Relates to Project SAVE and a term of incarceration preventing a student from continuously attending school

This measure would amend sections 380.90 and 720.35 of the Criminal Procedure Law ("CPL") to clarify that the mandatory school notification provisions of the "Project SAVE, the Safe Schools Against Violence in Education Act" apply only to cases where the student is sentenced to a period of incarceration that will interfere with the student's school attendance.

In 2000, the Legislature enacted the "Project SAVE, Safe Schools Against Violence in Education Act" (L. 2000, c. 181). As part of the Act, the Legislature amended both CPL 720.35 and 380.90 to provide for automatic notification "to the designated educational official of the school in which such person in enrolled as a student" whenever a student under the age of nineteen is convicted of a Crime or is the subject of a youthful offender adjudication. The purpose of the legislation was to insure increased coordination between the criminal justice system and the school that a defendant attends.

The unambiguous language of both statutes provides that the court must notify the school in all cases regardless of the sentence the student receives. The Legislature, however, may have intended a more narrow reach by wanting to limit mandatory notification only to cases where the court's sentence included a period of incarceration that would force the student to be absent from school. The Family Court Act explicitly provides that mandatory reporting Ro schools only occurs when the student is placed away from his or her home. Although no such explicit language can be found in the Criminal Procedure Law, the practice commentary to CPL 380.20 provides that "[a]lthough the provision lacks clarity with respect to whether it is limited to cases where the youngster is sentenced to incarceration or includes those who were held in detention before conviction and then released upon sentencing, it apparently only applies where the student is sentenced to incarceration." A similar note is found in connection with the practice commentary to CPL 735.20: "While new subdivision three, read literally, appears to require notification for all Youthful Offender adjudications of students enrolled in public and private schools, when read in conjunction with CPL 380.90 and the Family Court Act the intended construction seems limited to cases where the youth has been removed from the home and placed elsewhere."

Notwithstanding the practice commentary, settled rules of statutory construction provide that while courts are obliged to interpret a statute to effectuate the intent of the Legislature, "when the statute "is clear and unambiguous, it should be construed so as to

give effect to the plain meaning of its words" (People ex rel. Harris v. Sullivan, 74 NY2d 305,309 (1989)). Nor are courts permitted to legislate under the guise of judicial interpretation (People v. Finnegan, 85 NY2d 53,58 (1995)). Thus, even though the Legislature might have intended mandatory notification only in cases in which the student is incarcerated, the absence of explicit direction in the statutes has generated inconsistent application of the notification requirements of sections 720.35 and 380.90.

This measure would promote a consistent application of the statutes by expressly limiting mandatory notification to instances where the defendant is unable to regularly attend school because the court has imposed a period of incarceration.

This measure, which would have no meaningful fiscal impact on the State, would take effect 90 days after it shall have become a law and shall apply to any sentence imposed on or after such effective date.

2011 LEGISLATIVE HISTORY: None. New proposal.