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.