Bill Text: NY S04121 | 2017-2018 | General Assembly | Introduced
Bill Title: Raises the age of criminal responsibility to eighteen years of age.
Spectrum: Partisan Bill (Democrat 10-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CODES [S04121 Detail]
Download: New_York-2017-S04121-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4121 2017-2018 Regular Sessions IN SENATE February 3, 2017 ___________ Introduced by Sens. MONTGOMERY, BAILEY, COMRIE, HOYLMAN, KRUEGER, PARK- ER, SQUADRON -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, the executive law, the fami- ly court act and the penal law, in relation to raising the age of adult criminal responsibility from sixteen to eighteen so that youth who are charged with a crime may be treated in a more age appropriate manner; and to repeal certain provisions of the criminal procedure law, relating thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Subdivision 42 of section 1.20 of the criminal procedure 2 law, as amended by chapter 7 of the laws of 2007, is amended to read as 3 follows: 4 42. "Juvenile offender" means, where prosecution is authorized by law, 5 including but not limited to section 726.05 of this chapter and section 6 325.5 of the family court act: (1) a person, thirteen years old who is 7 criminally responsible for acts constituting murder in the second degree 8 as defined in subdivisions one and two of section 125.25 of the penal 9 law, or such conduct as a sexually motivated felony, where authorized 10 pursuant to section 130.91 of the penal law; and (2) a person fourteen 11 [or], fifteen, sixteen, or seventeen years old who is criminally respon- 12 sible for acts constituting the crimes defined in subdivisions one and 13 two of section 125.25 (murder in the second degree) and in subdivision 14 three of such section provided that the underlying crime for the murder 15 charge is one for which such person is criminally responsible; section 16 135.25 (kidnapping in the first degree); 150.20 (arson in the first 17 degree); subdivisions one and two of section 120.10 (assault in the 18 first degree); 125.20 (manslaughter in the first degree); subdivisions 19 one and two of section 130.35 (rape in the first degree); subdivisions 20 one and two of section 130.50 (criminal sexual act in the first degree); EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD03724-02-7S. 4121 2 1 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary 2 in the first degree); subdivision one of section 140.25 (burglary in the 3 second degree); 150.15 (arson in the second degree); 160.15 (robbery in 4 the first degree); subdivision two of section 160.10 (robbery in the 5 second degree) of the penal law; or section 265.03 of the penal law, 6 where such machine gun or such firearm is possessed on school grounds, 7 as that phrase is defined in subdivision fourteen of section 220.00 of 8 the penal law; or defined in the penal law as an attempt to commit 9 murder in the second degree or kidnapping in the first degree, or such 10 conduct as a sexually motivated felony, where authorized pursuant to 11 section 130.91 of the penal law. 12 § 2. Paragraphs (a) and (b) of subdivision 3 and subdivision 5 of 13 section 180.75 of the criminal procedure law, paragraph (a) of subdivi- 14 sion 3 as added by chapter 481 of the laws of 1978, paragraph (b) of 15 subdivision 3 as amended by chapter 920 of the laws of 1982 and subdivi- 16 sion 5 as added by chapter 411 of the laws of 1979, are amended to read 17 as follows: 18 (a) If there is reasonable cause to believe that the defendant commit- 19 ted a crime for which a person under the age of [sixteen] eighteen is 20 criminally responsible, the court must order that the defendant be held 21 for the action of a grand jury of the appropriate superior court, and it 22 must promptly transmit to such superior court the order, the felony 23 complaint, the supporting depositions and all other pertinent documents. 24 Until such papers are received by the superior court, the action is 25 deemed to be still pending in the local criminal court; or 26 (b) If there is not reasonable cause to believe that the defendant 27 committed a crime for which a person under the age of [sixteen] eighteen 28 is criminally responsible but there is reasonable cause to believe that 29 the defendant is a "juvenile delinquent" as defined in subdivision one 30 of section 301.2 of the family court act, the court must specify the act 31 or acts it found reasonable cause to believe the defendant did and 32 direct that the action be removed to the family court in accordance with 33 the provisions of article seven hundred twenty-five of this chapter; or 34 5. Notwithstanding the provisions of subdivision two, three, or four, 35 if a currently undetermined felony complaint against a juvenile offender 36 is pending in a local criminal court, and the defendant has not waived a 37 hearing pursuant to subdivision two and a hearing pursuant to subdivi- 38 sion three has not commenced, the defendant may move in the superior 39 court which would exercise the trial jurisdiction of the offense or 40 offenses charged were an indictment therefor to result, to remove the 41 action to family court. The procedural rules of subdivisions one and two 42 of section 210.45 of this chapter are applicable to a motion pursuant to 43 this subdivision. Upon such motion, the superior court shall be author- 44 ized to sit as a local criminal court to exercise the preliminary juris- 45 diction specified in subdivisions two and three of this section, and 46 shall proceed and determine the motion as provided in section 210.43 of 47 this chapter[; provided, however, that the exception provisions of para-48graph (b) of subdivision one of such section 210.43 shall not apply when49there is not reasonable cause to believe that the juvenile offender50committed one or more of the crimes enumerated therein, and in such51event the provisions of paragraph (a) thereof shall apply]. 52 § 3. Subdivisions (a), (b) and (c) of section 190.71 of the criminal 53 procedure law, subdivision (a) as amended by chapter 7 of the laws of 54 2007 and subdivisions (b) and (c) as added by chapter 481 of the laws of 55 1978, are amended to read as follows:S. 4121 3 1 (a) Except as provided in subdivision six of section 200.20 of this 2 chapter, a grand jury may not indict (i) a person thirteen years of age 3 for any conduct or crime other than conduct constituting a crime defined 4 in subdivisions one and two of section 125.25 (murder in the second 5 degree) or such conduct as a sexually motivated felony, where authorized 6 pursuant to section 130.91 of the penal law; (ii) a person fourteen 7 [or], fifteen, sixteen or seventeen years of age for any conduct or 8 crime other than conduct constituting a crime defined in subdivisions 9 one and two of section 125.25 (murder in the second degree) and in 10 subdivision three of such section provided that the underlying crime for 11 the murder charge is one for which such person is criminally responsi- 12 ble; 135.25 (kidnapping in the first degree); 150.20 (arson in the first 13 degree); subdivisions one and two of section 120.10 (assault in the 14 first degree); 125.20 (manslaughter in the first degree); subdivisions 15 one and two of section 130.35 (rape in the first degree); subdivisions 16 one and two of section 130.50 (criminal sexual act in the first degree); 17 130.70 (aggravated sexual abuse in the first degree); 140.30 (burglary 18 in the first degree); subdivision one of section 140.25 (burglary in the 19 second degree); 150.15 (arson in the second degree); 160.15 (robbery in 20 the first degree); subdivision two of section 160.10 (robbery in the 21 second degree) of the penal law; [subdivision four of section 265.02 of22the penal law, where such firearm is possessed on school grounds, as23that phrase is defined in subdivision fourteen of section 220.00 of the24penal law;] or section 265.03 of the penal law, where such machine gun 25 or such firearm is possessed on school grounds, as that phrase is 26 defined in subdivision fourteen of section 220.00 of the penal law; or 27 defined in the penal law as an attempt to commit murder in the second 28 degree or kidnapping in the first degree, or such conduct as a sexually 29 motivated felony, where authorized pursuant to section 130.91 of the 30 penal law. 31 (b) A grand jury may vote to file a request to remove a charge to the 32 family court if it finds that a person thirteen, fourteen [or], fifteen, 33 sixteen or seventeen years of age did an act which, if done by a person 34 over the age of [sixteen] eighteen, would constitute a crime provided 35 (1) such act is one for which it may not indict; (2) it does not indict 36 such person for a crime; and (3) the evidence before it is legally 37 sufficient to establish that such person did such act and competent and 38 admissible evidence before it provides reasonable cause to believe that 39 such person did such act. 40 (c) Upon voting to remove a charge to the family court pursuant to 41 subdivision (b) of this section, the grand jury must, through its fore- 42 man or acting foreman, file a request to transfer such charge to the 43 family court. Such request shall be filed with the court by which it was 44 impaneled. It must (1) allege that a person named therein did any act 45 which, if done by a person over the age of [sixteen] eighteen, would 46 constitute a crime; (2) specify the act and the time and place of its 47 commission; and (3) be signed by the foreman or the acting foreman. 48 § 4. Subdivision 6 of section 200.20 of the criminal procedure law, as 49 added by chapter 136 of the laws of 1980, is amended to read as follows: 50 6. Where an indictment charges at least one offense against a defend- 51 ant who was under the age of [sixteen] eighteen at the time of the 52 commission of the crime and who did not lack criminal responsibility for 53 such crime by reason of infancy, the indictment may, in addition, charge 54 in separate counts one or more other offenses for which such person 55 would not have been criminally responsible by reason of infancy, if:S. 4121 4 1 (a) the offense for which the defendant is criminally responsible and 2 the one or more other offenses for which he would not have been crimi- 3 nally responsible by reason of infancy are based upon the same act or 4 upon the same criminal transaction, as that term is defined in subdivi- 5 sion two of section 40.10 of this chapter; or 6 (b) the offenses are of such nature that either proof of the first 7 offense would be material and admissible as evidence in chief upon a 8 trial of the second, or proof of the second would be material and admis- 9 sible as evidence in chief upon a trial of the first. 10 § 5. Subdivision 5 of section 210.20 of the criminal procedure law, as 11 added by chapter 136 of the laws of 1980, is amended to read as follows: 12 5. If the court dismisses one or more counts of an indictment, against 13 a defendant who was under the age of [sixteen] eighteen at the time of 14 the commission of the crime and who did not lack criminal responsibility 15 for such crime by reason of infancy, and one or more other counts of the 16 indictment having been joined in the indictment solely with the 17 dismissed count pursuant to subdivision six of section 200.20 is not 18 dismissed, the court must direct that such count be removed to the fami- 19 ly court in accordance with article seven hundred twenty-five of this 20 chapter. 21 § 6. Paragraph (b) of subdivision 1 of section 210.43 of the criminal 22 procedure law, as amended by chapter 264 of the laws of 2003, is amended 23 to read as follows: 24 (b) [with the consent of the district attorney,] order removal of an 25 action involving an indictment charging a juvenile offender with murder 26 in the second degree as defined in section 125.25 of the penal law; rape 27 in the first degree, as defined in subdivision one of section 130.35 of 28 the penal law; criminal sexual act in the first degree, as defined in 29 subdivision one of section 130.50 of the penal law; or an armed felony 30 as defined in paragraph (a) of subdivision forty-one of section 1.20, to 31 the family court pursuant to the provisions of article seven hundred 32 twenty-five of this chapter if the court finds one or more of the 33 following factors: (i) mitigating circumstances that bear directly upon 34 the manner in which the crime was committed; (ii) where the defendant 35 was not the sole participant in the crime, the defendant's participation 36 was relatively minor although not so minor as to constitute a defense to 37 the prosecution; or (iii) possible deficiencies in the proof of the 38 crime, and, after consideration of the factors set forth in subdivision 39 two of this section, the court determined that removal of the action to 40 the family court would be in the interests of justice. 41 § 7. Subparagraphs (i), (iii) and the second undesignated paragraph of 42 paragraph (g) of subdivision 5 of section 220.10 of the criminal proce- 43 dure law, subparagraph (i) as amended by chapter 410 of the laws of 44 1979, subparagraph (iii) as amended by chapter 264 of the laws of 2003 45 and the second undesignated paragraph as amended by chapter 920 of the 46 laws of 1982, are amended to read as follows: 47 (i) If the indictment charges a person fourteen [or] fifteen, sixteen 48 or seventeen years old with the crime of murder in the second degree any 49 plea of guilty entered pursuant to subdivision three or four must be a 50 plea of guilty of a crime for which the defendant is criminally respon- 51 sible; 52 (iii) Where the indictment does not charge a crime specified in 53 subparagraph (i) of this paragraph, the district attorney may recommend 54 removal of the action to the family court. Upon making such recommenda- 55 tion the district attorney shall submit a subscribed memorandum setting 56 forth: (1) a recommendation that the interests of justice would best beS. 4121 5 1 served by removal of the action to the family court; and (2) if the 2 indictment charges a thirteen year old with the crime of murder in the 3 second degree, or a fourteen [or], fifteen, sixteen or seventeen year 4 old with the crimes of rape in the first degree as defined in subdivi- 5 sion one of section 130.35 of the penal law, or criminal sexual act in 6 the first degree as defined in subdivision one of section 130.50 of the 7 penal law, or an armed felony as defined in paragraph (a) of subdivision 8 forty-one of section 1.20 of this chapter specific factors, one or more 9 of which reasonably supports the recommendation, showing, (i) mitigating 10 circumstances that bear directly upon the manner in which the crime was 11 committed, or (ii) where the defendant was not the sole participant in 12 the crime, that the defendant's participation was relatively minor 13 although not so minor as to constitute a defense to the prosecution, or 14 (iii) possible deficiencies in proof of the crime, or (iv) where the 15 juvenile offender has no previous adjudications of having committed a 16 designated felony act, as defined in subdivision eight of section 301.2 17 of the family court act, regardless of the age of the offender at the 18 time of commission of the act, that the criminal act was not part of a 19 pattern of criminal behavior and, in view of the history of the offen- 20 der, is not likely to be repeated. 21 If the court is of the opinion [based on specific factors set forth in22the district attorney's memorandum] that the interests of justice would 23 best be served by removal of the action to the family court, a plea of 24 guilty of a crime or act for which the defendant is not criminally 25 responsible may be entered pursuant to subdivision three or four of this 26 section, except that a thirteen year old charged with the crime of 27 murder in the second degree may only plead to a designated felony act, 28 as defined in subdivision eight of section 301.2 of the family court 29 act. 30 § 8. Subdivision 5 of section 300.50 of the criminal procedure law, 31 as added by chapter 481 of the laws of 1978, is amended to read as 32 follows: 33 5. Where the indictment charges a crime committed by the defendant 34 while he or she was under the age of [sixteen] eighteen but a lesser 35 included offense would be one for which the defendant is not criminally 36 responsible by reason of infancy, such lessor included offense may 37 nevertheless be submitted to the jury in the same manner as an offense 38 for which the defendant would be criminally responsible notwithstanding 39 the fact that a verdict of guilty would not result in a criminal 40 conviction. 41 § 9. Section 330.25 of the criminal procedure law, as added by chapter 42 481 of the laws of 1978, and subdivision 2 as amended by chapter 920 of 43 the laws of 1982, is amended to read as follows: 44 § 330.25 Removal after verdict. 45 1. Where a defendant is a juvenile offender who does not stand 46 convicted of murder in the second degree, upon motion [and with the47consent of the district attorney], the action may be removed to the 48 family court in the interests of justice pursuant to article seven 49 hundred twenty-five of this chapter notwithstanding the verdict. 50 2. [If the district attorney consents to the motion for removal pursu-51ant to this section, he shall file a subscribed memorandum with the52court setting forth (1) a recommendation that] In determining the 53 motion, the court shall consider: (1) whether the interests of justice 54 would best be served by removal of the action to the family court; and 55 (2) if the conviction is of an offense set forth in paragraph (b) of 56 subdivision one of section 210.43 of this chapter, whether specificS. 4121 6 1 factors exist, one or more of which reasonably [support] supports the 2 [recommendation] motion, showing, (i) mitigating circumstances that bear 3 directly upon the manner in which the crime was committed, or (ii) where 4 the defendant was not the sole participant in the crime, that the 5 defendant's participation was relatively minor although not so minor as 6 to constitute a defense to prosecution, or (iii) where the juvenile 7 offender has no previous adjudications of having committed a designated 8 felony act, as defined in subdivision eight of section 301.2 of the 9 family court act, regardless of the age of the offender at the time of 10 commission of the act, that the criminal act was not part of a pattern 11 of criminal behavior and, in view of the history of the offender, is not 12 likely to be repeated. 13 3. If the court is of the opinion, based upon the specific factors 14 [set forth in the district attorney's memorandum] shown to the court, 15 that the interests of justice would best be served by removal of the 16 action to the family court, the verdict shall be set aside and a plea of 17 guilty of a crime or act for which the defendant is not criminally 18 responsible may be entered pursuant to subdivision three or four of 19 section 220.10 of this chapter. Upon accepting any such plea, the court 20 must specify upon the record the [portion or portions of the district21attorney's statement] factors the court is relying upon as the basis of 22 its opinion and that it believes the interests of justice would best be 23 served by removal of the proceeding to the family court. Such plea 24 shall then be deemed to be a juvenile delinquency fact determination and 25 the court upon entry thereof must direct that the action be removed to 26 the family court in accordance with the provisions of article seven 27 hundred twenty-five of this chapter. 28 § 10. Section 510.15 of the criminal procedure law, as amended by 29 chapter 411 of the laws of 1979, subdivision 1 as designated and subdi- 30 vision 2 as added by chapter 359 of the laws of 1980, is amended to read 31 as follows: 32 § 510.15 Commitment of principal under [sixteen] eighteen. 33 1. When a principal who is under the age of [sixteen] eighteen is 34 committed to the custody of the sheriff the court must direct that the 35 principal be taken to and lodged in a place certified by the state 36 [division for youth] office of children and family services as a juve- 37 nile detention facility for the reception of children. Where such a 38 direction is made the sheriff shall deliver the principal in accordance 39 therewith and such person shall although lodged and cared for in a juve- 40 nile detention facility continue to be deemed to be in the custody of 41 the sheriff. No principal under the age of [sixteen] eighteen to whom 42 the provisions of this section may apply shall be detained in any pris- 43 on, jail, lockup, or other place used for adults convicted of a crime or 44 under arrest and charged with the commission of a crime without the 45 approval of the state [division for youth] office of children and family 46 services in the case of each principal and the statement of its reasons 47 therefor. The sheriff shall not be liable for any acts done to or by 48 such principal resulting from negligence in the detention of and care 49 for such principal, when the principal is not in the actual custody of 50 the sheriff. 51 2. Except upon consent of the defendant or for good cause shown, in 52 any case in which a new securing order is issued for a principal previ- 53 ously committed to the custody of the sheriff pursuant to this section, 54 such order shall further direct the sheriff to deliver the principal 55 from a juvenile detention facility to the person or place specified in 56 the order.S. 4121 7 1 § 11. Subdivision 1 of section 720.10 of the criminal procedure law, 2 as amended by chapter 411 of the laws of 1979, is amended to read as 3 follows: 4 1. "Youth" means a person charged with a crime alleged to have been 5 committed when he was at least [sixteen] eighteen years old and less 6 than [nineteen] twenty years old or a person charged with being a juve- 7 nile offender as defined in subdivision forty-two of section 1.20 of 8 this chapter. 9 § 12. Paragraph (f) of subdivision 2 of section 725.20 of the criminal 10 procedure law is REPEALED and paragraph (g) is relettered paragraph (f). 11 § 13. Paragraph (e) of subdivision 2 of section 725.20 of the criminal 12 procedure law, as amended by chapter 411 of the laws of 1979, is amended 13 to read as follows: 14 (e) Where the direction is one authorized by subdivision one of 15 section 210.43 of this chapter, a copy of that portion of the minutes 16 containing the statement by the court pursuant to paragraph [(a)] a of 17 subdivision five of section 210.43; and 18 § 14. The criminal procedure law is amended by adding a new article 19 726 to read as follows: 20 ARTICLE 726 21 REMOVAL OF PROCEEDINGS AGAINST AN ALLEGED 22 JUVENILE DELINQUENT FROM FAMILY COURT TO A SUPERIOR COURT 23 Section 726.00 Applicability. 24 726.05 Filing of order of removal and proceedings thereon. 25 § 726.00 Applicability. 26 The provisions of this article apply in any case where a court directs 27 that an action or charge brought by a juvenile delinquency petition, 28 pursuant to article three of the family court act, against a juvenile 29 offender who was thirteen, fourteen or fifteen years old at the time of 30 such offense, is to be removed from family court to a superior criminal 31 court pursuant to section 325.5 of the family court act. 32 § 726.05 Filing of order of removal and proceedings thereon. 33 1. When a family court directs that an action or charge brought 34 against a juvenile offender by a juvenile delinquency petition pursuant 35 to article three of the family court act be removed from family court to 36 a superior criminal court pursuant to section 325.5 of the family court 37 act, the district attorney who requested such removal shall promptly 38 file such removal order and the appropriate charging documents with the 39 superior criminal court that would exercise trial jurisdiction over such 40 offense or offenses were an indictment therefor to result. 41 2. Following the granting of such an order of removal, the juvenile 42 shall be brought forthwith and with all reasonable speed before the 43 appropriate superior criminal court for appropriate proceedings. For 44 purposes of this section, a judge or justice of a superior court shall 45 preside over such proceedings as such a judge or justice of the superior 46 criminal court, or as a local criminal court, as appropriate. 47 3. The superior criminal court must assume jurisdiction and proceed as 48 the circumstances require, in the manner and to the extent provided by 49 law. 50 4. Upon the filing of an order of removal in the superior criminal 51 court, the family court article three action upon which the order is 52 based shall be terminated and there shall be no further proceedings in 53 the family court with respect to the offense, unless such action is 54 removed back to the family court in accordance with the provisions of 55 article seven hundred twenty-five of this chapter. All further 56 proceedings including motions and appeals shall be in accordance withS. 4121 8 1 laws appertaining to the criminal court and for this purpose all find- 2 ings, determinations, verdicts and orders, other than the order of 3 removal, shall be deemed to have been made by the superior criminal 4 court. 5 § 15. Section 507-d of the executive law, as amended by chapter 465 of 6 the laws of 1992, is amended to read as follows: 7 § 507-d. Confinement of juvenile delinquents under sentence of the 8 courts of the United States. The directors of secure and limited secure 9 facilities shall receive and safely keep in such facilities, subject to 10 the provisions of this article, any person not over the age of [sixteen] 11 eighteen years convicted of any offense against the United States, and 12 sentenced to imprisonment by any court of the United States, sitting 13 within this state, until such sentences be executed, or until such 14 delinquent shall be discharged by due course of law, conditioned upon 15 the United States supporting such delinquent and paying the expenses 16 attendant upon the execution of such sentence. 17 § 16. Subparagraph 1 of paragraph (a) of subdivision 5 of section 530 18 of the executive law, as amended by section 5 of subpart B of part Q of 19 chapter 58 of the laws of 2011, is amended to read as follows: 20 (1) temporary care, maintenance and supervision provided alleged juve- 21 nile delinquents and persons in need of supervision in detention facili- 22 ties certified pursuant to sections seven hundred twenty and 305.2 of 23 the family court act by the office of children and family services, 24 pending adjudication of alleged delinquency or alleged need of super- 25 vision by the family court, or pending transfer to institutions to which 26 committed or placed by such court or while awaiting disposition by such 27 court after adjudication or held pursuant to a securing order of a crim- 28 inal court if the person named therein as principal is under [sixteen] 29 eighteen; or, 30 § 17. Subdivision (b) of section 117 of the family court act, as 31 amended by chapter 7 of the laws of 2007, is amended to read as follows: 32 (b) For every juvenile delinquency proceeding under article three 33 involving an allegation of an act committed by a person which, if done 34 by an adult, would be a crime (i) defined in sections 125.27 (murder in 35 the first degree); 125.25 (murder in the second degree); 135.25 (kidnap- 36 ping in the first degree); or 150.20 (arson in the first degree) of the 37 penal law committed by a person thirteen, fourteen or fifteen years of 38 age; or such conduct committed as a sexually motivated felony, where 39 authorized pursuant to section 130.91 of the penal law; (ii) defined in 40 sections 120.10 (assault in the first degree); 125.20 (manslaughter in 41 the first degree); 130.35 (rape in the first degree); 130.50 (criminal 42 sexual act in the first degree); 135.20 (kidnapping in the second 43 degree), but only where the abduction involved the use or threat of use 44 of deadly physical force; 150.15 (arson in the second degree); or 160.15 45 (robbery in the first degree) of the penal law committed by a person 46 thirteen, fourteen [or], fifteen, sixteen or seventeen years of age; or 47 such conduct committed as a sexually motivated felony, where authorized 48 pursuant to section 130.91 of the penal law; (iii) defined in the penal 49 law as an attempt to commit murder in the first or second degree or 50 kidnapping in the first degree committed by a person thirteen, fourteen 51 or fifteen years of age; or such conduct committed as a sexually moti- 52 vated felony, where authorized pursuant to section 130.91 of the penal 53 law; (iv) defined in section 140.30 (burglary in the first degree); 54 subdivision one of section 140.25 (burglary in the second degree); 55 subdivision two of section 160.10 (robbery in the second degree) of the 56 penal law; or section 265.03 of the penal law, where such machine gun orS. 4121 9 1 such firearm is possessed on school grounds, as that phrase is defined 2 in subdivision fourteen of section 220.00 of the penal law committed by 3 a person fourteen [or], fifteen, sixteen or seventeen years of age; or 4 such conduct committed as a sexually motivated felony, where authorized 5 pursuant to section 130.91 of the penal law; (v) defined in section 6 120.05 (assault in the second degree) or 160.10 (robbery in the second 7 degree) of the penal law committed by a person fourteen or fifteen years 8 of age but only where there has been a prior finding by a court that 9 such person has previously committed an act which, if committed by an 10 adult, would be the crime of assault in the second degree, robbery in 11 the second degree or any designated felony act specified in clause (i), 12 (ii) or (iii) of this subdivision regardless of the age of such person 13 at the time of the commission of the prior act; or (vi) other than a 14 misdemeanor, committed by a person at least seven but less than 15 [sixteen] eighteen years of age, but only where there has been two prior 16 findings by the court that such person has committed a prior act which, 17 if committed by an adult would be a felony: 18 (i) There is hereby established in the family court in the city of New 19 York at least one "designated felony act part." Such part or parts shall 20 be held separate from all other proceedings of the court, and shall have 21 jurisdiction over all proceedings involving such an allegation. All such 22 proceedings shall be originated in or be transferred to this part from 23 other parts as they are made known to the court. 24 (ii) Outside the city of New York, all proceedings involving such an 25 allegation shall have a hearing preference over every other proceeding 26 in the court, except proceedings under article ten. 27 (iii) There is hereby established in the family court one or more 28 "violation and traffic infraction parts". Such parts shall have juris- 29 diction, over any offense that is not a felony, or a misdemeanor under 30 the penal law allegedly committed by a person sixteen or seventeen years 31 of age. Nothing in this subparagraph shall prevent a judge presiding 32 over a proceeding concerning such an offense, after notice and an oppor- 33 tunity for the parties to be heard, from transferring such proceeding to 34 or consolidating such proceeding before another family court judge, in 35 the same jurisdiction, before whom a related proceeding, involving the 36 same respondent, is pending. 37 § 18. Subdivision (a) of section 158 of the family court act is 38 amended to read as follows: 39 (a) The family court may place in protective custody a person under 40 [sixteen] eighteen years of age who is a material witness, as provided 41 by law. 42 § 19. The family court act is amended by adding a new section 325.5 to 43 read as follows: 44 § 325.5. Removal for proceedings in a superior court; certain alleged 45 offenses by youths age thirteen, fourteen or fifteen. 1. (a) (i) 46 Notwithstanding any inconsistent provision of part four of this article, 47 at any time within ten days after the initial appearance with respect to 48 a juvenile delinquency petition which alleges conduct that is also a 49 juvenile offense, as defined in subdivision eighteen of section 10.00 of 50 the penal law, and that is pending pursuant to this article against a 51 youth who was thirteen, fourteen or fifteen years of age at the time of 52 such alleged offense, if such respondent has not entered an admission to 53 all such juvenile offense counts pursuant to section 321.2 of this part 54 that has been accepted pursuant to section 321.3 of this part, has not 55 waived a fact-finding hearing pursuant to part four of this article, and 56 such a fact-finding hearing has not otherwise commenced, the appropriateS. 4121 10 1 presentment agency shall, upon the written request of the district 2 attorney having geographic jurisdiction over such alleged offense, 3 promptly serve and file, in the family court in which such petition is 4 pending, a motion seeking to remove such juvenile offender count or 5 counts to the superior criminal court that would exercise trial juris- 6 diction over such offense or offenses were an indictment therefor to 7 result. 8 (ii) Such request by the presentment agency may (if sought in such 9 district attorney's written request) include a request to remove to the 10 superior criminal court other specified related offenses of the type 11 described in subdivision six of section 200.20 of the criminal procedure 12 law, provided that the respondent has not entered an admission to such 13 count or counts pursuant to section 321.2 of this part that has been 14 accepted pursuant to section 321.3 of this part, has not waived a fact- 15 finding hearing pursuant to part four of this article, and such a fact- 16 finding hearing has not otherwise commenced. 17 (b) (i) In its motion, which shall be in writing, the presentment 18 agency shall set forth the reasons for the motion for removal, which 19 shall be stated in detail and not in conclusory terms. The written 20 request of the district attorney, which must also be stated in detail 21 and not in conclusory terms, shall be appended to the motion. Such 22 district attorney, or an assistant district attorney acting on behalf of 23 such district attorney, may also serve and file an affirmation in the 24 nature of an amicus curiae in the family court in support of such 25 motion. 26 (ii) The court may grant a hearing on the motion at the request of any 27 party. The presentment agency shall have the burden to show: (A) aggra- 28 vating circumstances that bear directly on the manner in which such 29 crime or crimes were committed; and (B) if the respondent was not the 30 sole participant in such crime or crimes, that the respondent played a 31 major role or was the dominant participant in such crimes. If such 32 burden is met, the court may grant removal only if, after considering 33 the factors set forth in subdivision two of section 210.43 of the crimi- 34 nal procedure law, it determines that removal to a superior court is 35 necessary to accomplish the purposes set forth in section 1.05 of the 36 penal law and assure a just and fair result. 37 2. (a) If the court orders removal of all or a portion of the action 38 to a superior criminal court pursuant to subdivision one of this 39 section, it shall state on the record the factors upon which its deter- 40 mination is based, and shall give its reasons for removal in detail and 41 not in conclusory terms. 42 (b) Where a motion for removal pursuant to subdivision one of this 43 section has been denied, no further motion pursuant to this section may 44 be made by the presentment agency with respect to the same offense or 45 offenses. 46 3. (a) Where an order of removal has been granted pursuant to this 47 section, and the respondent is in detention pursuant to section 320.5 of 48 this part, the order of removal to the superior criminal court must 49 provide that the police officer or peace officer who made the arrest or 50 some other proper officer forthwith and with all reasonable speed take 51 the juvenile to the designated superior court. The order of removal must 52 specify a date certain within ten days from the date of the order of 53 removal for the respondent's appearance in such superior court provided, 54 however, that where the respondent is in detention or in the custody of 55 the sheriff that date must be not later than the next day the superior 56 court is in session.S. 4121 11 1 (b) The order of removal must direct that all of the pleadings and 2 proceedings in the action, or a certified copy of same be transferred to 3 the designated superior court and be delivered to and filed with the 4 clerk of that court. For the purposes of this subdivision the term 5 "pleadings and proceedings" includes the minutes of any hearing, inquiry 6 or trial held in the action and the minutes of any plea accepted and 7 entered. 8 (c) The order of removal must be signed by the judge of the family 9 court who directed the removal. 10 § 20. Subdivisions 1, 8 and 14 of section 301.2 of the family court 11 act, subdivisions 1 and 14 as added by chapter 920 of the laws of 1982 12 and subdivision 8 as amended by chapter 7 of the laws of 2007, are 13 amended to read as follows: 14 1. "Juvenile delinquent" means a person over seven and less than 15 [sixteen] eighteen years of age, who, having committed an act that would 16 constitute a crime if committed by an adult, (a) is not criminally 17 responsible for such conduct by reason of infancy, [or] (b) is the 18 defendant in an action ordered removed from a criminal court to the 19 family court pursuant to article seven hundred twenty-five of the crimi- 20 nal procedure law, or (c) could be, but is not, the defendant in an 21 action against a sixteen or seventeen year old authorized by subdivision 22 forty-two of section 1.20 of the criminal procedure law. 23 8. "Designated felony act" means an act which, if done by an adult, 24 would be a crime: (i) defined in sections 125.27 (murder in the first 25 degree); 125.25 (murder in the second degree); 135.25 (kidnapping in the 26 first degree); or 150.20 (arson in the first degree) of the penal law 27 committed by a person thirteen, fourteen [or], fifteen, sixteen or 28 seventeen years of age; or such conduct committed as a sexually moti- 29 vated felony, where authorized pursuant to section 130.91 of the penal 30 law; (ii) defined in sections 120.10 (assault in the first degree); 31 125.20 (manslaughter in the first degree); 130.35 (rape in the first 32 degree); 130.50 (criminal sexual act in the first degree); 130.70 33 (aggravated sexual abuse in the first degree); 135.20 (kidnapping in the 34 second degree) but only where the abduction involved the use or threat 35 of use of deadly physical force; 150.15 (arson in the second degree) or 36 160.15 (robbery in the first degree) of the penal law committed by a 37 person thirteen, fourteen [or], fifteen, sixteen, or seventeen years of 38 age; or such conduct committed as a sexually motivated felony, where 39 authorized pursuant to section 130.91 of the penal law; (iii) defined in 40 the penal law as an attempt to commit murder in the first or second 41 degree or kidnapping in the first degree committed by a person thirteen, 42 fourteen [or], fifteen, sixteen or seventeen years of age; or such 43 conduct committed as a sexually motivated felony, where authorized 44 pursuant to section 130.91 of the penal law; (iv) defined in section 45 140.30 (burglary in the first degree); subdivision one of section 140.25 46 (burglary in the second degree); subdivision two of section 160.10 47 (robbery in the second degree) of the penal law; or section 265.03 of 48 the penal law, where such machine gun or such firearm is possessed on 49 school grounds, as that phrase is defined in subdivision fourteen of 50 section 220.00 of the penal law committed by a person fourteen [or], 51 fifteen, sixteen or seventeen years of age; or such conduct committed as 52 a sexually motivated felony, where authorized pursuant to section 130.91 53 of the penal law; (v) defined in section 120.05 (assault in the second 54 degree) or 160.10 (robbery in the second degree) of the penal law 55 committed by a person fourteen [or], fifteen, sixteen or seventeen years 56 of age but only where there has been a prior finding by a court thatS. 4121 12 1 such person has previously committed an act which, if committed by an 2 adult, would be the crime of assault in the second degree, robbery in 3 the second degree or any designated felony act specified in paragraph 4 (i), (ii), or (iii) of this subdivision regardless of the age of such 5 person at the time of the commission of the prior act; or (vi) other 6 than a misdemeanor committed by a person at least seven but less than 7 [sixteen] eighteen years of age, but only where there has been two prior 8 findings by the court that such person has committed a prior felony. 9 14. Any reference in this article to "crime" or the commission of a 10 crime includes any act which, if done by an adult, would constitute a 11 crime, and any act committed by a youth aged sixteen or seventeen which, 12 if done by an adult, would constitute an offense as defined in subdivi- 13 sion one of section 10.00 of the penal law. 14 § 21. Subdivisions 1 and 2 of section 305.1 of the family court act, 15 as added by chapter 920 of the laws of 1982, are amended to read as 16 follows: 17 1. A private person may take a child under the age of [sixteen] eigh- 18 teen into custody in cases in which he may arrest an adult for a crime 19 under section 140.30 of the criminal procedure law. 20 2. Before taking such child under the age of [sixteen] eighteen into 21 custody, a private person must inform the child of the cause thereof and 22 require him to submit, except when he is taken into custody on pursuit 23 immediately after the commission of a crime. 24 § 22. Subdivision 2 of section 305.2 of the family court act, as added 25 by chapter 920 of the laws of 1982, is amended to read as follows: 26 2. An officer may take a child under the age of [sixteen] eighteen 27 into custody without a warrant in cases in which he may arrest a person 28 for a crime under article one hundred forty of the criminal procedure 29 law. 30 § 23. Paragraph (c) of subdivision 3 of section 311.1 of the family 31 court act, as added by chapter 920 of the laws of 1982, is amended to 32 read as follows: 33 (c) the fact that the respondent is a person under [sixteen] eighteen 34 years of age at the time of the alleged act or acts; 35 § 24. Subdivision 1 of section 352.2 of the family court act, as added 36 by chapter 920 of the laws of 1982, is amended to read as follows: 37 1. Upon the conclusion of the dispositional hearing, the court shall 38 enter an order of disposition: 39 (a) conditionally discharging the respondent in accord with section 40 353.1; or 41 (b) putting the respondent on probation in accord with section 353.2; 42 or 43 (c) continuing the proceeding and placing the respondent in accord 44 with section 353.3; or 45 (d) placing the respondent in accord with section 353.4; or 46 (e) continuing the proceeding and placing the respondent under a 47 restrictive placement in accord with section 353.5; or 48 (f) where applicable, in accord with section 353.7. 49 § 25. The family court act is amended by adding a new section 353.7 to 50 read as follows: 51 § 353.7. Dispositions for certain offenses committed by youths age 52 sixteen or seventeen. 1. If a respondent age sixteen or seventeen at the 53 time of such act is found to have committed an offense that is lawfully 54 classified as a violation or traffic infraction, the court may order the 55 respondent to pay any fine and/or surcharge authorized for such anS. 4121 13 1 offense committed by an adult, and/or order an unconditional discharge 2 or conditional discharge in accordance with section 353.1 of this part. 3 2. If a respondent age sixteen or seventeen at the time of such act is 4 found to have committed an offense that is lawfully classified as a 5 misdemeanor, the court may, in addition to any other disposition author- 6 ized by law, order the respondent to pay any fine and/or surcharge 7 authorized for such an offense committed by an adult. 8 3. If a respondent age sixteen or seventeen at the time of such act is 9 found to have committed an offense that is lawfully classified as a 10 felony, the court may, in addition to any other disposition authorized 11 by law, order the respondent to pay any fine and/or surcharge authorized 12 by law for such an offense committed by an adult. 13 4. If a respondent age sixteen or seventeen at the time of such act is 14 found to have committed a traffic infraction, violation, misdemeanor or 15 felony prohibited by the vehicle and traffic law, the court may take any 16 action with respect to such person's driver's license or driving privi- 17 lege as is authorized by law for such a violation committed by an adult. 18 5. For purposes of this section, "offense" shall have the same meaning 19 as in subdivision one of section 10.00 of the penal law. 20 § 26. Subdivision 18 of section 10.00 of the penal law, as amended by 21 chapter 7 of the laws of 2007, is amended to read as follows: 22 18. "Juvenile offender" means, where prosecution is authorized by law, 23 including but not limited to section 726.05 of the criminal procedure 24 law and section 325.5 of the family court act: (1) a person thirteen 25 years old who is criminally responsible for acts constituting murder in 26 the second degree as defined in subdivisions one and two of section 27 125.25 of this chapter or such conduct as a sexually motivated felony, 28 where authorized pursuant to section 130.91 [of the penal law]; and 29 (2) a person fourteen [or], fifteen, sixteen or seventeen years old 30 who is criminally responsible for acts constituting the crimes defined 31 in subdivisions one and two of section 125.25 (murder in the second 32 degree) and in subdivision three of such section provided that the 33 underlying crime for the murder charge is one for which such person is 34 criminally responsible; section 135.25 (kidnapping in the first degree); 35 150.20 (arson in the first degree); subdivisions one and two of section 36 120.10 (assault in the first degree); 125.20 (manslaughter in the first 37 degree); subdivisions one and two of section 130.35 (rape in the first 38 degree); subdivisions one and two of section 130.50 (criminal sexual act 39 in the first degree); 130.70 (aggravated sexual abuse in the first 40 degree); 140.30 (burglary in the first degree); subdivision one of 41 section 140.25 (burglary in the second degree); 150.15 (arson in the 42 second degree); 160.15 (robbery in the first degree); subdivision two of 43 section 160.10 (robbery in the second degree) of this chapter; or 44 section 265.03 of this chapter, where such machine gun or such firearm 45 is possessed on school grounds, as that phrase is defined in subdivision 46 fourteen of section 220.00 of this chapter; or defined in this chapter 47 as an attempt to commit murder in the second degree or kidnapping in the 48 first degree, or such conduct as a sexually motivated felony, where 49 authorized pursuant to section 130.91 [of the penal law]. 50 § 27. Subdivisions 1 and 2 of section 30.00 of the penal law, subdivi- 51 sion 1 as amended by chapter 481 of the laws of 1978 and subdivision 2 52 as amended by chapter 7 of the laws of 2007, are amended to read as 53 follows: 54 1. Except as provided in subdivision two of this section, a person 55 less than [sixteen] eighteen years old is not criminally responsible for 56 conduct.S. 4121 14 1 2. (a) A person thirteen, fourteen [or], fifteen, sixteen or seventeen 2 years of age is criminally responsible for acts constituting murder in 3 the second degree as defined in subdivisions one and two of section 4 125.25 and in subdivision three of such section provided that the under- 5 lying crime for the murder charge is one for which such person is crimi- 6 nally responsible or for such conduct as a sexually motivated felony, 7 where authorized pursuant to section 130.91 [of the penal law], except 8 that, in the case of a person thirteen, fourteen or fifteen years of 9 age, the person is only criminally responsible pursuant to this para- 10 graph if such action against him or her was ordered removed from a fami- 11 ly court to a superior criminal court pursuant to section 325.5 of the 12 family court act and section 726.05 of the criminal procedure law; and 13 (b) a person fourteen [or], fifteen, sixteen or seventeen years of age 14 is criminally responsible for acts constituting the crimes defined in 15 section 135.25 (kidnapping in the first degree); 150.20 (arson in the 16 first degree); subdivisions one and two of section 120.10 (assault in 17 the first degree); 125.20 (manslaughter in the first degree); subdivi- 18 sions one and two of section 130.35 (rape in the first degree); subdivi- 19 sions one and two of section 130.50 (criminal sexual act in the first 20 degree); 130.70 (aggravated sexual abuse in the first degree); 140.30 21 (burglary in the first degree); subdivision one of section 140.25 22 (burglary in the second degree); 150.15 (arson in the second degree); 23 160.15 (robbery in the first degree); subdivision two of section 160.10 24 (robbery in the second degree) of this chapter; or section 265.03 of 25 this chapter, where such machine gun or such firearm is possessed on 26 school grounds, as that phrase is defined in subdivision fourteen of 27 section 220.00 of this chapter; or defined in this chapter as an attempt 28 to commit murder in the second degree or kidnapping in the first degree, 29 or for such conduct as a sexually motivated felony, where authorized 30 pursuant to section 130.91 [of the penal law], except that, in the case 31 of a person fourteen or fifteen years of age, the person is only crimi- 32 nally responsible pursuant to this paragraph if such action against him 33 or her was ordered removed from a family court to a superior criminal 34 court pursuant to section 325.5 of the family court act and section 35 726.05 of the criminal procedure law. 36 § 28. Subdivision 2 of section 60.10 of the penal law, as amended by 37 chapter 411 of the laws of 1979, is amended to read as follows: 38 2. Subdivision one of this section shall apply when sentencing a juve- 39 nile offender notwithstanding the provisions of any other law that deals 40 with the authorized sentence for persons who are not juvenile offenders. 41 Provided, however, that the limitation prescribed by this section shall 42 not be deemed or construed to bar use of a conviction of a juvenile 43 offender, other than a juvenile offender who has been adjudicated a 44 youthful offender pursuant to section 720.20 of the criminal procedure 45 law, as a previous or predicate felony offender under section 70.04, 46 70.06, 70.08 or 70.10, when sentencing a person who commits a felony 47 after he has reached the age of [sixteen] eighteen. 48 § 29. Paragraph (a) of subdivision 3 of section 70.05 of the penal 49 law, as amended by chapter 174 of the laws of 2003, is amended to read 50 as follows: 51 (a) For the class A felony of murder in the second degree, the minimum 52 period of imprisonment shall be fixed by the court and shall be not less 53 than five years but shall not exceed nine years provided, however, that 54 where the sentence is for an offense specified in subdivision one or two 55 of section 125.25 of this chapter and the defendant was fourteen [or], 56 fifteen, sixteen or seventeen years old at the time of such offense, theS. 4121 15 1 minimum period of imprisonment shall be not less than seven and one-half 2 years but shall not exceed fifteen years; 3 § 30. Paragraph (f) of subdivision 1 of section 70.30 of the penal 4 law, as added by chapter 481 of the laws of 1978 and as relettered by 5 chapter 3 of the laws of 1995, is amended to read as follows: 6 (f) The aggregate maximum term of consecutive sentences imposed upon a 7 juvenile offender for two or more crimes, not including a class A felo- 8 ny, committed before he has reached the age of [sixteen] eighteen, 9 shall, if it exceeds ten years, be deemed to be ten years. If consec- 10 utive indeterminate sentences imposed upon a juvenile offender include a 11 sentence for the class A felony of arson in the first degree or for the 12 class A felony of kidnapping in the first degree, then the aggregate 13 maximum term of such sentences shall, if it exceeds fifteen years, be 14 deemed to be fifteen years. Where the aggregate maximum term of two or 15 more consecutive sentences is reduced by a calculation made pursuant to 16 this paragraph, the aggregate minimum period of imprisonment, if it 17 exceeds one-half of the aggregate maximum term as so reduced, shall be 18 deemed to be one-half of the aggregate maximum term as so reduced. 19 § 31. Paragraph (d) of subdivision 1 of section 70.30 of the penal 20 law, as added by chapter 481 of the laws of 1978, is amended to read as 21 follows: 22 (d) The aggregate maximum term of consecutive sentences imposed upon a 23 juvenile offender for two or more crimes, not including a class A felo- 24 ny, committed before he has reached the age of [sixteen] eighteen, 25 shall, if it exceeds ten years, be deemed to be ten years. If consec- 26 utive indeterminate sentences imposed upon a juvenile offender include a 27 sentence for the class A felony of arson in the first degree or for the 28 class A felony of kidnapping in the first degree, then the aggregate 29 maximum term of such sentences shall, if it exceeds fifteen years, be 30 deemed to be fifteen years. Where the aggregate maximum term of two or 31 more consecutive sentences is reduced by a calculation made pursuant to 32 this paragraph, the aggregate minimum period of imprisonment, if it 33 exceeds one-half of the aggregate maximum term as so reduced, shall be 34 deemed to be one-half of the aggregate maximum term as so reduced. 35 § 32. Severability. If any clause, sentence, paragraph, subdivision or 36 part of this act, or the application thereof to any person or circum- 37 stance, shall be adjudged by any court of competent jurisdiction to be 38 invalid or unconstitutional, such judgment shall not affect, impair or 39 invalidate the reminder thereof, but shall be confined in its operation 40 to the clause, sentence, paragraph, subdivision or part of this act, or 41 in its application to the person or circumstance, directly involved in 42 the controversy in which such judgment shall have been rendered. 43 § 33. This act shall take effect 18 months after it shall have become 44 a law; provided, however, that the amendments to paragraph (f) of subdi- 45 vision 1 of section 70.30 of the penal law made by section thirty of 46 this act shall be subject to the expiration and reversion of such para- 47 graph pursuant to subdivision d of section 74 of chapter 3 of the laws 48 of 1995, as amended, when upon such date the provisions of section thir- 49 ty-one of this act shall take effect.
