Relates to dispositional and violation procedures in juvenile delinquency cases and cases concerning persons in need.
Ayes (6): Montgomery, Schneiderman, Huntley, Duane, McDonald, Marcellino
BILL NUMBER: S3876
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. Accordingly, this measure would amend the Family Court Act to 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 the procedures to be followed and the threshold showing required to establish a violation of the conditions of an ACD sufficient to restore the case to the calendar. It is likewise silent regarding whether an ACD violation should trigger either a fact-finding or dispositional hearing.Subdivision one of section 315.3 of the Family Court Act 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 of the Family Court Act 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 a 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 the holding in Matter of Edwin L. and provides needed amplification of the applicable procedures. It requires a verified petition, which must 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, this measure authorizes Family Court to order that a 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 1224(A) (Fam. Ct., Nassau Co., 2006), the measure codifies the direction in Matter of Edwin L. that hearsay evidence be admissible. If the petition to restore the matter to the calendar is sustained, the case would be set down for a factfinding or dispositional hearing, depending upon whether the matter were 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) , this measure further provides that the period of the ACD would be tolled during the 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 would be credited to the period of the adjournment in contemplation of dismissal.
Second, this measure remedies a failure of the provisions regarding violations of orders of probation to specify the type of support for the 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. This 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, this measure effectuates the Legislature's apparent intention to provide identical provisions to toll orders of probation and conditional discharge while violation proceedings are pending. While sections 360.2 and 360.3 of the Family Court Act articulate a procedure governing violations of both probation and conditional discharge, references to conditional discharge appear to have been inadvertently 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) a requirement that the period of a conditional discharge be tolled during the 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." The instant measure incorporates this tolling requirement into subdivision four of section 360.2 of the Family Court Act. Using the same rationale, it remedies a similar gap in subdivision five of the same section, which require s credit for the period of pendency of a violation petition to be given in cases in which the violation has not been sustained.
Fourth, this measure remedies an anomaly in the juvenile delinquency placement statute. While placement with the New York State Office of Children and Family Services is tolled when a child is absent without leave and a warrant is outstanding Exec. Law §510-b(7) , no comparable provision exists with respect to placement of a child with a county Department of Social Services. Placements with DSS are often for the very same facilities as those with NYS OCFS - residential treatment facilities operated by authorized agencies under contract. Disparate treatment of placed delinquent youth should not arise out of the happenstance of who the agency contracts with for payment of the child's placement. This measure, therefore, would incorporate Executive Law §510b(7) into Article 3 of the Family Court Act and would apply it both to placements with local Departments of Social Services and with the NYS Office of Children and Family Services.
With respect to PINS proceedings, this measure also 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 juvenile delinquency 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 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.
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 AD.2d 719,720 (3rd Dept., 2000), however, the Appellate Division, Third Department, held it reversible error for Family Court to accept an admission in a PINS proceeding without first advising the respondent of her right to remain silent. Accord, Matter of Ashley R., 42 AD.3d 689 (3d Dept., 2007); Matter of Marquis 5.,26 AD.3d 757 (4th Dept., 2006); Matter of Steven Z, 19 AD.3d 783 (3d Dept., 2005); Matter of Matthew RR, 9 AD.3d 514 (3d Dept., 2004); Matter of Nichole A., 300 AD.2d 947 (3rd Dept., 2002); Matter of Jody W, 295 A.D.2d 659 (3rd Dept., 2002); Matter of Shaun V, 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, we urge the Legislature to enact a provision for PINS cases comparable to the allocution requirement applicable to juvenile delinquency proceedings.
The last two amendments to the PINS statutes in this measure would delineate procedures for violations of orders of suspended judgment and violations of probation, drawing upon existing juvenile delinquency 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 betolled during the pendency of the violation petition. The juvenile would have to 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, Family Court would be authorized to adjourn the matter for anew 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 could revoke, continue or modify the order of probation or suspended judgment. If the order is revoked, the Court would be required to 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 JJ, in which the juvenile was placed pursuant to section 756 of the Family Court Act, 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.
2008 LEGISLATIVE HISTORY :
None. New proposal.
STATE OF NEW YORK ________________________________________________________________________ 3876 2009-2010 Regular Sessions IN SENATE April 2, 2009 ___________Introduced by Sen. MONTGOMERY -- (at request of the Office of Court Administration) -- 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 237 of the laws of 1991, 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
[paragraph six-a of subdivision (a) of]section [19.07]19.25 of the mental hygiene 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 notEXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10373-01-9 S. 3876 2
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 if 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. Section 353.3 of the family court act is amended by adding a new subdivision 11 to read as follows: 11. WHERE THE RESPONDENT IS PLACED PURSUANT TO SUBDIVISION TWO OR THREE OF THIS SECTION AND IS ABSENT FROM THE FACILITY OR AUTHORIZED AGENCY WITHOUT THE CONSENT OF THE DIRECTOR OF THE FACILITY OR AGENCY, THE ABSENCE SHALL INTERRUPT THE CALCULATION OF TIME OF SUCH PLACEMENT AND SUCH INTERRUPTION SHALL CONTINUE UNTIL THE CHILD'S RETURN TO THE FACILITY OR AGENCY; PROVIDED, HOWEVER, THAT A TIMELY PERMANENCY HEARING SHALL BE HELD FOR THE RESPONDENT, NOTWITHSTANDING SUCH INTERRUPTION. ANY TIME SPENT IN DETENTION BETWEEN THE DATE OF SUCH ABSENCE WITHOUT LEAVE AND THE RETURN OF THE CHILD TO THE FACILITY OR AGENCY SHALL BE CREDITED AGAINST THE TIME OF PLACEMENT IF THE DETENTION WAS DUE TO A SURRENDER OR ARREST DUE TO THE ABSENCE, OR IF THE DETENTION WAS DUE TO AN ARREST THAT DID NOT CULMINATE IN A PETITION, ADJUDICATION OR ADJUSTMENT. S 4. 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.S. 3876 3
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. 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 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 DEALT WITH IN ACCORDANCE WITH 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 [suspen- sion]ORDER of SUSPENDED judgment 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 DEALT WITH IN ACCORDANCE WITH SECTION SEVEN HUNDRED SEVENTY-NINE-A OFS. 3876 4
THIS PART. IF, after hearing PURSUANT TO SUCH SECTION, 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 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, OR SUSPENDED JUDGMENT the [court]PETITIONER, PROBATION SERVICE OR APPROPRIATE PRESENTMENT AGENCY has reasonable cause to believe THAT 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 PURSU- ANT 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) (I) THE COURT MAY NOT REVOKE AN ORDER OF PROBATION OR SUSPENDED JUDGMENT UNLESS THE COURT HAS FOUND BY COMPETENT PROOF THAT THE RESPOND- ENT HAS VIOLATED A CONDITION OF SUCH ORDER 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 REPRESENTATION BY COUNSEL EXCEPT AS PROVIDED IN SECTION TWO HUNDRED FORTY-NINE-A OF THIS ACT.S. 3876 5
(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.