Bill Text: NY S04980 | 2019-2020 | General Assembly | Amended


Bill Title: Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles into custody.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced) 2019-06-20 - COMMITTED TO RULES [S04980 Detail]

Download: New_York-2019-S04980-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         4980--A
            Cal. No. 628

                               2019-2020 Regular Sessions

                    IN SENATE

                                      April 3, 2019
                                       ___________

        Introduced  by  Sens. BAILEY, HOYLMAN, JACKSON, MONTGOMERY -- read twice
          and ordered printed, and when printed to be committed to the Committee
          on Children and Families -- reported favorably  from  said  committee,
          ordered  to  first  and  second  report,  ordered  to a third reading,
          amended and ordered reprinted, retaining its place  in  the  order  of
          third reading

        AN  ACT to amend the family court act and the criminal procedure law, in
          relation to the custodial interrogation of juveniles by  law  enforce-
          ment

          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. Subdivision 3 of section 305.2 of the family court act,  as
     2  added by chapter 920 of the laws of 1982, is amended to read as follows:
     3    3. If an officer takes such child into custody or if a child is deliv-
     4  ered  to  him  or  her under section 305.1, he or she shall immediately,
     5  before transporting the child to the police station  house,  notify  the
     6  parent  or  other person legally responsible for the child's care, or if
     7  such legally responsible person is unavailable the person with whom  the
     8  child resides, that the child has been taken into custody.
     9    §  2.  Paragraph  (a)  of subdivision 4 of section 305.2 of the family
    10  court act, as added by chapter 920 of the laws of 1982,  is  amended  to
    11  read as follows:
    12    (a)  when  the officer reasonably believes such parent or other person
    13  legally responsible for the child's care will appear, take the child  to
    14  his or her home, the station house, or another location agreed upon with
    15  the  parent  or person legally responsible, and release the child to the
    16  custody of [his parents or other  person  legally  responsible  for  his
    17  care]  such person upon the issuance in accordance with section 307.1 of
    18  a family court appearance ticket to the child and the  person  to  whose
    19  custody the child is released; or

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10989-02-9

        S. 4980--A                          2

     1    §  3.  Paragraph  (b)  of subdivision 4 of section 305.2 of the family
     2  court act, as amended by section 63 of part WWW of  chapter  59  of  the
     3  laws of 2017, is amended to read as follows:
     4    (b)  when  the officer does not reasonably believe the parent or other
     5  person legally responsible for the child's  care  will  appear  for  the
     6  child,  forthwith and with all reasonable speed take the child directly,
     7  and without his or her first being taken to the police station house, to
     8  the family court located in the county in which the act occasioning  the
     9  taking  into  custody allegedly was committed, or, when the family court
    10  is not in session, to the most accessible magistrate, if any, designated
    11  by the appellate division of the supreme court in the applicable depart-
    12  ment to conduct a hearing under section 307.4 [of this part, unless  the
    13  officer  determines that it is necessary to question the child, in which
    14  case he or she may take the child to a facility designated by the  chief
    15  administrator  of  the courts as a suitable place for the questioning of
    16  children or, upon the consent  of  a  parent  or  other  person  legally
    17  responsible  for  the  care  of  the child, to the child's residence and
    18  there question him or her for a reasonable period of time]; or
    19    § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
    20  court  act,  as amended by section 3 of part G of chapter 58 of the laws
    21  of 2010, is amended to read as follows:
    22    (c) when the officer does not release the child pursuant to  paragraph
    23  (a)  of  this  subdivision,  or  take  the child to family court or to a
    24  magistrate pursuant to paragraph (b) of this subdivision, take the child
    25  to a place certified by the office of children and family services as  a
    26  juvenile detention facility for the reception of children; or
    27    §  5.  Subdivision  5  of  section  305.2  of the family court act, as
    28  amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
    29  follows:
    30    5.  If  such  child has allegedly committed a designated felony act as
    31  defined in subdivision eight of section 301.2, and the family  court  in
    32  the  county  is  in  session, the officer shall forthwith take the child
    33  directly to such family court, unless the officer takes the child  to  a
    34  facility  for  questioning in accordance with [paragraph (b) of subdivi-
    35  sion four. If such child has not allegedly committed a designated felony
    36  act and such family court is in session, the officer shall either forth-
    37  with take the child directly to such family court,  unless  the  officer
    38  takes  the  child to a facility for questioning in accordance with para-
    39  graph (b) of subdivision four or release the child  in  accordance  with
    40  paragraph (a) of subdivision four] subdivision seven.
    41    §  6. Subdivision 6 of section 305.2 of the family court act, as added
    42  by chapter 920 of the laws of 1982, is amended to read as follows:
    43    6. [In all other cases] If such child has not  allegedly  committed  a
    44  designated  felony act, and in the absence of special circumstances, the
    45  officer shall release the child in  accordance  with  paragraph  (a)  of
    46  subdivision four.
    47    § 7. Subdivisions 7 and 8 of section 305.2 of the family court act, as
    48  amended by chapter 398 of the laws of 1983, are amended and a new subdi-
    49  vision 10 is added to read as follows:
    50    7.   If the officer determines that questioning of the child is neces-
    51  sary prior to taking action authorized by subdivision four or five,  the
    52  officer  may take the child to a facility designated by the chief admin-
    53  istrator of the courts as a suitable place for the questioning of  chil-
    54  dren  or, upon the consent of a parent or other person legally responsi-
    55  ble for the care of the child,  to  the  child's  residence  and  there,
    56  subject  to  the  requirements of subdivision eight, question him or her

        S. 4980--A                          3

     1  for a reasonable period of time. Questioning is necessary only when  the
     2  officer  reasonably  determines  that the child's life or health, or the
     3  life or health of another individual, is in imminent danger and that the
     4  child  may  have  information  that  would  assist the officer in taking
     5  protective action.
     6    8. A child shall not be questioned pursuant  to  this  section  unless
     7  [he] or until:
     8    (a)  the child and a person required to be notified pursuant to subdi-
     9  vision three if present, have been advised:
    10    [(a)] (i) of the child's right to remain silent;
    11    [(b)] (ii) that the statements made by the child  may  be  used  in  a
    12  court of law;
    13    [(c)]  (iii)  of the child's right to have an attorney present at such
    14  questioning; and
    15    [(d)] (iv) of the child's right to have an attorney provided  for  him
    16  or her without charge if he or she is indigent; and
    17    (b)  the  child  has  consulted with legal counsel in person, by tele-
    18  phone, or by video conference. This consultation may not be waived.
    19    [8.] 9. In determining the suitability of questioning and  determining
    20  the  reasonable period of time for questioning such a child, the child's
    21  age, the presence or absence of his or  her  parents  or  other  persons
    22  legally  responsible  for  his  or her care and notification pursuant to
    23  subdivision three shall be included among relevant considerations.
    24    10. In addition to statements that must be suppressed as involuntarily
    25  made within the definition in subdivision two of section 344.2, a state-
    26  ment shall be suppressed: when the child has not  consulted  with  legal
    27  counsel as required by paragraph (b) of subdivision eight; when a person
    28  notified pursuant to subdivision three, if present, has not been advised
    29  of  and  voluntarily  waived  the  rights delineated in paragraph (a) of
    30  subdivision eight; or when the questioning of the child was  not  neces-
    31  sary within the definition in subdivision seven.
    32    §  8.  Section  724  of  the family court act, the section heading and
    33  subdivisions (b) and (c) as amended by chapter 843 of the laws of  1980,
    34  subdivision  (a)  as  amended  by chapter 920 of the laws of 1982, para-
    35  graphs (i), (ii), and (iv) of subdivision (b) as amended by section 4 of
    36  part E of chapter 57 of the laws of 2005, paragraph (iii) of subdivision
    37  (b) as amended by section 7 of part M of chapter 56 of the laws of 2017,
    38  and subdivision (d) as added by chapter 809 of  the  laws  of  1963,  is
    39  amended to read as follows:
    40    §  724.  Duties  of  police officer or peace officer after taking into
    41  custody or on delivery by private person. (a) If a peace  officer  or  a
    42  police  officer  takes  into  custody or if a person is delivered to him
    43  under section seven hundred twenty-three, the officer shall immediately,
    44  before transporting the child to any other location, notify  the  parent
    45  or  other  person  legally  responsible for his care, or the person with
    46  whom he is domiciled, that he has been taken into custody.
    47    (b) After making every reasonable effort to give notice  under  [para-
    48  graph] subdivision (a) of this section, the officer shall
    49    (i)  when  the officer reasonably believes such parent or other person
    50  legally responsible for the child's care will appear, take the child  to
    51  his  or  her  home, the police station house, or another location agreed
    52  upon with the parent or person  legally  responsible,  and  release  the
    53  youth to the custody of [his or her parent or other] such person [legal-
    54  ly  responsible  for  his or her care] upon the written promise, without
    55  security, of the person to whose custody the youth is released  that  he
    56  or she will produce the youth before the lead agency designated pursuant

        S. 4980--A                          4

     1  to section seven hundred thirty-five of this article in that county at a
     2  time and place specified in writing; or
     3    (ii)  when the officer reasonably believes such parent or other person
     4  legally responsible for the child's care  will  appear  for  the  child,
     5  forthwith  and  with  all  reasonable speed take the youth directly, and
     6  without first being taken to the police station house, to the designated
     7  lead agency located in the county  in  which  the  act  occasioning  the
     8  taking  into  custody allegedly was done[, unless the officer determines
     9  that it is necessary to question the youth, in which case he or she  may
    10  take  the  youth  to a facility designated by the chief administrator of
    11  the courts as a suitable place for the questioning of youth or, upon the
    12  consent of a parent or other person legally responsible for the care  of
    13  the  youth, to the youth's residence and there question him or her for a
    14  reasonable period of time]; or
    15    (iii) take a youth in need of crisis intervention or respite  services
    16  to  a  runaway  and  homeless  youth  crisis  services  program or other
    17  approved respite or crisis program; or
    18    (iv) take the youth directly to the family court located in the county
    19  in which the act occasioning the taking into custody was allegedly done,
    20  provided that the officer affirms on the record that he or she attempted
    21  to exercise the options identified in paragraphs (i), (ii) and (iii)  of
    22  this  subdivision, was unable to exercise these options, and the reasons
    23  therefor.
    24    (c) In the absence of special circumstances, the officer shall release
    25  the child in accord with paragraph [(b)] (i) of subdivision (b) of  this
    26  section.
    27    (d)  If the officer determines that questioning of the child is neces-
    28  sary prior to taking  action  authorized  by  subdivision  (b)  of  this
    29  section,  the officer may take the child to a facility designated by the
    30  chief administrator of the courts as a suitable place for the  question-
    31  ing of children or, upon the consent of a parent or other person legally
    32  responsible  for  the  care  of  the child, to the child's residence and
    33  there, subject to the requirements of subdivision (e) of  this  section,
    34  question  him  or  her  for a reasonable period of time.  Questioning is
    35  necessary only when the officer reasonably determines that  the  child's
    36  life or health, or the life or health of another individual, is in immi-
    37  nent  danger  and  that the child may have information that would assist
    38  the officer in taking protective action.
    39    (e) In determining the suitability of questioning and determining what
    40  is a "reasonable period of time" for questioning a  child,  the  child's
    41  age [and], the presence or absence of his parents or other person legal-
    42  ly responsible for his care and notification pursuant to subdivision (a)
    43  of this section shall be included among the relevant considerations.
    44    (f)  No statement made to a peace officer or a police officer prior to
    45  the commencement of a fact-finding hearing may be admitted into evidence
    46  at a fact-finding hearing.
    47    § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
    48  amended by section 20 of part WWW of chapter 59 of the laws of 2017,  is
    49  amended to read as follows:
    50    6.  (a)  Upon  arresting  a  juvenile  offender or a person sixteen or
    51  commencing October first, two thousand nineteen, seventeen years of  age
    52  without  a  warrant, the police officer shall immediately, before trans-
    53  porting the child to the police station  house,  notify  the  parent  or
    54  other  person legally responsible for his or her care or the person with
    55  whom he or she is domiciled, that such juvenile offender or  person  has

        S. 4980--A                          5

     1  been  arrested,  and  the  location  of the facility where he or she [is
     2  being] will be detained.
     3    (b) If the officer determines that it is necessary to question a juve-
     4  nile  offender  or  such  person,  the officer must take him or her to a
     5  facility designated by the chief administrator of the courts as a  suit-
     6  able  place  for  the  questioning of children or, upon the consent of a
     7  parent or other person legally responsible for the care of the  juvenile
     8  or  such  person,  to  his  or  her  residence and there, subject to the
     9  requirements of paragraph (c) of this subdivision, question him  or  her
    10  for a reasonable period of time.  Questioning is necessary only when the
    11  officer  reasonably  determined  that the child's life or health, or the
    12  life or health of another individual, is in imminent danger and that the
    13  child may have information that  would  assist  the  officer  in  taking
    14  protective action.
    15    (c)  A juvenile offender or such person shall not be questioned pursu-
    16  ant to this section unless or until:
    17    (i) he or she and a person required to be notified pursuant  to  para-
    18  graph (a) of this subdivision, if present, have been advised:
    19    [(a)]  (A) of the juvenile offender's or such person's right to remain
    20  silent;
    21    [(b)] (B) that the statements made by him or her  may  be  used  in  a
    22  court of law;
    23    [(c)]  (C)  of  his  or  her right to have an attorney present at such
    24  questioning; and
    25    [(d)] (D) of his or her right to have an attorney provided for him  or
    26  her without charge if he or she is unable to afford counsel[.]; and
    27    (ii) the juvenile offender or such person has consulted with an attor-
    28  ney  in  person, by telephone, or by video conference. This consultation
    29  may not be waived.
    30    (d) In determining the suitability of questioning and determining  the
    31  reasonable  period  of  time for questioning such a juvenile offender or
    32  person, his or her age, the presence or absence of his or her parents or
    33  other persons legally responsible for his or her care  and  notification
    34  pursuant  to  paragraph  (a) of this subdivision shall be included among
    35  relevant considerations.
    36    (e) In addition to statements that must be suppressed as involuntarily
    37  made within the definition in subdivision two of section 60.45  of  this
    38  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    39  consulted with an attorney as required by paragraph (c) of this subdivi-
    40  sion; when a person notified pursuant to paragraph (a) of this  subdivi-
    41  sion,  if  present,  has  not been advised of and voluntarily waived the
    42  rights delineated in paragraph (c) of  this  subdivision;  or  when  the
    43  questioning  of  the  child  was  not necessary within the definition in
    44  paragraph (b) of this subdivision.
    45    § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
    46  as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
    47  is amended to read as follows:
    48    5. (a) Upon arresting a juvenile  offender  or  a  person  sixteen  or
    49  commencing  October first, two thousand nineteen, seventeen years of age
    50  without a warrant, the peace officer shall  immediately,  before  trans-
    51  porting  the  child  to  the  police station house, notify the parent or
    52  other person legally responsible for his or her care or the person  with
    53  whom  he  or she is domiciled, that such juvenile offender or person has
    54  been arrested, and the location of the facility  where  he  or  she  [is
    55  being] will be detained.

        S. 4980--A                          6

     1    (b) If the officer determines that it is necessary to question a juve-
     2  nile  offender  or  such  person,  the officer must take him or her to a
     3  facility designated by the chief administrator of the courts as a  suit-
     4  able  place  for  the  questioning of children or, upon the consent of a
     5  parent  or  other  person legally responsible for the care of a juvenile
     6  offender or such person, to his or her residence and there,  subject  to
     7  the  requirements  of paragraph (c) of this subdivision, question him or
     8  her for a reasonable period of time.  Questioning is necessary only when
     9  the officer reasonably determines that the child's life  or  health,  or
    10  the life or health of another individual, is in imminent danger and that
    11  the  child  may have information that would assist the officer in taking
    12  protective action.
    13    (c) A juvenile offender or such person shall not be questioned  pursu-
    14  ant to this section unless or until:
    15    (i)  the  juvenile offender or such person and a person required to be
    16  notified pursuant to paragraph (a) of this subdivision, if present, have
    17  been advised:
    18    [(a)] (A) of his or her right to remain silent;
    19    [(b)] (B) that the statements made by the juvenile  offender  or  such
    20  person may be used in a court of law;
    21    [(c)]  (C)  of  his  or  her right to have an attorney present at such
    22  questioning; and
    23    [(d)] (D) of his or her right to have an attorney provided for him  or
    24  her without charge if he or she is unable to afford counsel[.]; and
    25    (ii) the juvenile offender or such person has consulted with an attor-
    26  ney  in  person,  by telephone or by video conference. This consultation
    27  may not be waived.
    28    (d) In determining the suitability of questioning and determining  the
    29  reasonable  period  of  time for questioning such a juvenile offender or
    30  such person, his or her age, the presence  or  absence  of  his  or  her
    31  parents  or  other  persons  legally responsible for his or her care and
    32  notification pursuant to paragraph (a)  of  this  subdivision  shall  be
    33  included among relevant considerations.
    34    (e) In addition to statements that must be suppressed as involuntarily
    35  made  within  the definition in subdivision two of section 60.45 of this
    36  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    37  consulted with an attorney as required by paragraph (c) of this subdivi-
    38  sion;  when a person notified pursuant to paragraph (a) of this subdivi-
    39  sion, if present, has not been advised of  and  voluntarily  waived  the
    40  rights  delineated  in  paragraph  (c)  of this subdivision; or when the
    41  questioning of the child was not  necessary  within  the  definition  in
    42  paragraph (b) of this subdivision.
    43    §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
    44  as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
    45  is amended to read as follows:
    46    5.  (a)  If  a police officer takes an arrested juvenile offender or a
    47  person sixteen or commencing  October  first,  two  [thosuand]  thousand
    48  nineteen,  seventeen years of age into custody, the police officer shall
    49  immediately, before transporting the child to the police  station  house
    50  notify  the  parent  or  other person legally responsible for his or her
    51  care or the person with whom he or she is domiciled, that such  juvenile
    52  offender  or  person has been arrested, and the location of the facility
    53  where he or she [is being] will be detained.
    54    (b) If the officer determines that it is necessary to question a juve-
    55  nile offender or such person the officer must  take  him  or  her  to  a
    56  facility  designated by the chief administrator of the courts as a suit-

        S. 4980--A                          7

     1  able place for the questioning of children or, upon  the  consent  of  a
     2  parent  or other person legally responsible for the care of the juvenile
     3  offender or such person, to his or her residence and there,  subject  to
     4  the  requirements  of paragraph (c) of this subdivision, question him or
     5  her for a reasonable period of time.  Questioning is necessary only when
     6  the officer reasonably determines that the child's life  or  health,  or
     7  the  life or the health of another individual, is in imminent danger and
     8  that the child may have information that would  assist  the  officer  in
     9  taking protective action.
    10    (c)  A juvenile offender or such person shall not be questioned pursu-
    11  ant to this section unless or until:
    12    (i) he or she and a person required to be notified pursuant  to  para-
    13  graph (a) of this subdivision, if present, have been advised:
    14    [(a)] (A) of his or her right to remain silent;
    15    [(b)]  (B)  that  the statements made by the juvenile offender or such
    16  person may be used in a court of law;
    17    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    18  questioning; and
    19    [(d)]  (D) of his or her right to have an attorney provided for him or
    20  her without charge if he or she is unable to afford counsel.
    21    (d) In determining the suitability of questioning and determining  the
    22  reasonable  period  of  time for questioning such a juvenile offender or
    23  such person, his or her age, the presence  or  absence  of  his  or  her
    24  parents  or  other  persons  legally responsible for his or her care and
    25  notification pursuant to paragraph (a)  of  this  subdivision  shall  be
    26  included among relevant considerations.
    27    (e) In addition to statements that must be suppressed as involuntarily
    28  made  within  the definition in subdivision two of section 60.45 of this
    29  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    30  consulted with an attorney as required by paragraph (c) of this subdivi-
    31  sion;  when a person notified pursuant to paragraph (a) of this subdivi-
    32  sion, if present, has not been advised of  and  voluntarily  waived  the
    33  rights  delineated  in  paragraph  (c)  of this subdivision; or when the
    34  questioning of the child was not  necessary  within  the  definition  in
    35  paragraph (b) of this subdivision.
    36    §  12.  This  act  shall take effect April 1, 2020; provided, however,
    37  that the amendments to subdivision 6 of section 140.20, subdivision 5 of
    38  section 140.27, and subdivision 5 of  section  140.40  of  the  criminal
    39  procedure  law  made by sections nine, ten, and eleven of this act shall
    40  take effect on the same date and in the same manner as subdivision b  of
    41  section 106 of part WWW of chapter 59 of the laws of 2017, takes effect.
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