, in the absence of statutory
guidance, that a violation petition would be filed, providing notice
to the juvenile of the violation, that the juvenile would be given an
opportunity to respond to the petition with or without a hearing, and
that hearsay evidence would be admissible to establish the allegations
of the petition.

This measure codifies these elements of Matter of Edwin L. and
provides needed amplification of the applicable procedures. It


requires a verified petition, to be served on the respondent juvenile,
for restoration to the calendar of a JD matter adjourned in
contemplation of dismissal and provides the respondent with an
opportunity to respond to the motion. Filling a gap in the Family
Court Act, the measure authorizes Family Court to order that
respondent juvenile be detained and provides for an expedited
determination of the violation petition in such cases, consistent with
the criteria and time frames applicable in other detention cases.
Consistent with Matter of R.D., 13 Misc.3d I224(A) (Farn. Ct., Nassau
Co., 2006), the measure codifies the direction in Matter of Edwin L.
that hearsay evidence should be admissible,' If the petition to
restore the matter to the calendar is sustained, the case would be set
down for a fact-finding or dispositional hearing, depending upon
whether the matter had been adjourned in contemplation of dismissal
before or after entry of a fact-finding order. Similar to the
provision regarding probation violations [Family Court Act
360.2(4), (5)], the measure further provides that the period .of the
ACD is to be tolled during pendency of the petition, and that, if the
petition to restore the matter to the calendar is dismissed, the
period during which the In light of the Governor's veto of this
proposal in 1999, it was revised to delete reference to a specific
burden of proof.  petition was pending is to be credited to the period
of adjournment in contemplation of dismissal.

Second, the measure clearly specifies that hearsay may be included in
violation petition allegations. Because violations often concern a
juvenile's compliance or lack of compliance with orders to cooperate
with particular programs, it should be possible for probation
violation petitions to be based upon allegations supported by letters,
reports and other documents from the programs in question.  In Matter
of Markim Q., 7 N.Y.3d 406 (2006), the Court of Appeals held that a
facial deficiency in the petition is not jurisdictional and is thus
not reviewable on appeal unless an objection is preserved, thus
reversing the Appellate Division decision that found hearsay
allegations to be insufficient, See Matter of Markim Q., 22 A.D.3d 498
(2d Dept., 2005).2 The measure thus specifies that petition
allegations may include hearsay, although the current requirement for
evidence of proof of the petition to be relevant, material and
competent would be retained.

Third, the measure effectuates the apparent legislative intention to
provide identical provisions tolling orders of probation and
conditional discharge while violation proceedings are pending. While
sections 360.2 and 360.3 articulate a procedure governing violations
of both probation and conditional discharge, references to conditional
discharge appear inadvertently to have been omitted from two
subdivisions of those sections. In Matter of Donald MM, 231 A.D.2d 810
(3rd Dept., 1996), lye. app. denied, 89 N.Y.2d 804 (1996), the
Appellate Division, Third Department, read into section 360.2(4) of
the Family Court Act a requirement that the period of a conditional
discharge be tolled during pendency of a violation petition, as in
probation violation cases. The Court held that omission of the
requirement was unintentional, as "it is apparent from a reading of
all provisions of this statute that the Legislature did not intend for
probationary periods and conditional discharges to be treated
differently." This measure incorporates this tolling requirement into
section 360.2(4) of the Family Court Act. Using the same rationale, it


remedies a similar gap in subdivision five of the same section, which
requires credit for the period of pendency
 of a violation petition to be given in cases in which the violation
has not been sustained.

With respect to PINS proceedings, the measure adds a new section 743
to the Family Court Act, establishing a judicial allocution procedure
for accepting admissions in PINS cases analogous to the allocution
required in JD cases [Family Court Act § 321.3]. The measure would
require Family Court, before accepting an admission in a PINS case, to
ascertain that the juvenile respondent committed the act or acts as to
which an admission is being entered, is voluntarily waiving his or her
right to a hearing and is aware of the dispositional alternatives that
may be ordered as a result of the adjudication that is the likely
consequence of the admission. Additionally, the measure corrects an
apparently inadvertent omission of a phrase in subdivision (h) of
section 735 of the Family Court Act.

The absence of an explicit allocution procedure in the PINS statute
has generated extensive appellate litigation. In Matter of Tabitha
L.L., 87 N.Y.2d 1009 (1996), the Court of Appeals held that it would
be inappropriate to incorporate section 321.3 of the Family Court Act
into Article 7 in the absence of specific legislative authorization.
It did not determine whether an allocution procedure is
constitutionally required, since that issue was not preserved for
appellate review. In a subsequent case, Matter of Tabitha E., 271
A.D.2d 719, 720 (3" Dept., 2000), however, the Appellate Division,
Third Department, held it to be reversible error for Family Court to
accept an admission in a PINS proceeding without first advising
respondent of her right to remain silent. Accord, Matter ofAshley R.,
42 A.D.3d 689 (3d Dept., 2007); Matter of Marquis S., 26 A.D.3d 757
(4' Dept., 2006); Matter of Steven Z., 19 A.D.3d 783 (3d Dept., 2005);
Matter of Matthew RR., 9 A.D.3d 514 (3d Dept., 2004); Matter of
Nichole A., 300 A.D.2d 947 (3' Dept., 2002); Matter ofJodi VV., 295
A.D.2d 659 (3" Dept., 2002); Matter of Shaun U, 288 A.D.2d 708 (3'
Dept., 2001). We believe that considerations of due process -equally
compelling in PINS as in JD cases - militate
 in favor of equivalent protections and, therefore, urges the
Legislature to enact a provision for PINS cases comparable to the
allocution requirement applicable to JD proceedings.

The final two amendments to the PINS statutes would delineate
procedures for violations of orders of suspended judgment and
violations of probation, drawing upon existing JD procedures. See
Family Court Act §§ 360.2, 360.3. Violations of both orders of
probation and suspended judgment would require the filing of a
verified petition, a hearing at which the juvenile is represented by
counsel and a determination by competent proof that the juvenile
committed the violation charged without just cause. Periods of
dispositions of suspended judgment and probation would be tolled
during the pendency of the violation petition. The juvenile must be
advised of his or her rights. See, e.g., Matter of Jessica GG., 19
A.D.3d 765 (3d Dept., 2005); Matter of Ashley A., 296 A.D.2d 627 (3rd
 1pt., 2002).

Upon finding a violation, the Family Court would be authorized to
adjourn the matter for a new dispositional hearing in accordance with


subdivision (b) or (c) of section 749 of the Family Court Act or, at
minimum, provide the juvenile with an opportunity to present evidence.
See Matter of Casey W., 3 A.D.3d 785 (3d Dept., 2004); Matter of
Josiah RR., 277 A.D.2d 654 (3rd Dept., 2000). The court would be
permitted to revoke, continue or modify the order of probation or
suspended judgment. If the order is revoked, the court must order a
different dispositional alternative enumerated in section 754(a), to
state the reasons for its determination and to make the findings
required by section 754(b) of the Family Court Act.  See Matter of
Nathaniel JJ., 265 A.D.2d 660 (3rd Dept., 1999), after remittitur, 270
A.D.2d 783 (3rd Dept., 2000) (PINS probation violation matter remanded
twice for specific findings, first with respect to the reasons for the
disposition and second as to the 16-year old respondent's needs, if
any, for independent living services){3} in matters, such as Nathaniel
J.J., in which the juvenile was placed pursuant to Family Court Act
756, these findings would be mandated as well by the Federal and State
Adoption and Safe Families Acts [Public Law 105-89; L. 1999, c.7; L.
2000, c. 145].

This measure, which would have no fiscal impact upon the State, would
take effect 90 days after becoming a law.

2012 Legislative History: Senate 7581 (Sen. Gallivan) [Rules]

Assembly 10520 (Committee on Rules, at request of M. of A. Paulin, et
al) [Codes]

1 In light of the Governor's veto of this proposal in 1999, it was
revised to delete reference to a specific burden of proof.

2 Like the Appellate Division in Matter of Markim Q., supra, the
Appellate Division, Third Department, has applied strict juvenile
delinquency pleading requirements for non-hearsay allegations to
probation violation petitions. See Matter of Whitney Z, 12 A.D.3d 971
(3d Dept.,2004); Matter of Todd D, 288 A.D.2d 740 (3d Dept.;2001).

3 The final appeal in Matter of Nathaniel JJ , 274 A.D.2d 611 (3rd
Dept., 2000) was dismissed as moot, since the appellant had been
released from placement.

2013-S3831 - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  3831

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 21, 2013
                               ___________

Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee on Children and Families

AN ACT to amend the family  court  act,  in  relation  to  adjudication,
  dispositional  and  violation  procedures  in juvenile delinquency and
  persons in need of supervision cases

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Subdivision 1 of section 315.3 of the family court act, as
amended by chapter 535 of the laws  of  2011,  is  amended  to  read  as
follows:
  1. Except where the petition alleges that the respondent has committed
a designated felony act, the court may at any time prior to the entering
of  a finding under section 352.1 and with the consent of the respondent
order that the proceeding be "adjourned in contemplation of  dismissal".
An  adjournment  in  contemplation of dismissal is an adjournment of the
proceeding, for a period not to exceed six months, with a view to  ulti-
mate  dismissal  of the petition in furtherance of justice. Upon issuing
such an order, providing such terms and conditions as  the  court  deems
appropriate,  the court must release the respondent. The court may, as a
condition of an adjournment in  contemplation  of  dismissal  order,  in
cases  where  the  record  indicates that the consumption of alcohol may
have been a contributing factor, require the respondent  to  attend  and
complete  an  alcohol  awareness  program  established  pursuant to [of]
subdivision (a) of section [19.07] 19.25 of the mental hygiene law.  The
court may, as a condition of an adjournment in contemplation of dismiss-
al  order, in cases where the record indicates that the respondent is an
eligible person as defined in section four hundred fifty-eight-l of  the
social  services  law and has allegedly committed an eligible offense as
defined in such section, direct the respondent to attend and complete an
education reform program established pursuant to  section  four  hundred

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03050-01-3

S. 3831                             2

fifty-eight-l  of  the social services law. [Upon ex parte motion by the
presentment agency, or upon the court's own motion, made at the time the
order is issued or at] AT any time during [its] THE duration OF AN ORDER
ISSUED PURSUANT TO THIS SECTION, the court may restore the matter to the
calendar  IN  ACCORDANCE  WITH  SUBDIVISION FOUR OF THIS SECTION. If the
proceeding is not restored, the petition is, at the  expiration  of  the
order,  deemed  to  have  been  dismissed by the court in furtherance of
justice.
  S 2. Section 315.3 of the family court act is amended by adding a  new
subdivision 4 to read as follows:
  4.  AN APPLICATION TO RESTORE THE MATTER TO THE CALENDAR IN ACCORDANCE
WITH SUBDIVISION ONE OF THIS SECTION SHALL BE IN THE FORM OF A  VERIFIED
PETITION  WHICH  SHALL  BE  SERVED  ON THE RESPONDENT, WHO SHALL HAVE AN
OPPORTUNITY TO BE HEARD WITH RESPECT THERETO. THE PETITION  SHALL  STATE
THE FACTUAL BASIS FOR THE RESTORATION, INCLUDING THE CONDITION OR CONDI-
TIONS  ALLEGED  TO  HAVE BEEN VIOLATED AND THE TIME, PLACE AND MANNER IN
WHICH SUCH VIOLATION OCCURRED. THE RESPONDENT IS ENTITLED TO COUNSEL  AT
ALL  STAGES  OF  A  PROCEEDING  UNDER  THIS SECTION, AND THE COURT SHALL
ADVISE THE RESPONDENT OF SUCH RIGHT AT THE  INITIAL  APPEARANCE  ON  ANY
PETITION  FILED HEREUNDER. UPON REQUEST, THE COURT SHALL GRANT A REASON-
ABLE ADJOURNMENT TO THE RESPONDENT IN ORDER TO RESPOND TO  THE  PETITION
AND,  IF  THE  FACTUAL  ALLEGATIONS  OF  THE  PETITION ARE CONTESTED, TO
PREPARE FOR A HEARING. IF  THE  COURT  DETERMINES  THAT  THE  RESPONDENT
SHOULD  BE DETAINED IN ACCORDANCE WITH THE CRITERIA IN SUBDIVISION THREE
OF SECTION 320.5, THE COURT SHALL HEAR AND DETERMINE THE PETITION WITHIN
THREE DAYS; PROVIDED, HOWEVER, THAT FOR GOOD CAUSE SHOWN, THE COURT  MAY
ADJOURN  THE  MATTER  FOR NOT MORE THAN THREE ADDITIONAL DAYS. IF, AFTER
HEARING THE PETITION, THE COURT FINDS THAT THE  PRESENTMENT  AGENCY  HAS
DEMONSTRATED  BY  RELEVANT AND MATERIAL EVIDENCE THAT ONE OR MORE CONDI-
TIONS OF THE ORDER HAVE BEEN VIOLATED, THE  COURT  SHALL  STATE  ON  THE
RECORD  THE  REASONS FOR SUCH DETERMINATION, GRANT THE PETITION, RESTORE
THE MATTER TO THE CALENDAR AND SCHEDULE THE PROCEEDING FOR A  FACT-FIND-
ING  HEARING  OR  DISPOSITIONAL  HEARING, AS APPLICABLE. UPON FILING THE
PETITION, THE PERIOD OF THE ADJOURNMENT IN  CONTEMPLATION  OF  DISMISSAL
SHALL  BE  INTERRUPTED. SUCH INTERRUPTION SHALL CONTINUE UNTIL SUCH TIME
AS THE COURT DETERMINES THE PETITION. IF THE COURT DENIES THE  PETITION,
THE  PERIOD  DURING  WHICH THE PETITION WAS PENDING SHALL BE CREDITED TO
THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL.
  S 3. Subdivisions 2, 4 and 5 of section 360.2 of the family court act,
as added by chapter 920 of the laws of 1982,  are  amended  to  read  as
follows:
  2.  The  petition  must  be  verified  and subscribed by the probation
service or the appropriate presentment agency. Such petition must stipu-
late the condition or conditions of the order violated and a  reasonable
description  of  the  time,  place  and  manner  in  which the violation
occurred. Non-hearsay allegations OR ALLEGATIONS MADE  UPON  INFORMATION
AND  BELIEF  of  the  factual  part of the petition or of any supporting
depositions must establish, if true, every violation charged.
  4. If a petition  is  filed  under  subdivision  one,  the  period  of
probation  as  prescribed  by  section 353.2 OR CONDITIONAL DISCHARGE AS
PRESCRIBED BY SECTION 353.1 shall be interrupted as of the date  of  the
filing  of  the petition. Such interruption shall continue until a final
determination as to the petition has been made by the court pursuant  to
a  hearing  held  in accordance with section 360.3 or until such time as
the respondent reaches the maximum age of acceptance into a division for
youth facility.

S. 3831                             3

  5. If the court determines THAT there was no violation of probation OR
CONDITIONAL DISCHARGE by the  respondent,  the  period  of  interruption
shall  be  credited to the period of probation OR CONDITIONAL DISCHARGE,
AS APPLICABLE.
  S  4. Subdivision (h) of section 735 of the family court act, as added
by section 7 of part E of chapter 57 of the laws of 2005, is amended  to
read as follows:
  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, may be admitted into evidence at  a  fact-finding
hearing or, if the proceeding is transferred to a criminal court, at any
time prior to a conviction.
  S  5.  The  family court act is amended by adding a new section 743 to
read as follows:
  S 743. ACCEPTANCE OF AN ADMISSION. (A) BEFORE ACCEPTING AN  ADMISSION,
THE  COURT  SHALL  ADVISE  THE  RESPONDENT  OF  HIS  OR  HER  RIGHT TO A
FACT-FINDING HEARING. THE COURT SHALL ALSO ASCERTAIN THROUGH  ALLOCUTION
OF  THE  RESPONDENT  AND HIS OR HER PARENT OR PERSON LEGALLY RESPONSIBLE
FOR HIS OR HER CARE, IF PRESENT, THAT THE RESPONDENT:
  (I) COMMITTED THE ACT OR ACTS TO WHICH AN ADMISSION IS BEING ENTERED;
  (II) IS VOLUNTARILY WAIVING HIS OR HER RIGHT TO A  FACT-FINDING  HEAR-
ING; AND
  (III) IS AWARE OF THE POSSIBLE SPECIFIC DISPOSITIONAL ORDERS.
THE PROVISIONS OF THIS SUBDIVISION SHALL NOT BE WAIVED.
  (B) UPON ACCEPTANCE OF AN ADMISSION, THE COURT SHALL STATE THE REASONS
FOR  ITS  DETERMINATION  AND SHALL ENTER A FACT-FINDING ORDER. THE COURT
SHALL SCHEDULE A DISPOSITIONAL HEARING IN  ACCORDANCE  WITH  SUBDIVISION
(B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS PART.
  S  6.  Section  776  of  the  family  court  act is amended to read as
follows:
  S 776. Failure to comply with terms and conditions of suspended  judg-
ment.  [If  a] A respondent [is] brought before the court for failure to
comply with reasonable terms and conditions of [a] AN ORDER OF suspended
judgment [issued under this article and if,] SHALL BE SUBJECT TO SECTION
SEVEN HUNDRED SEVENTY-NINE-A OF THIS PART. IF, after hearing, the  court
[is satisfied] DETERMINES by competent proof that the respondent WITHOUT
JUST  CAUSE  failed  to comply with such terms and conditions, the court
may ADJOURN THE MATTER FOR A NEW  DISPOSITIONAL  HEARING  IN  ACCORDANCE
WITH  SUBDIVISION (B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS
ARTICLE. THE COURT MAY revoke the [suspension] ORDER of SUSPENDED  judg-
ment and proceed to make any order that might have been made at the time
judgment was suspended.
  S  7.  Section  779  of  the  family  court  act is amended to read as
follows:
  S 779. [Failure] JURISDICTION AND SUPERVISION OF RESPONDENT PLACED  ON
PROBATION;  FAILURE  to  comply  with terms of probation.   [If a] (A) A
RESPONDENT WHO IS PLACED ON PROBATION IN ACCORDANCE WITH  SECTION  SEVEN
HUNDRED  FIFTY-SEVEN OF THIS ARTICLE SHALL REMAIN UNDER THE LEGAL JURIS-
DICTION OF THE COURT PENDING EXPIRATION OR TERMINATION OF THE PERIOD  OF
PROBATION.
  (B)  THE  PROBATION  SERVICE SHALL SUPERVISE THE RESPONDENT DURING THE
PERIOD OF SUCH LEGAL JURISDICTION.

S. 3831                             4

  (C) A respondent [is] brought before the court for failure  to  comply
with  reasonable  terms  and  conditions of an order of probation issued
under SECTION SEVEN HUNDRED FIFTY-SEVEN OF this article [and if,]  SHALL
BE  SUBJECT TO SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS ARTICLE. IF,
after  hearing PURSUANT TO SUCH SECTION, the court [is satisfied] DETER-
MINES by competent proof that the respondent without just  cause  failed
to  comply  with  such  terms  and conditions, the court may ADJOURN THE
MATTER FOR A NEW DISPOSITIONAL HEARING IN  ACCORDANCE  WITH  SUBDIVISION
(B)  OR  (C)  OF  SECTION  SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. THE
COURT MAY revoke the order of probation and proceed to  make  any  order
that  might  have  been  made  at  the  time  the order of probation was
entered.
  S 8. Section 779-a of the family court act, as amended by chapter  309
of the laws of 1996, is amended to read as follows:
  S  779-a.  [Declaration of delinquency concerning juvenile delinquents
and persons in need of supervision.] PETITION AND HEARING  ON  VIOLATION
OF ORDER OF PROBATION OR SUSPENDED JUDGEMENT. (A) If, at any time during
the  period  of  [a  disposition  of] probation, the [court] PETITIONER,
PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause
to believe the respondent has violated a condition of  the  disposition,
[it] THE PETITIONER, PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY
may  [declare the respondent delinquent and] file a [written declaration
of delinquency.   Upon such filing, the  respondent  shall  be  declared
delinquent of his disposition of probation and such disposition shall be
tolled. The] VIOLATION PETITION.
  (B)  THE  PETITION  MUST BE VERIFIED AND SUBSCRIBED BY THE PETITIONER,
PROBATION SERVICE OR THE APPROPRIATE PRESENTMENT  AGENCY.  THE  PETITION
MUST  SPECIFY  THE  CONDITION  OR CONDITIONS OF THE ORDER VIOLATED AND A
REASONABLE DESCRIPTION OF THE DATE, TIME, PLACE AND MANNER IN WHICH  THE
VIOLATION  OCCURRED.  NON-HEARSAY ALLEGATIONS OF THE FACTUAL PART OF THE
PETITION OR OF ANY SUPPORTING DEPOSITIONS MUST ESTABLISH, IF TRUE, EVERY
VIOLATION CHARGED.
  (C) UPON THE FILING OF A VIOLATION  PETITION,  THE  court  [then  must
promptly  take  reasonable and appropriate action] SHALL ISSUE A SUMMONS
OR WARRANT IN ACCORDANCE WITH SECTION SEVEN HUNDRED TWENTY-FIVE OF  THIS
ARTICLE  to cause the respondent to appear before [it for the purpose of
enabling] the court [to make a final determination with respect  to  the
alleged delinquency. The]. WHERE THE RESPONDENT IS ON PROBATION PURSUANT
TO  SECTION  SEVEN  HUNDRED  FIFTY-SEVEN  OF  THIS ARTICLE, THE time for
prompt court action shall not be construed against the probation service
when the respondent has absconded from  probation  supervision  and  the
respondent's whereabouts are unknown. The court must be notified prompt-
ly of the circumstances of any such probationers.
  (D)  IF A PETITION IS FILED UNDER SUBDIVISION (A) OF THIS SECTION, THE
PERIOD OF PROBATION OR SUSPENDED JUDGMENT PRESCRIBED  BY  SECTION  SEVEN
HUNDRED FIFTY-FIVE OR SEVEN HUNDRED FIFTY-SEVEN OF THIS ARTICLE SHALL BE
INTERRUPTED  AS  OF  THE DATE OF THE FILING OF THE PETITION. SUCH INTER-
RUPTION SHALL CONTINUE UNTIL A FINAL DETERMINATION OF  THE  PETITION  OR
UNTIL  SUCH TIME AS THE RESPONDENT REACHES THE MAXIMUM AGE OF ACCEPTANCE
INTO PLACEMENT WITH THE COMMISSIONER OF SOCIAL SERVICES.  IF  THE  COURT
DISMISSES  THE  VIOLATION  PETITION, THE PERIOD OF INTERRUPTION SHALL BE
CREDITED TO THE PERIOD OF PROBATION OR SUSPENDED JUDGMENT.
  (E) HEARING ON VIOLATION. (I) THE COURT MAY NOT  REVOKE  AN  ORDER  OF
PROBATION  OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT
PROOF THAT THE RESPONDENT HAS VIOLATED A CONDITION OF SUCH ORDER WITHOUT
JUST CAUSE AND THAT THE RESPONDENT HAS HAD AN OPPORTUNITY TO  BE  HEARD.

S. 3831                             5

THE RESPONDENT IS ENTITLED TO A HEARING PROMPTLY AFTER A VIOLATION PETI-
TION HAS BEEN FILED. THE RESPONDENT IS ENTITLED TO COUNSEL AT ALL STAGES
OF  THE PROCEEDING AND MAY NOT WAIVE REPRESENTATION BY COUNSEL EXCEPT AS
PROVIDED IN SECTION TWO HUNDRED FORTY-NINE-A OF THIS ACT.
  (II)  AT  THE  TIME OF THE RESPONDENT'S FIRST APPEARANCE FOLLOWING THE
FILING OF A VIOLATION PETITION, THE COURT MUST:
  (A) ADVISE THE RESPONDENT OF THE CONTENTS OF THE PETITION AND  FURNISH
A COPY TO THE RESPONDENT;
  (B) ADVISE THE RESPONDENT THAT HE OR SHE IS ENTITLED TO COUNSEL AT ALL
STAGES OF A PROCEEDING UNDER THIS SECTION AND APPOINT AN ATTORNEY PURSU-
ANT  TO  SECTION TWO HUNDRED FORTY-NINE OF THIS ACT IF INDEPENDENT LEGAL
REPRESENTATION IS NOT AVAILABLE TO THE RESPONDENT.  IF PRACTICABLE,  THE
COURT  SHALL APPOINT THE SAME ATTORNEY WHO REPRESENTED THE RESPONDENT IN
THE ORIGINAL PROCEEDINGS UNDER THIS ARTICLE;
  (C) DETERMINE WHETHER THE RESPONDENT SHOULD BE  RELEASED  OR  DETAINED
PURSUANT TO SECTION SEVEN HUNDRED TWENTY OF THIS ARTICLE; AND
  (D)  ASK THE RESPONDENT WHETHER HE OR SHE WISHES TO MAKE ANY STATEMENT
WITH RESPECT TO THE VIOLATION. IF THE RESPONDENT MAKES A STATEMENT,  THE
COURT  MAY  ACCEPT  IT  AND  BASE  ITS  DECISION UPON THE STATEMENT. THE
PROVISIONS OF SECTION SEVEN HUNDRED FORTY-THREE OF  THIS  ARTICLE  SHALL
APPLY  IN  DETERMINING  WHETHER  A  STATEMENT SHOULD BE ACCEPTED. IF THE
COURT DOES NOT ACCEPT THE STATEMENT OR IF THE RESPONDENT DOES NOT MAKE A
STATEMENT, THE COURT SHALL CONDUCT A HEARING.
  (III) UPON REQUEST, THE COURT SHALL GRANT A REASONABLE ADJOURNMENT  TO
THE RESPONDENT TO PREPARE FOR THE HEARING.
  (IV) AT THE HEARING, THE COURT MAY RECEIVE ANY RELEVANT, COMPETENT AND
MATERIAL  EVIDENCE. THE RESPONDENT MAY CROSS-EXAMINE WITNESSES AND PRES-
ENT EVIDENCE ON HIS OR HER OWN BEHALF. THE COURT'S DETERMINATION MUST BE
BASED UPON COMPETENT EVIDENCE.
  (V) AT THE CONCLUSION OF THE HEARING, THE COURT MAY ADJOURN THE MATTER
FOR A NEW DISPOSITIONAL HEARING IN ACCORDANCE WITH  SUBDIVISION  (B)  OR
(C)  OF  SECTION SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. THE COURT MAY
REVOKE, CONTINUE OR MODIFY THE ORDER OF PROBATION OR SUSPENDED JUDGMENT.
IF THE COURT REVOKES THE ORDER, IT SHALL ORDER A  DIFFERENT  DISPOSITION
PURSUANT  TO SUBDIVISION ONE OF SECTION SEVEN HUNDRED FIFTY-FOUR OF THIS
ARTICLE AND SHALL MAKE FINDINGS IN ACCORDANCE WITH  SUBDIVISION  TWO  OF
SUCH  SECTION.    IF  THE  COURT  CONTINUES  THE  ORDER  OF PROBATION OR
SUSPENDED JUDGMENT, IT SHALL DISMISS THE PETITION OF VIOLATION.
  S 9. This act shall take effect on the ninetieth day  after  it  shall
have  become  a  law and shall apply to orders of adjournment in contem-
plation of dismissal issued and petitions for violations  of  probation,
conditional  discharge  and  suspended  judgment  filed on or after such
effective date.

2013-S3831A (ACTIVE) - Details

See Assembly Version of this Bill:: A2602
Current Committee:: Senate Rules
Law Section:: Family Court Act
Laws Affected:: Amd §§315.3, 360.2, 735, 776, 779 & 779-a, add §743, Fam Ct Act
Versions Introduced in Other Legislative Sessions:: 2011-2012: S7581, A10520
2015-2016: S5286

2013-S3831A (ACTIVE) - Summary

Relates to actions in contemplation of dismissal in juvenile delinquency and persons in need of supervision cases.

2013-S3831A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S3831A      REVISED MEMO 05/20/13

TITLE OF BILL:  An act to amend the family court act, in relation to
adjudication, dispositional and violation procedures in juvenile
delinquency and persons in need of supervision cases

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

Significant gaps exist in the procedural framework governing juvenile
delinquency (ID) and persons in need of supervision (PINS) cases, each
in the area of violations of court orders. Further, a procedural gap
is evident in the PINS statutory framework, as has repeatedly been
identified by appellate courts. This measure would eliminate these
gaps by clarifying applicable procedures in cases of alleged
violations of adjournments in contemplation of dismissal (ACD's),
orders of probation, orders of placement and orders of conditional
discharge in 31) proceedings and with respect to allocutions for
admissions and violations of suspended judgments and orders of
probation in PINS cases.

First, Article 3 of the Family Court Act is silent as to procedures to
he followed and the threshold showing required to establish a
violation of the conditions of an ACD sufficient to restore a case to
the calendar. It likewise is silent regarding whether an ACED

violation should trigger either a fact-finding or dispositional
hearing, Subdivision one of section 315.3 simply provides that "Ninon
ex parte motion by the presentment agency, or upon the court's own
motion, made at the time the order is issued or at any time during its
duration, the "family] court may restore the matter to the calendar."

In Matter of Edwin L, 88 N.Y.2d 593 (1996), the Court of Appeals
declined to incorporate a specific hearing requirement for violations
of conditions in cases adjourned in contemplation of dismissal into
Article 3 in the absence of explicit legislation. The Court stated:

We hold that the requirements of due process are satisfied when a
Family Court determines, after conducting an inquiry into the
allegations of the violation petition, and providing the juvenile with
an opportunity to respond to those allegations, that there is a
legitimate basis for concluding that the juvenile has violated a
condition of an ACD order and states the reasons, on the record for
reaching that determination.

88 N.Y.2d. at 603. Noting that the scope of the hearing will vary
according to the circumstances of particular cases, the Court left
determination of the degree of formality required to the discretion of
the Family Court. It did, however. assume, in the absence of Statutory
guidance, that a violation petition would he filed, providing notice
to the juvenile of the violation, that the juvenile would be given an
opportunity to respond to the petition with or without a hearing, and
that hearsay evidence would be admissible to establish the allegations
of the petition.

This measure codifies Mailer of Edwin L. with the exception of the
authorization of hearsay evidence, and provides needed amplification


of the applicable procedures. It requires a verified petition, to be
served on the respondent juvenile, for restoration to the calendar of
a JD matter adjourned in contemplation of dismissal and provides the
respondent with an opportunity to respond to the motion. Filling a gap
in the Family Court Act, the measure authorizes Family Court to order
that respondent juvenile be detained and provides for an expedited
determination of the violation petition in such cases, consistent with
the criteria and time frames applicable in other detention cases. If
the petition to restore the matter to the calendar is sustained, the
case would be set down for a fact-finding or dispositional hearing,
depending upon whether the matter had been adjourned in contemplation
of dismissal before or after entry of a fact-finding order. Similar to
the provision regarding probation violations (Family Court Act
360.2(4), (5)), the measure further provides that the period of the
ACD is to be tolled during pendency of the petition, and that, if the
petition to restore the matter to the calendar is dismissed, the
period during which the petition was pending is to be credited to the
period of adjournment in contemplation of dismissal.

Second, the measure effectuates the apparent legislative intention to
provide identical provisions tolling orders of probation and
conditional discharge while violation proceedings are pending. While
sections 360.2 and 360.3 articulate a procedure governing violations
of both probation and conditional discharge, references to conditional
discharge appear inadvertently to have been omitted from two
subdivisions of those sections. In Matter of Donald MM; 231 A.D.2d 810
(3rd Dept., 1996), Ive. app denied. 89 N.Y.2d 804 (1996), the
Appellate Division, Third Department, read into section 360.2(4) of
the Family Court Act a requirement that the period of a conditional
discharge be tolled during pendency of a violation petition, as in
probation violation cases. The Court held that omission of the
requirement was unintentional, as "it is apparent from a reading of
all provisions of this statute that the Legislature did not intend for
probationary periods and conditional discharges to be treated
differently." This measure incorporates this tolling requirement into
section 360.2(4) of the Family Court Act. Using the same rationale, it
remedies a similar gap in subdivision five of the same section, which
requires credit for the period of pendency of a violation petition to
be given in cases in which the violation has not been sustained.

With respect to PINS proceedings, the measure adds a new section 743
to the Family Court Act, establishing a judicial allocution procedure
for accepting admissions in PENS cases analogous to the allocution
required in JD cases (Family Court Act § 321.3). The measure would
require Family Court, before accepting an admission in a PINS case, to
ascertain that the juvenile respondent committed the act or acts as to
which an admission is being entered, is voluntarily waiving his or her
right to a hearing and is aware of the dispositional alternatives that
may be ordered as a result of the adjudication that is the likely
consequence of the admission. Additionally, the measure corrects an
apparently inadvertent omission of a phrase in subdivision (h) of
section 735 of the Family Court Act.

The absence of an explicit allocution procedure in the PINS statute
has generated extensive appellate litigation. In Matter of Tabitha
L.L.. 87 N.Y.2d 1009 (1996). the Court of Appeals held that it would
be inappropriate to incorporate section 321.3 of the Family Court Act


into Article 7 in the absence of specific legislative authorization.
It did not determine whether an allocution procedure is
constitutionally required, since that issue was not preserved for
appellate review. In a subsequent case, Matter of Tabitha E., 271
A.D.2d 719, 720 (3rd Dept., 2000), however, the Appellate Division,
Third Department, held it to be reversible error for Family Court to
accept an admission in a PINS proceeding without first advising
respondent of her right to remain silent. Accord, Matter of Ashley R.,
42 A.D.3d 689 (3d Dept.. 2007); Matter of Marquis S., 26 A.D.3d 757
(4th Dept.. 2006); Matter of Steven Z., 19 A.D.3d 783 (3d Dept.,
2005); Matter of Matthew RR.. 9 A.D.3d 514 (3d Dept.., 2004); Matter
of Wichole A.. 300 A.D.2d 947 (3rd Dept., 2002); Matter of Jodi VV.,
295 A.D.2d 659 (3rd Dept.. 2002); Matter of Shaun U 288 A.D.2d 708
(3rd Dept., 2001). We believe that considerations of due process
-equally compelling in PINS as in JD cases -- militate in favor of
equivalent protections and, therefore, urge the Legislature to enact a
provision for PINS cases comparable to the allocution requirement
applicable to JD proceedings.

The final two amendments to the PINS statutes would delineate
procedures for violations of orders of suspended judgment and
violations of probation, drawing upon existing JD procedures. See
Family Court Act §§ 360.2, 360.3. Violations of both orders of
probation and suspended judgment would require the filing of a
verified petition, a hearing at which the juvenile is represented by
counsel and a determination by competent proof that the juvenile
committed the violation charged in an important respect and Without
just cause. Periods of dispositions of suspended judgment and
probation would be tolled during the pendency of the violation
petition. The juvenile must be advised of his or her rights. See,
e.g., Matter of Jessica GG., 19 A.D.3d 765 (3d Dept.. 2005); Matter of
Ashley A., 296 A.D.2d 627 (3rd Dept., 2002).

Upon finding a violation, the Family Court would be authorized to
adjourn the matter for a new dispositional hearing in accordance with
subdivision (b) or ( c) of section 749 of the Family Court Act or, at
minimum, provide the juvenile with an opportunity to present evidence.
See Matter of Casey W., 3 A.D.3d 785 (3d Dept.. 2004); Matter of
Josiah RR , 277 A.D.2d 654 (3rd Dept. 2000). The court would be
permitted to revoke, continue or modify the order of probation or
suspended judgment. If the order is revoked, the court must order a
different dispositional alternative enumerated in section 754(a), to
state the reasons for its determination and to make the Findings
required by section 754(b) of the Family Court Act.  See Matter of
Nathaniel JJ, 265 A.D.2d 660 (3rd Dept., 1999). after remittitur, 270
A.D.2d 783 (3rd Dept., 2000) (PINS probation violation matter remanded
twice for specific findings, first with respect to the reasons for the
disposition and second as to the 16-year old respondent's needs, if
any, for independent living services).* In matters, such as Nathaniel
J.J., in which the juvenile was placed pursuant to Family Court Act
756, these findings would be mandated as well by the Federal and State
Adoption and Safe Families Acts (see Public. Law 105-89; L. 1999. c.7;
L. 2000, c. 145).

This measure, which would have no fiscal impact upon the State, would
take effect 90 days after becoming a law.


2013 Legislative History-
Senate 3831 (Sen. Gallivan) (Children & Families)
Assembly 2602-A (M. of A. Paulin) (Children & Families)

2012 Legislative History:

Senate 7581 (Sen. Gallivan) (Rules)
Assembly 10520 (Committee on Rules, at request of M. of A. Paulin, et
al) (Codes)

* The final appeal in Matter of Nathanie1 JJ, 274 A.D.2d 611 (3rd
Dept., 2000) was dismissed as moot, since the appellant had been
released from placement.

2013-S3831A (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 3831--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 21, 2013
                               ___________

Introduced by Sen. GALLIVAN -- (at request of the Office of Court Admin-
  istration)  --  read twice and ordered printed, and when printed to be
  committed to the Committee  on  Children  and  Families  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN  ACT  to  amend  the  family  court act, in relation to adjudication,
  dispositional and violation procedures  in  juvenile  delinquency  and
  persons in need of supervision cases

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 1 of section 315.3 of the family court act,  as
amended  by  chapter  535  of  the  laws  of 2011, is amended to read as
follows:
  1. Except where the petition alleges that the respondent has committed
a designated felony act, the court may at any time prior to the entering
of a finding under section 352.1 and with the consent of the  respondent
order  that the proceeding be "adjourned in contemplation of dismissal".
An adjournment in contemplation of dismissal is an  adjournment  of  the
proceeding,  for a period not to exceed six months, with a view to ulti-
mate dismissal of the petition in furtherance of justice.  Upon  issuing
such  an  order,  providing such terms and conditions as the court deems
appropriate, the court must release the respondent. The court may, as  a
condition  of  an  adjournment  in  contemplation of dismissal order, in
cases where the record indicates that the  consumption  of  alcohol  may
have  been  a  contributing factor, require the respondent to attend and
complete an alcohol  awareness  program  established  pursuant  to  [of]
subdivision  (a) of section [19.07] 19.25 of the mental hygiene law. The
court may, as a condition of an adjournment in contemplation of dismiss-
al order, in cases where the record indicates that the respondent is  an
eligible  person as defined in section four hundred fifty-eight-l of the
social services law and has allegedly committed an eligible  offense  as

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03050-07-3

S. 3831--A                          2

defined in such section, direct the respondent to attend and complete an
education  reform  program  established pursuant to section four hundred
fifty-eight-l of the social services law. [Upon ex parte motion  by  the
presentment agency, or upon the court's own motion, made at the time the
order is issued or at] AT any time during [its] THE duration OF AN ORDER
ISSUED PURSUANT TO THIS SECTION, the court may restore the matter to the
calendar  IN  ACCORDANCE  WITH  SUBDIVISION FOUR OF THIS SECTION. If the
proceeding is not restored, the petition is, at the  expiration  of  the
order,  deemed  to  have  been  dismissed by the court in furtherance of
justice.
  S 2. Section 315.3 of the family court act is amended by adding a  new
subdivision 4 to read as follows:
  4.  AN APPLICATION TO RESTORE THE MATTER TO THE CALENDAR IN ACCORDANCE
WITH SUBDIVISION ONE OF THIS SECTION SHALL BE IN THE FORM OF A  VERIFIED
PETITION  WHICH  SHALL  BE  SERVED  ON THE RESPONDENT, WHO SHALL HAVE AN
OPPORTUNITY TO BE HEARD WITH RESPECT THERETO. THE PETITION  SHALL  STATE
THE FACTUAL BASIS FOR THE RESTORATION, INCLUDING THE CONDITION OR CONDI-
TIONS  ALLEGED  TO  HAVE  BEEN VIOLATED AND THE TIME, PLACE AND SPECIFIC
MANNER IN WHICH SUCH VIOLATION OCCURRED. THE RESPONDENT IS  ENTITLED  TO
COUNSEL  AT ALL STAGES OF A PROCEEDING UNDER THIS SECTION, AND THE COURT
SHALL ADVISE THE RESPONDENT OF SUCH RIGHT AT THE INITIAL  APPEARANCE  ON
ANY  PETITION  FILED  HEREUNDER.  UPON  REQUEST, THE COURT SHALL GRANT A
REASONABLE ADJOURNMENT TO THE RESPONDENT IN  ORDER  TO  RESPOND  TO  THE
PETITION  AND TO PREPARE FOR A HEARING. IF THE COURT DETERMINES THAT THE
RESPONDENT SHOULD BE DETAINED IN ACCORDANCE WITH SUBDIVISIONS THREE  AND
FIVE  OF  SECTION 320.5, THE COURT SHALL HEAR AND DETERMINE THE PETITION
WITHIN THREE DAYS; PROVIDED, HOWEVER, THAT FOR  GOOD  CAUSE  SHOWN,  THE
COURT  MAY  ADJOURN  THE MATTER FOR NOT MORE THAN THREE ADDITIONAL DAYS.
IF, AFTER HEARING THE PETITION, THE COURT  FINDS  THAT  THE  PRESENTMENT
AGENCY  HAS  DEMONSTRATED BY COMPETENT PROOF THAT ONE OR MORE CONDITIONS
OF THE ORDER HAVE BEEN VIOLATED IN AN IMPORTANT RESPECT  AND  THAT  SUCH
VIOLATION  OR  VIOLATIONS WERE WITHOUT JUST CAUSE, THE COURT SHALL STATE
ON THE RECORD THE REASONS FOR SUCH DETERMINATION,  GRANT  THE  PETITION,
RESTORE  THE  MATTER  TO  THE CALENDAR AND SCHEDULE THE PROCEEDING FOR A
FACT-FINDING HEARING  OR  DISPOSITIONAL  HEARING,  AS  APPLICABLE.  UPON
FILING  THE  PETITION, THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF
DISMISSAL SHALL BE INTERRUPTED. SUCH INTERRUPTION SHALL  CONTINUE  UNTIL
SUCH  TIME AS THE COURT DETERMINES THE PETITION. IF THE COURT DENIES THE
PETITION, THE PERIOD DURING WHICH THE  PETITION  WAS  PENDING  SHALL  BE
CREDITED TO THE PERIOD OF THE ADJOURNMENT IN CONTEMPLATION OF DISMISSAL.
  S 3. Subdivisions 4 and 5 of section 360.2 of the family court act, as
added  by  chapter  920  of  the  laws  of  1982, are amended to read as
follows:
  4. If a petition  is  filed  under  subdivision  one,  the  period  of
probation  as  prescribed  by  section 353.2 OR CONDITIONAL DISCHARGE AS
PRESCRIBED BY SECTION 353.1 shall be interrupted as of the date  of  the
filing  of  the petition. Such interruption shall continue until a final
determination as to the petition has been made by the court pursuant  to
a  hearing  held  in accordance with section 360.3 or until such time as
the respondent reaches the maximum age of acceptance  into  [a  division
for youth] AN OFFICE OF CHILDREN AND FAMILY SERVICES facility.
  5. If the court determines THAT there was no violation of probation OR
CONDITIONAL  DISCHARGE  by  the  respondent,  the period of interruption
shall be credited to the period of probation OR  CONDITIONAL  DISCHARGE,
AS APPLICABLE.

S. 3831--A                          3

  S  4. Subdivision (h) of section 735 of the family court act, as added
by section 7 of part E of chapter 57 of the laws of 2005, is amended  to
read as follows:
  (h)  No  statement made to the designated lead agency or to any agency
or organization to which the potential  respondent  HAS  BEEN  REFERRED,
prior  to the filing of the petition, or if the petition has been filed,
prior to the time the respondent has  been  notified  that  attempts  at
diversion  will  not  be  made  or have been terminated, or prior to the
commencement of a fact-finding hearing if attempts at diversion have not
terminated previously, may be admitted into evidence at  a  fact-finding
hearing or, if the proceeding is transferred to a criminal court, at any
time prior to a conviction.
  S  5.  The  family court act is amended by adding a new section 743 to
read as follows:
  S 743. ACCEPTANCE OF AN ADMISSION. (A) BEFORE ACCEPTING AN  ADMISSION,
THE  COURT  SHALL  ADVISE  THE  RESPONDENT  OF  HIS  OR  HER  RIGHT TO A
FACT-FINDING HEARING. THE COURT SHALL ALSO ASCERTAIN THROUGH  ALLOCUTION
OF  THE  RESPONDENT  AND HIS OR HER PARENT OR PERSON LEGALLY RESPONSIBLE
FOR HIS OR HER CARE, IF PRESENT, THAT THE RESPONDENT:
  (I) COMMITTED THE ACT OR ACTS TO WHICH AN ADMISSION IS BEING ENTERED;
  (II) IS VOLUNTARILY WAIVING HIS OR HER RIGHT TO A  FACT-FINDING  HEAR-
ING; AND
  (III) IS AWARE OF THE POSSIBLE SPECIFIC DISPOSITIONAL ORDERS.
THE PROVISIONS OF THIS SUBDIVISION SHALL NOT BE WAIVED.
  (B) UPON ACCEPTANCE OF AN ADMISSION, THE COURT SHALL STATE THE REASONS
FOR  ITS  DETERMINATION  AND SHALL ENTER A FACT-FINDING ORDER. THE COURT
SHALL SCHEDULE A DISPOSITIONAL HEARING IN  ACCORDANCE  WITH  SUBDIVISION
(B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS PART.
  S  6.  Section  776  of  the  family  court  act is amended to read as
follows:
  S 776. Failure to comply with terms and conditions of suspended  judg-
ment.  [If  a] A respondent [is] brought before the court for failure to
comply with reasonable terms and conditions of [a] AN ORDER OF suspended
judgment [issued under this article and if,] SHALL BE SUBJECT TO SECTION
SEVEN HUNDRED SEVENTY-NINE-A OF THIS PART. IF, after hearing, the  court
[is satisfied] DETERMINES by competent proof that the respondent WITHOUT
JUST  CAUSE  failed  to comply with such terms and conditions, the court
may ADJOURN THE MATTER FOR A NEW  DISPOSITIONAL  HEARING  IN  ACCORDANCE
WITH  SUBDIVISION (B) OR (C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS
ARTICLE. THE COURT MAY revoke the [suspension] ORDER of SUSPENDED  judg-
ment and proceed to make any order that might have been made at the time
judgment was suspended.
  S  7.  Section  779  of  the  family  court  act is amended to read as
follows:
  S 779. [Failure] JURISDICTION AND SUPERVISION OF RESPONDENT PLACED  ON
PROBATION;  FAILURE  to  comply  with terms of probation.   [If a] (A) A
RESPONDENT WHO IS PLACED ON PROBATION IN ACCORDANCE WITH  SECTION  SEVEN
HUNDRED  FIFTY-SEVEN OF THIS ARTICLE SHALL REMAIN UNDER THE LEGAL JURIS-
DICTION OF THE COURT PENDING EXPIRATION OR TERMINATION OF THE PERIOD  OF
PROBATION.
  (B)  THE  PROBATION  SERVICE SHALL SUPERVISE THE RESPONDENT DURING THE
PERIOD OF SUCH LEGAL JURISDICTION.
  (C) A respondent [is] brought before the court for failure  to  comply
with  reasonable  terms  and  conditions of an order of probation issued
under SECTION SEVEN HUNDRED FIFTY-SEVEN OF this article [and if,]  SHALL
BE  SUBJECT TO SECTION SEVEN HUNDRED SEVENTY-NINE-A OF THIS ARTICLE. IF,

S. 3831--A                          4

after hearing PURSUANT TO SUCH SECTION, the court [is satisfied]  DETER-
MINES  by  competent proof that the respondent without just cause failed
to comply with such terms and conditions,  the  court  may  ADJOURN  THE
MATTER  FOR  A  NEW DISPOSITIONAL HEARING IN ACCORDANCE WITH SUBDIVISION
(B) OR (C) OF SECTION SEVEN HUNDRED  FORTY-NINE  OF  THIS  ARTICLE.  THE
COURT  MAY  revoke  the order of probation and proceed to make any order
that might have been made  at  the  time  the  order  of  probation  was
entered.
  S  8. Section 779-a of the family court act, as amended by chapter 309
of the laws of 1996, is amended to read as follows:
  S 779-a. [Declaration of delinquency concerning  juvenile  delinquents
and  persons  in need of supervision.] PETITION AND HEARING ON VIOLATION
OF ORDER OF PROBATION OR SUSPENDED JUDGMENT. (A) If, at any time  during
the  period  of  [a  disposition  of] probation, the [court] PETITIONER,
PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause
to believe the respondent has violated a condition of  the  disposition,
[it] THE PETITIONER, PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY
may  [declare the respondent delinquent and] file a [written declaration
of delinquency.   Upon such filing, the  respondent  shall  be  declared
delinquent of his disposition of probation and such disposition shall be
tolled. The] VIOLATION PETITION.
  (B)  THE  PETITION  MUST BE VERIFIED AND SUBSCRIBED BY THE PETITIONER,
PROBATION SERVICE OR THE APPROPRIATE PRESENTMENT  AGENCY.  THE  PETITION
MUST  SPECIFY  THE  CONDITION  OR CONDITIONS OF THE ORDER VIOLATED AND A
REASONABLE DESCRIPTION OF THE DATE, TIME, PLACE AND SPECIFIC  MANNER  IN
WHICH  THE  VIOLATION  OCCURRED.  NON-HEARSAY ALLEGATIONS OF THE FACTUAL
PART OF THE PETITION OR OF ANY SUPPORTING DEPOSITIONS MUST ESTABLISH, IF
TRUE, EVERY VIOLATION CHARGED.
  (C) UPON THE FILING OF A VIOLATION PETITION,  THE  court  [then]  must
promptly  take reasonable and appropriate action to cause the respondent
to appear before it for the purpose of enabling  the  court  to  make  a
final determination with respect to the alleged delinquency. [The] WHERE
THE  RESPONDENT IS ON PROBATION PURSUANT TO SECTION SEVEN HUNDRED FIFTY-
SEVEN OF THIS ARTICLE, THE time for prompt court  action  shall  not  be
construed against the probation service when the respondent has abscond-
ed  from  probation  supervision  and  the  respondent's whereabouts are
unknown. The court must be notified promptly of the circumstances of any
such probationers.
  (D) IF A PETITION IS FILED UNDER SUBDIVISION (A) OF THIS SECTION,  AND
THE  PETITION  SATISFIES  THE  REQUIREMENTS  OF  SUBDIVISION (B) OF THIS
SECTION, THE PERIOD OF PROBATION OR  SUSPENDED  JUDGMENT  PRESCRIBED  BY
SECTION  SEVEN  HUNDRED  FIFTY-FIVE OR SEVEN HUNDRED FIFTY-SEVEN OF THIS
ARTICLE SHALL BE INTERRUPTED AS OF THE DATE OF THE FILING OF  THE  PETI-
TION.  SUCH  INTERRUPTION  SHALL CONTINUE UNTIL A FINAL DETERMINATION OF
THE PETITION OR UNTIL SUCH TIME AS THE RESPONDENT  REACHES  THE  MAXIMUM
AGE  OF  ACCEPTANCE  INTO  PLACEMENT  WITH  THE  COMMISSIONER  OF SOCIAL
SERVICES. IF THE COURT DISMISSES THE VIOLATION PETITION, THE  PERIOD  OF
INTERRUPTION  SHALL  BE CREDITED TO THE PERIOD OF PROBATION OR SUSPENDED
JUDGMENT.
  (E) HEARING ON VIOLATION. (I) THE COURT MAY NOT  REVOKE  AN  ORDER  OF
PROBATION  OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT
PROOF THAT THE RESPONDENT HAS VIOLATED A CONDITION OF SUCH ORDER  IN  AN
IMPORTANT RESPECT AND WITHOUT JUST CAUSE AND THAT THE RESPONDENT HAS HAD
AN  OPPORTUNITY  TO  BE HEARD.   THE RESPONDENT IS ENTITLED TO A HEARING
PROMPTLY AFTER A VIOLATION PETITION HAS BEEN FILED.  THE  RESPONDENT  IS
ENTITLED  TO  COUNSEL  AT ALL STAGES OF THE PROCEEDING AND MAY NOT WAIVE

S. 3831--A                          5

REPRESENTATION BY COUNSEL EXCEPT AS  PROVIDED  IN  SECTION  TWO  HUNDRED
FORTY-NINE-A OF THIS ACT.
  (II)  AT  THE  TIME OF THE RESPONDENT'S FIRST APPEARANCE FOLLOWING THE
FILING OF A VIOLATION PETITION, THE COURT MUST:
  (A) ADVISE THE RESPONDENT OF THE CONTENTS OF THE PETITION AND  FURNISH
A COPY TO THE RESPONDENT;
  (B) ADVISE THE RESPONDENT THAT HE OR SHE IS ENTITLED TO COUNSEL AT ALL
STAGES OF A PROCEEDING UNDER THIS SECTION AND APPOINT AN ATTORNEY PURSU-
ANT  TO  SECTION TWO HUNDRED FORTY-NINE OF THIS ACT IF INDEPENDENT LEGAL
REPRESENTATION IS NOT AVAILABLE TO THE RESPONDENT.    IF  POSSIBLE,  THE
COURT  SHALL APPOINT THE SAME ATTORNEY WHO REPRESENTED THE RESPONDENT IN
THE ORIGINAL PROCEEDINGS UNDER THIS ARTICLE; AND
  (C) DETERMINE WHETHER THE RESPONDENT SHOULD BE  RELEASED  OR  DETAINED
PURSUANT TO SECTION SEVEN HUNDRED TWENTY OF THIS ARTICLE.
  (III)  UPON REQUEST, THE COURT SHALL GRANT A REASONABLE ADJOURNMENT TO
THE RESPONDENT TO PREPARE FOR THE HEARING.
  (IV) AT THE HEARING, THE COURT MAY RECEIVE ANY EVIDENCE THAT IS  RELE-
VANT,   COMPETENT  AND  MATERIAL.    THE  RESPONDENT  MAY  CROSS-EXAMINE
WITNESSES AND PRESENT EVIDENCE ON HIS OR HER  OWN  BEHALF.  THE  COURT'S
DETERMINATION MUST BE BASED UPON COMPETENT EVIDENCE.
  (V) AT THE CONCLUSION OF THE HEARING, THE COURT MAY ADJOURN THE MATTER
FOR  A  NEW  DISPOSITIONAL HEARING IN ACCORDANCE WITH SUBDIVISION (B) OR
(C) OF SECTION SEVEN HUNDRED FORTY-NINE OF THIS ARTICLE. THE  COURT  MAY
REVOKE, CONTINUE OR MODIFY THE ORDER OF PROBATION OR SUSPENDED JUDGMENT.
IF  THE  COURT REVOKES THE ORDER, IT SHALL ORDER A DIFFERENT DISPOSITION
PURSUANT TO SUBDIVISION ONE OF SECTION SEVEN HUNDRED FIFTY-FOUR OF  THIS
ARTICLE  AND  SHALL  MAKE FINDINGS IN ACCORDANCE WITH SUBDIVISION TWO OF
SUCH SECTION.   IF  THE  COURT  CONTINUES  THE  ORDER  OF  PROBATION  OR
SUSPENDED JUDGMENT, IT SHALL DISMISS THE PETITION OF VIOLATION.
  S  9.  This  act shall take effect on the ninetieth day after it shall
have become a law and shall apply to orders of  adjournment  in  contem-
plation  of  dismissal issued and petitions for violations of probation,
conditional discharge and suspended judgment  filed  on  or  after  such
effective date.

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