Bill S4347-2009

Provides for the time of staying, modifying or terminating family court orders in juvenile delinquency proceedings

Provides for modification or vacating of dispositional orders of the family court in juvenile delinquency proceedings in accordance with the criminal procedure law; eliminates a provision authorizing a new fact-finding hearing without the necessity of a substantial change of circumstances.





VOTE: COMMITTEE VOTE: - Children and Families - Jun 8, 2010
Ayes (4): Montgomery, Schneiderman, Huntley, Duane
Ayes W/R (1): McDonald
Nays (1): Marcellino



TITLE OF BILL : An act to amend the family court act, in relation to staying, modifying or terminating certain orders in juvenile delinquency proceedings

SUMMARY : This bill would add new subdivisions four and five to Family Court Act 355.1. In addition, it would grant Family Court judges the statutory authority to stay, modify or terminate certain orders made in juvenile delinquent proceedings. This authority would parallel existing provisions which grant such authority to judges in adult criminal proceedings.

JUSTIFICATION : Family Court Act 355.1 is currently the only section which addresses post-dispositional motions in juvenile delinquency proceedings. As such, it represents the exclusive Family Court statutory vehicle for challenging errors which are not discovered until the disposition has been completed and the time to appeal has elapsed. Although the Family Court may grant a new fact-finding or dispositional hearing under existing law, the prerequisite of a "substantial change of circumstances" cannot be met when the respondent's motion is predicted solely upon a legal defect in the original proceeding. For example, the disposition may be unauthorized or invalid thereby necessitating a new dispositional hearing. New evidence may have been violated, necessitating a new fact-finding hearing. Although in such instances where the circumstances have not changed, the respondent is justified in demanding relief. Faced with the statutory shortcoming in the current section, the courts invoked their inherent power to order new proceeding or vacate orders in the interest of justice. The ability to order such relief, when justified, should be codified in the Family Court Act. The Criminal Procedure Law includes a series of sections governing motions to vacate a criminal judgment or set aside a sentence, but similar provisions are not presently incorporated in the Family Court Act. This bill would accomplish this result in accordance with Family Court procedures. At the same time, this bill would also preserve the historic Family Court Act to modify or grant new dispositions based on substantial changes in circumstances.


EFFECTIVE DATE : Immediately.


STATE OF NEW YORK ________________________________________________________________________ 4347 2009-2010 Regular Sessions IN SENATE April 22, 2009 ___________
Introduced by Sen. KRUGER -- 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 staying, modifying or terminating certain orders in juvenile delinquency proceedings THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Section 355.1 of the family court act is amended by adding two new subdivisions 4 and 5 to read as follows: 4. AT ANY TIME AFTER THE ENTRY OF A FINDING UNDER SECTION 352.1 THE COURT MAY, UPON MOTION OF THE RESPONDENT, VACATE SUCH FINDING IN ACCORD- ANCE WITH SECTION 440.10 OF THE CRIMINAL PROCEDURE LAW. 5. AT ANY TIME AFTER THE ENTRY OF A DISPOSITIONAL ORDER UNDER SECTION 352.2 THE COURT MAY: (A) UPON MOTION OF THE RESPONDENT VACATE SUCH DISPOSITION IN ACCORD- ANCE WITH SECTION 440.20 OF THE CRIMINAL PROCEDURE LAW; OR (B) UPON MOTION OF THE PRESENTMENT AGENCY SET ASIDE SUCH DISPOSITION IN ACCORDANCE WITH SECTION 440.40 OF THE CRIMINAL PROCEDURE LAW. S 2. Subdivision 1 of section 355.1 of the family court act, as amended by chapter 398 of the laws of 1983, is amended to read as follows: 1. Upon a showing of a substantial change of circumstances, the court may on its own motion or on motion of the respondent or his parent or person responsible for his care: (a) grant a new [fact-finding or] dispositional hearing; or (b) stay execution of, set aside, modify, terminate or vacate any order issued in the course of a proceeding under this article. S 3. This act shall take effect immediately.


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