Relates to adjudication and violation procedures in juvenile delinquency and PINS cases

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 for the fact-finding stage of the proceeding, as has repeatedly been identified by appellate courts. This measure would eliminate these gaps by clarifying applicable proce- dures in cases of alleged violations of orders of probation and orders of conditional discharge in JD proceedings and with respect to allocu- tions for admissions and violations of suspended judgments and orders of probation in PINS cases.

With respect to violations of orders of probation and conditional discharge, the measure effectuates the apparent legislative intention to provide identical provisions to toll such dispositional orders while violation proceedings are pending. While sections 360.2 and 360.3 of the Family Court Act articulate a procedure governing violations of probation and of conditional discharge, references to conditional discharge appear inadvertently to have been omitted from two subdivi- sions 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) 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 admis- sion 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 inad- vertent 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 inappro- priate 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 revers- ible 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 Nichole 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 -- as 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 judg- ment 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 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 (3rd 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), state the reasons for its determination and 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 if, in which the juvenile was placed pursuant to Family Court Act § 756, these findings are 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.

2013-14 Legislative History:

Senate 3831-A (Sen. Gallivan) (Rules) Assembly 2602-B (M. of A. Paulin) (Passed)

2012 Legislative History:

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

{1} 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.