NY State Senate Bill 2013-S5311

Senate Bill S5311

2013-2014 Legislative Session

Establishes a youth court diversion program to transfer the dispositional phase of proceedings to youth courts

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Archive: Last Bill Status - In Senate Committee Codes 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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to codes
May 16, 2013	referred to codes

2013-S5311 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Criminal Procedure Law
Laws Affected:: Amd §§160.50 & 170.55, add Art 217 §§217.10 - 217.30, CP L; amd §315.3, add §316.1, Fam Ct Act

2013-S5311 (ACTIVE) - Summary

Establishes a youth court diversion program to transfer the dispositional phase of proceedings to youth courts.

2013-S5311 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5311

TITLE OF BILL:  An act to establish youth courts and authorize
criminal and family courts to transfer the dispositional phase of
proceedings to youth courts and to amend the criminal procedure law
and the family court act, in relation thereto

PURPOSE OR GENERAL IDEA OF BILL:  To establish a youth court diversion
program transfer the dispositional phase of proceedings to youth-court
in certain cases.

BACKGROUND:

Youth Courts

Many of our children are spending significant time in court, or in
school suspensions or expulsions proceedings, hindering their
educational, social and personal development. Youth courts present an
alternative to formal school disciplinary, family and criminal court
system involvement and hold youth accountable for their actions while
promoting civic engagement and positive youth development. A youth
court is a tribunal of young people who have been trained to conduct
dispositional hearings for youth who are alleged to have committed
certain lower level offenses and to determine and assign constructive
sanctions designed to restore the community, reduce recidivism, and
serve as an alternative to further formal processes.

The process is overseen by volunteer lawyers, judges, educators, law
enforcement officials or community members and youth courts can take
various forms. Models include, but are not limited to, a tribunal
presided over by an adult judge or a youth judge, or a peer tribunal.
Sanctions may be determined by either a peer jury or peer tribunal.
Sanctions typically include community service, letters of apology,
behavior-modification classes, essays and counseling. Although fewer
than 100 programs existed prior to 1990, recent surveys suggest that
more than 1,200 programs are in operation today, and more than 80
youth courts operate throughout New York state.

NYSBA Special Committee on Youth Courts

In June 2010, the New York State Bar Association formed the special
Committee on Youth Courts. The Special Committee was charged with
examining what roles the Bar Association can play in strengthening
youth courts, raising the profile and legitimacy of youth courts,
defining best practices, identifying locations where new youth courts
can be established, and developing strategies for raising funds to
enlarge the initiative.

Youth court programs have flourished in New York since 1976 despite a
lack statutory endorsement and some programs and courts have been
hesitant to accept referrals or refer cases to youth court programs
due to a lack of a clear statutory authorization. This bill provides a
framework for such referrals and assists jurisdictions in the
commencement of their own youth courts if they are so inclined.

SUMMARY OF AMENDMENTS TO STATE LAW REGARDING YOUTH COURTS


Section 1 of the bill adds a new article to the Unconsolidated Laws
entitled "Youth Courts" with legislative findings emphasizing the
utility of youth courts as a diversion alternative from formal
prosecution in a family court, criminal court or school disciplinary
hearing.  Intended for first time offenders and employing positive
peer pressure, youth courts also provide civic education to its
participants and provide definitions of youth court recognizing the
currently existing models, which may include a tribunal presided over
by an adult judge, a youth judge, or a peer tribunal and those models
where the sanction may be determined by either a peer jury or peer
tribunal. The language allows for local variations of youth court
models, in addition to the models permitted by the statue. Section 1
also sets forth examples of sanctions which may include performance of
community service, attendance at approved education workshops, curfew
limitations, essay writing, letters of apology, restitution and
behavior modification classes, or other sanction as determined
appropriate by the youth court on a case-by-case basis. This section
also defines a youth appropriate for referral as a person under the
age of twenty-one who is enrolled in school when the referral is from
a school disciplinary proceeding or a youth under the age of 19 where
the referral source is a criminal or family court exercising its
jurisdiction. Section 1 also provides that you th courts may accept
referrals from schools, probation, police, presentment agency, or
prosecutors regarding violations of state law, municipal law or
ordinance or school policy and provides clear statutory language
authorizing a criminal court to refer proceedings to a youth court
upon consent of the prosecuting attorney for misdemeanors or
violations or in the family court setting consent of the court.

Section 2 of the bill amends CPL. § 160.50 which sets forth the
procedures which must occur upon termination of a criminal action in
favor of the accused, including the sealing of records of the
proceeding in the criminal court. Subdivision (3) is amended to
include a new paragraph (m) which requires an order of dismissal of a
proceeding under the new § 217.30 of the CPL, pertaining to youth
court.

Section 3 of the bill amends § 170.55(6) to provide that as part of an
adjournment in contemplation of dismissal, the defendant may be
required to perform services for a governmental unit or agency and
specifically references a municipal corporation. This amendment is
necessary to clarify the limited language in order to allow community
service to such governmental unit in addition to a public or
not-for-profit corporation, association, institution or agency as is
currently set forth in the law. This amendment clarifies that where
the organizing entity is, for example, a town or school; an
appropriate sanction may be to provide services to that entity.

Section 4 of the bill adds new article 217 of the criminal procedure
law This article sets forth the conditions required for a referral to
youth court from a criminal court. Proceedings alleging the commission
of a violation or misdemeanor offense as defined by Article 10 of the
Penal Law may be referred to a youth court program at the discretion
of the court upon consent of the district attorney and the youth.

Section 5 of the bill amends FCA § 315.3(2) pertaining to permissible
terms and conditions of an order adjourning a proceeding in


contemplation of dismissal to include referral to a youth court
program pursuant to FCA § 316.1.

Section 6 of the bill adds a new FCA § 216, entitled "youth court
diversion program." Section 316 sets forth the conditions required for
a referral to youth court from a family court. A referral of a
proceeding regarding a youth under the age of 16 must occur before a
finding is entered under § 352.1 in the proceeding. Proceedings
alleging the commission of a misdemeanor offense as defined by Article
10 of the Penal Law and FCA § 301.2(6) may be referred to a youth
court program at the discretion of the family court, if the youth
consents. If a referral to youth court is made, § 316.1(d) requires
that the Court issue in order adjourning the proceeding in
contemplation of dismissal for six months.

Upon failure of the referred youth to cooperate with the youth court
program or complete the assigned sanctions within six months of the
referral, the court may restore the proceeding to the family court
calendar if the court determines that dismissal of the petition would
not be in the interests of justice.

Section 7 of the bill provides that the act shall take effect 60 days
after it is signed into law.

PRIOR LEGISLATIVE HISTORY:  2012 - died in Rules; died in Assembly
Codes.

EFFECTIVE DATE:  Sixtieth day after it shall have become a law.

2013-S5311 (ACTIVE) - Bill Text download pdf

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

                                  5311

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 16, 2013
                               ___________

Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to establish youth  courts  and  authorize  criminal  and  family
  courts  to  transfer  the  dispositional phase of proceedings to youth
  courts and to amend the criminal procedure law and  the  family  court
  act, in relation thereto

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

  Section 1.  There  is  hereby  established  a  youth  court  diversion
program:
  1.  Legislative  findings.  Young  people sometimes make bad decisions
that can lead to contact with the justice system, and  those  youth  who
become  involved  in  the justice system are at greater risk for future,
more serious involvement as adults. The legislature finds that diversion
programs can help youth  make  better  decisions,  reduce  their  future
contacts  with the criminal justice system and encourage positive devel-
opment. The legislature further finds that youth courts,  which  have  a
long  history as a diversion alternative in the State of New York, are a
valuable resource for the courts, law enforcement and probation  depart-
ments,  and  schools.  Youth  courts  use positive peer pressure to hold
young people accountable for their  actions,  providing  them  with  the
opportunity  to redress any harm they have caused while supporting their
positive  engagement  with  the community. The legislature further finds
that youth courts provide young people with meaningful  civic  education
about the justice system.
  2. Definitions.  As used in this section:
  (a)  "Youth  court"  means  a  tribunal  of young people who have been
trained to conduct dispositional hearings  for  youth  alleged  to  have
committed  certain  offenses  and  to  determine and assign constructive
sanctions designed to restore  the  community,  reduce  recidivism,  and
serve as an alternative to further formal processes. Models include, but

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04698-01-3

S. 5311                             2

are  not  limited  to,  a  tribunal presided over by an adult judge or a
youth judge, or a peer tribunal. Sanctions may be determined by either a
peer jury or peer tribunal.
  (b)  "Sanction"  means  the  acts  a  referred  youth is to perform to
redress any harm caused by his or her  conduct  and  other  constructive
exercises  meant  to provide insight into the consequences of his or her
behavior and to help him or her make better  decisions  in  the  future.
Sanctions  may include, but are not limited to, performance of community
service, participation on a youth court jury, attendance at youth court-
approved education workshops, curfew limitations, essay writing, letters
of apology, restitution and behavior modification classes. Inability  to
pay restitution shall not be a factor in determining whether youth court
is an appropriate diversion in any given proceeding, action or referral.
  (c) "Youth" means:
  (i)  an  individual  under  the  age  of 21 at the time of the alleged
offense who is referred to youth court from family  or  criminal  court,
probation or police; or
  (ii)  an  individual  under the age of 21 who is currently enrolled in
school and is referred in a school disciplinary proceeding by the school
administration for a school-related offense.
  (d) "Consent" means the  agreement  of  the  youth  to  waive  further
proceedings  in  court  or  school  and to referral of the dispositional
phase of the waived proceeding to a youth court  program.  Consent  also
means  the  agreement  of  the  youth  to cooperate with the youth court
program and to complete the assessed sanction.
  (e) "Organizing entity" means the school, non-profit organization,  or
governmental  unit  or  agency  including  a  municipal corporation that
undertakes establishment of a youth court program.
  3. Case referral. (a) Youth courts may accept referrals of proceedings
from appropriate sources, which may include, but  are  not  limited  to,
schools,  probation, police, presentment agency or prosecutor, involving
a youth whose alleged offense or offenses violates a state law,  munici-
pal law or ordinance or school policy.
  (b)(i)  Where  a  proceeding  has  been  commenced  in criminal court,
violation and misdemeanor offenses as defined by article 10 of the penal
law may be referred to a youth court program at the  discretion  of  the
presiding  court.  Felony offenses as defined by article 10 of the penal
law may be referred to a youth court program at the  discretion  of  the
court, with the agreement of the prosecutor.
  (ii)  Where proceeding has been commenced in family court, misdemeanor
and non-designated felony offenses as defined by article 10 of the penal
law and subdivision 8 of section 301.2 of the family court act,  may  be
referred  to  a  youth  court program at the discretion of the presiding
court. Designated felony offenses as defined by subdivision 8 of section
301.2 of the family court act may be referred to a youth  court  program
at  the  discretion  of the court, with the agreement of the presentment
agency.
  (c) A youth must consent to the referral of the dispositional phase of
the proceeding to a youth court program.
  (d) Each youth court program retains the right to decline  any  refer-
rals  received  based upon criteria established in its by-laws or proce-
dure manual.
  4. Failure to complete sanctions. The  failure  of  a  youth  who  has
previously  consented  to referral to a youth court program to cooperate
or complete the assigned sanction or sanctions will result in notice  of
the  failure  being  provided to the referring body, which may take such

S. 5311                             3

action as it determines appropriate or as  provided  by  law;  provided,
however,  that the youth may not receive a harsher sanction, disposition
or sentence from the referring body than he or she would  have  received
but for the referral to youth court.
  5.  Completion  of  sanctions.  Upon  the  youth's  completion  of the
assigned sanction or sanctions, all court, police and probation  records
pertaining to the offense which resulted in the referral shall be sealed
automatically,  notwithstanding any law dealing generally with the pres-
ervation and destruction of public records.
  6. Liability. The organizing entity, the youth court,  its  board  and
staff,  youth  court  volunteers,  and youth referred to the youth court
program shall be immune from any claims that may arise as  a  result  of
activities related to youth court.
  7.  Confidentiality.  All  records  from  proceedings of a youth court
program shall be confidential, except as necessary to  provide  informa-
tion or notice to the referring body. Such records shall remain property
of the youth court and may not be used in any subsequent family or crim-
inal court or school hearings.
  8.  Application.  This  section shall apply to all youth courts estab-
lished in New York State, whether preexisting or established  subsequent
to the enactment of this section.
  S  2. Subdivision 3 of section 160.50 of the criminal procedure law is
amended by adding a new paragraph (m) to read as follows:
  (M) AN ORDER DISMISSING AN ACTION PURSUANT TO SECTION 217.30  OF  THIS
PART WAS ENTERED.
  S 3. Subdivision 6 of section 170.55 of the criminal procedure law, as
added by chapter 134 of the laws of 1982 and as renumbered by chapter 39
of the laws of 1988, is amended to read as follows:
  6.  The court may as a condition of an adjournment in contemplation of
dismissal order, require the defendant to perform services for a  public
or  not-for-profit  corporation,  association,  institution  or  agency.
WHERE A CASE IS REFERRED TO A YOUTH COURT FOR DETERMINATION OF  SANCTION
AS  A  CONDITION  OF AN ADJOURNMENT IN CONTEMPLATION OF DISMISSAL ORDER,
THE SANCTION MAY INCLUDE THE  REQUIREMENT  THAT  THE  DEFENDANT  PERFORM
SERVICERS FOR A GOVERNMENTAL UNIT OR AGENCY INCLUDING A MUNICIPAL CORPO-
RATION,  PUBLIC  OR NOT-FOR-PROFIT CORPORATION, ASSOCIATION, INSTITUTION
OR AGENCY. Such condition may only be imposed where  the  defendant  has
consented  to  the  amount and conditions of such service. The court may
not impose such conditions in excess of the length of the adjournment.
  S 4. The criminal procedure law is amended by adding a new article 217
to read as follows:
                               ARTICLE 217
                      YOUTH COURT DIVERSION PROGRAM
SECTION 217.10 JURISDICTION OF YOUTH COURT.
        217.20 RESTORATION OF PROCEEDING TO PRESIDING COURT.
        217.30 DISMISSAL OF ACTION.
S 217.10 JURISDICTION OF YOUTH COURT.
  IN ANY JURISDICTION IN WHICH AN ESTABLISHED YOUTH COURT ACCEPTS REFER-
RALS FROM SCHOOLS, LAW ENFORCEMENT, PROBATION AND/OR A COURT REGARDING A
DEFENDANT UNDER THE AGE  OF  TWENTY-ONE,  WHEN  A  PROCEEDING  HAS  BEEN
COMMENCED  IN  SUCH  COURT,  AT  ANY  TIME BEFORE FINAL DISPOSITION OF A
PROCEEDING, THE COURT MAY  REFER  THE  PROCEEDING  TO  THE  YOUTH  COURT
PROGRAM UNDER THE FOLLOWING CONDITIONS:
  1.  VIOLATIONS  AND  MISDEMEANOR OFFENSES AS DEFINED BY ARTICLE TEN OF
THE PENAL LAW MAY BE REFERRED TO AN ESTABLISHED YOUTH COURT  PROGRAM  AT
THE DISCRETION OF THE PRESIDING COURT.

S. 5311                             4

  2.  FELONY  OFFENSES AS DEFINED BY ARTICLE TEN OF THE PENAL LAW MAY BE
REFERRED TO AN ESTABLISHED YOUTH COURT PROGRAM AT THE DISCRETION OF  THE
PRESIDING COURT WITH THE CONSENT OF THE PEOPLE.
  3. THE YOUTH MUST CONSENT TO THE REFERRAL OF THE PROCEEDING TO A YOUTH
COURT PROGRAM.
  4. THE COURT SHALL ISSUE AN ORDER ADJOURNING THE PROCEEDING IN CONTEM-
PLATION OF DISMISSAL FOR NOT MORE THAN SIX MONTHS FOR PURPOSES OF REFER-
RAL TO AN ESTABLISHED YOUTH COURT PROGRAM.
S 217.20 RESTORATION OF PROCEEDING TO PRESIDING COURT.
  UPON  FAILURE  OF A YOUTH TO COOPERATE WITH THE YOUTH COURT PROGRAM OR
TO COMPLETE THE ASSIGNED SANCTION OR SANCTIONS WITHIN SIX MONTHS OF  THE
COURT ORDER ADJOURNING THE PROCEEDING IN CONTEMPLATION OF DISMISSAL, THE
COURT  MAY  RESTORE  THE PROCEEDING TO THE CALENDAR UPON A DETERMINATION
THAT DISMISSAL OF THE ACCUSATORY INSTRUMENT WOULD NOT BE IN THE FURTHER-
ANCE OF JUSTICE; PROVIDED, HOWEVER, THAT THE YOUTH  MAY  NOT  RECEIVE  A
HARSHER SENTENCE THAN HE OR SHE WOULD HAVE RECEIVED BUT FOR THE REFERRAL
TO YOUTH COURT.
S 217.30 DISMISSAL OF ACTION.
  IF  THE  PROCEEDING  HAS  NOT BEEN RESTORED TO THE CALENDAR WITHIN SIX
MONTHS PURSUANT TO  SECTION  217.20  OF  THIS  ARTICLE,  THE  ACCUSATORY
INSTRUMENT  SHALL BE DISMISSED BY THE COURT IN FURTHERANCE OF JUSTICE AT
THE EXPIRATION OF THE SIX MONTH PERIOD. UPON DISMISSAL  OF  THE  ACTION,
THE  ARREST  AND PROSECUTION SHALL BE DEEMED A NULLITY AND THE DEFENDANT
SHALL BE RESTORED TO THE STATUS HE OR SHE OCCUPIED  BEFORE  HIS  OR  HER
ARREST  AND PROSECUTION. ALL PAPERS AND RECORDS RELATING TO THE PROCEED-
ING THAT HAS BEEN DISMISSED PURSUANT TO THIS SECTION SHALL BE SUBJECT TO
THE PROVISIONS OF SECTION 160.50 OF THIS PART.
  S 5. Subdivision 2 of section  315.3  of  the  family  court  act,  as
amended  by  chapter  880  of  the  laws  of 1985, is amended to read as
follows:
  2. Rules of court shall define the permissible  terms  and  conditions
which  may  be  included in an order that the proceeding be adjourned in
contemplation of dismissal; such permissible terms  and  conditions  may
include  supervision  by  the  probation service, a requirement that the
respondent cooperate with a mental  health,  social  services  or  other
appropriate  community facility or agency to which the respondent may be
referred, A REFERRAL TO A YOUTH  COURT  DIVERSION  PROGRAM  PURSUANT  TO
SECTION  316.1 OF THIS PART and a requirement that the respondent comply
with such other reasonable conditions as the court shall determine to be
necessary or appropriate to ameliorate the conduct which  gave  rise  to
the filing of the petition or to prevent placement with the commissioner
of  social  services  or the [division for youth] OFFICE OF CHILDREN AND
FAMILY SERVICES.
  S 6. The family court act is amended by adding a new section 316.1  to
read as follows:
  S  316.1.  YOUTH  COURT  DIVERSION  PROGRAM. 1. IN ANY JURISDICTION IN
WHICH AN ESTABLISHED YOUTH COURT ACCEPTS  REFERRALS  FROM  SCHOOLS,  LAW
ENFORCEMENT,  PROBATION  AND/OR A COURT REGARDING A RESPONDENT UNDER THE
AGE OF SIXTEEN, WHEN A PROCEEDING HAS BEEN COMMENCED IN SUCH  COURT,  AT
ANY  TIME  BEFORE A FINDING IS ENTERED UNDER SECTION 352.1 OF THIS ARTI-
CLE, THE COURT MAY REFER THE PROCEEDING TO THE YOUTH COURT PROGRAM UNDER
THE FOLLOWING CONDITIONS:
  (A) EXCEPT WHERE THERE IS AN  ALLEGATION  THAT  A  YOUTH  COMMITTED  A
DESIGNATED  FELONY  ACT,  VIOLATIONS, MISDEMEANOR AND FELONY OFFENSES AS
DEFINED BY ARTICLE TEN OF THE PENAL LAW MAY BE  REFERRED  TO  AN  ESTAB-
LISHED  YOUTH  COURT  PROGRAM  AT THE DISCRETION OF THE PRESIDING COURT.

S. 5311                             5

DESIGNATED FELONY OFFENSES AS DEFINED BY SUBDIVISION  EIGHT  OF  SECTION
301.2  OF  THIS  ARTICLE MAY BE REFERRED TO A YOUTH COURT PROGRAM AT THE
DISCRETION OF THE COURT, WITH THE AGREEMENT OF THE PRESENTMENT AGENCY.
  (B)  THE  YOUTH  MUST  CONSENT  TO THE REFERRAL OF THE PROCEEDING TO A
YOUTH COURT PROGRAM; AND
  (C) THE COURT SHALL ISSUE AN ORDER PURSUANT TO SECTION 315.3  OF  THIS
PART, ADJOURNING THE PROCEEDING FOR A PERIOD NOT TO EXCEED SIX MONTHS IN
CONTEMPLATION  OF  DISMISSAL  FOR PURPOSES OF REFERRAL TO AN ESTABLISHED
YOUTH COURT PROGRAM.
  2. UPON FAILURE OF A YOUTH TO COOPERATE WITH THE YOUTH  COURT  PROGRAM
OR  TO  COMPLETE THE ASSIGNED SANCTION OR SANCTIONS WITHIN SIX MONTHS OF
THE COURT ORDER ADJOURNING THE PROCEEDING IN CONTEMPLATION OF DISMISSAL,
THE COURT MAY RESTORE THE PROCEEDING TO THE CALENDAR,  UPON  A  DETERMI-
NATION THAT DISMISSAL OF THE PETITION WOULD NOT BE IN THE FURTHERANCE OF
JUSTICE;  PROVIDED,  HOWEVER,  THAT  THE YOUTH MAY NOT RECEIVE A HARSHER
DISPOSITION THAN HE OR SHE WOULD HAVE RECEIVED BUT FOR THE  REFERRAL  TO
YOUTH COURT.
  3.  IF THE PROCEEDING HAS NOT BEEN RESTORED TO THE CALENDAR WITHIN SIX
MONTHS, THE PETITION SHALL, PURSUANT TO SECTION 315.3 OF THIS  PART,  BE
DISMISSED  BY  THE  COURT IN FURTHERANCE OF JUSTICE AT THE EXPIRATION OF
THE SIX MONTH PERIOD.
  S 7. This act shall take effect on the sixtieth  day  after  it  shall
have become a law.

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