FCA ART 3 VOLUME 1 MASTER Flashcards
301.1. - Purpose. The purpose of this article is to establish procedures in accordance with due process of law
(a) to determine whether a person is a juvenile delinquent and
(b) to issue an appropriate order of disposition for any person who is adjudged a juvenile delinquent.
301.1. - Purpose. The purpose of this article is to establish procedures in accordance with due process of law
(a) to determine whether a person is a juvenile delinquent and
(b) to issue an appropriate order of disposition for any person who is adjudged a juvenile delinquent.
301.1 - In any proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community.
In any proceeding under this article, the court shall consider the needs and best interests of the respondent as well as the need for protection of the community.
“Detention” means the temporary care and maintenance of children away from their own homes in a facility certified by ________ as a detention facility.
The division for youth
__________ means a facility characterized by physically restricting construction, hardware and procedures.
“Secure detention facility”
“Designated class A felony act” means a designated felony act that would constitute a class A felony if committed by an adult.
“Designated class A felony act” means a designated felony act that would constitute a class A felony if committed by an adult.
“Secure Facility” characterized by Physically restrictive construction, hardware and procedures and is designated as a secure facility by ____________
the division of youth.
“Fact-finding hearing” means a hearing to determine whether the respondent or respondents _____________ alleged in the petition or petitions.
committed the crime or crimes
“Dispositional hearing” means a hearing to determine whether the respondent requires _________, _____________, or _____________
supervision, treatment or confinement.
SuTreCon
The agency or authority which is responsible for presenting a juvenile delinquency petition
* Presentment Agency*
* Presentment Agency*
IN NYC
CORPORATION COUNSEL
* Presentment Agency*
OUTSIDE NYC
COUNTY ATTORNEY
* Presentment Agency*
ONLY ON DESIGNATED FELONY ACT
DISTRICT ATTORNEY
“Incapacitated Person” Means a respondent who, as a result of mental illness, or intellectual or developmental disability, lacks the capacity to __________ or _____________
understand the proceedings against him/her or to assist in his/her own defense.
Aggravated circumstances:
where a child has been either ________ or ________
severely or repeatedly abused
Aggravated circumstances:
or where a child has subsequently been found to be an abused child within ____________ after return home following placement in foster care as a result of being found to be a neglected child provided that the respondent or respondents in each of the foregoing proceedings was the same;
FIVE (5) YEARS
Aggravated circumstances:
or where the court finds by clear and convincing evidence that the parent of a child in foster care has refused and has failed completely, over a period of at least __________ from the date of removal, to engage in services necessary to eliminate the risk of abuse or neglect if returned to the parent, and has failed to secure services on his or her own or otherwise adequately prepare for the return home and, after being informed by the court that such an admission could eliminate the requirement that the local department of social services provide reunification services to the parent, the parent has stated in court under oath that he or she intends to continue to refuse such necessary services and is unwilling to secure such services independently or otherwise prepare for the child’s return home; provided, however, that if the court finds that adequate justification exists for the failure to engage in or secure such services, including but not limited to a lack of child care, a lack of transportation, and an inability to attend services that conflict with the parent’s work schedule, such failure shall not constitute an aggravated circumstance;
SIX (6) MONTHS
Aggravated circumstances:
or where a court has determined a CHILD ___________ was abandoned by a parent with an intent to wholly abandon such child and with the intent that the child be safe from physical injury and cared for in an appropriate manner
FIVE (5) DAYS OLD OR YOUNGER
Permanency Hearing: Means an initial hearing or subsequent hearing held for the purpose of reviewing the______________ and the appropriateness of the permanency plan developed by the Commissioner of Social Services or the Office Of Children And Family Services.
foster care status of the respondent
“Designated educational official” shall mean an employee or representative of a school who is designated to receive records pursuant to this article and to coordinate the student’s participation in programs which may exist in the school district or community.
Such notification shall be kept separate and apart from such student’s school records and shall be accessible only by the designated educational official.
Such notification shall not be part of such student’s permanent school record and shall not be included in any documentation regarding such student and shall be destroyed at such time as such student is no longer enrolled in the school district.
At no time shall such notification be used for any purpose other than those specified in this subdivision.
“Designated educational official” shall mean an employee or representative of a school who is designated to receive records pursuant to this article and to coordinate the student’s participation in programs which may exist in the school district or community.
Such notification shall be kept separate and apart from such student’s school records and shall be accessible only by the designated educational official.
Such notification shall not be part of such student’s permanent school record and shall not be included in any documentation regarding such student and shall be destroyed at such time as such student is no longer enrolled in the school district.
At no time shall such notification be used for any purpose other than those specified in this subdivision.
301.3. Applicability of article to actions and matters occurring before and after effective date
The provisions of this article apply to:
all juvenile delinquency actions and proceedings commenced upon or after the effective date of this article and all appeals and other post-judgment proceedings
all juvenile delinquency actions and proceedings commenced prior to the effective date of this article but still pending on such effective date
appeals and other post-judgment proceedings commenced upon or after such effective date which relate or attach to juvenile delinquency actions and proceedings commenced or concluded prior to such effective date provided that, if application of such provisions in any particular case would not be feasible or would work injustice, the provisions of article seven pertaining to juvenile delinquency actions apply thereto, as such article seven read immediately prior to the effective date of this article.
301.3. Applicability of article to actions and matters occurring before and after effective date
The provisions of this article apply to:
all juvenile delinquency actions and proceedings commenced upon or after the effective date of this article and all appeals and other post-judgment proceedings
all juvenile delinquency actions and proceedings commenced prior to the effective date of this article but still pending on such effective date
appeals and other post-judgment proceedings commenced upon or after such effective date which relate or attach to juvenile delinquency actions and proceedings commenced or concluded prior to such effective date provided that, if application of such provisions in any particular case would not be feasible or would work injustice, the provisions of article seven pertaining to juvenile delinquency actions apply thereto, as such article seven read immediately prior to the effective date of this article.
FCA 302.1 – JURISDICTION
Family Court has_______________ to determine if a person is JD.
EXCLUSIVE ORIGINAL JURISDICTION
FCA 302.1 – JURISDICTION
AGE AT _____________ CONTROLS.
TIME ACT COMMITTED
FCA 302.1 – JURISDICTION
With respect to a person over __________ and __________ , whenever a crime and a violation arise out of the same transaction or occurrence, a charge alleging both offenses shall be made returnable before the court having jurisdiction over the ________
Nothing herein provided shall be construed to prevent a court, having jurisdiction over a violation relating to a criminal act from lawfully entering a fact finding order where such order is not based upon the count or counts of the petition alleging such criminal act.
(MAYBE? BARD THINKS IT MEANS THIS: In other words, even if a court is hearing a case about a violation related to a criminal act, it can still issue an order that is not related to the criminal act, as long as the order is allowed under section 345.1 of the law. For example, a court could issue an order requiring a person to attend drug treatment, even if the person is not being charged with a drug crime.”
AIXTEEN (16) AND LESS THAN EIGHTEEN (18) YEARS OF AGE……….. CRIME.
FCA 302.1 – JURISDICTION
Where a proceeding had been commenced in the youth part of a superior court for an act alleged to have been committed prior a person’s ____________ and then had been removed to family court, the ___________ shall exercise jurisdiction under this article, even if the respondent may be over the age of _________ prior to the proceeding having commenced in the family court.
EIGHTEENTH (18) BIRTHDAY…… family court …….. EIGHTEEN (18)
FCA 302.2 - STATUTE OF LIMITATIONS
Basic Juvenile Delinquency proceeding
CPL 30.10 SOL or 18th birthday, whichever is earlier
FCA 302.2 - STATUTE OF LIMITATIONS
Designated felony or is an act allegedly committed when the respondent was aged sixteen (16) years or older
CPL 30.10 SOL or 20th birthday, whichever is earlier
FCA 302.2 - STATUTE OF LIMITATIONS
When a proceeding had been commenced in the youth part of a superior court for an act alleged to have been committed prior to his or her eighteenth (18) birthday and then had been removed to family court, a proceeding commenced for an act allegedly committed when the respondent was aged sixteen (16) years or older
CPL 30.10 SOL or 20th birthday, whichever is earlier
FCA 302.3 VENUE
JD proceedings SHALL be originated in the county in which the ACT or ACTS referred to in the petition ___________
OCCURRED.
FCA 302.3 VENUE
Upon motion of the respondent or the appropriate presentment agency the family court in which the proceedings have been originated (MUST/MAY) order, for good cause shown, that the proceeding be transferred to another county.
MAY
FCA 302.3 VENUE
Any motion for removal of the proceeding to another county made by the respondent must be made within ____________
thirty (30) days of the initial appearance.
FCA 302.3 VENUE
Any motion for removal of the proceeding to another county by the presentment agency must be made within _______________
Thirty (30) days of the origination of the action
FCA 302.3 VENUE
Unless the case involves a DESIGNATED FELONY, after a fact-finding, the dispositional hearing (NUST/MAY) be transferred to the respondent’s ____________.
MAY… county of residence
FCA 303.1- CRIMINAL PROCEDURE LAW
The criminal procedure law (DOES/DOES NOT) apply to JD proceedings UNLESS the FCA specifically states that it (DOES/DOES NOT)apply.
DOES NOT…. DOES
However, the court may consider judicial interpretations (case law) of appropriate provisions of the criminal procedure law, to the extent that it may assist the court in interpreting similar provisions of the FCA.
This is different than the rule for the CPLR, which applies automatically, unless the FCA has set out a specific procedure.
FCA 303.2 – DOUBLE JEOPARDY
The Provisions of CPL 40 state that a person may not be twice prosecuted for the same offense. This is the extent to what you should be familiar with. THIS APPLIES TO FCA ARTICLE 3
The Provisions of CPL 40 state that a person may not be twice prosecuted for the same offense. This is the extent to what you should be familiar with. THIS APPLIES TO FCA ARTICLE 3
FCA 303.3 – AFFIRMATIVE DEFENSES (ARTS. 25, 35, 40, & 30.05 of PL)
List the JD affirmative defenses:
Duress - Undue influence, threats, violence committed against them to do something against their will
Justification - Legal right to use force to protect yourself or another person
REnunciation - To decide that you do not want to be part of a criminal enterprise anymore and you completely withdraw from it. You have to make an effort to prevent the event from occurring. (e.g. going to the police and reporting an act that will happen to prevent it
Mental defect - Lacked the capacity to understand the nature and consequences of their conduct or conduct was wrong
FCA 304.1 - DETENTION (KNOW THIS)
Detention facilities MUST BE APPROVED BY _________
OCFS- Office of Children and Family Services.
No child shall be detained in any prison, jail, lockup, or other place used for adults convicted of crime or under arrest and charged with crime without the approval of the office of children and family services
FCA 304.1 - DETENTION (KNOW THIS)
(NEW) The detention of a child under ____________ in a secure detention facility SHALL NOT be directed, unless such child is at least ____________ and is considered a juvenile delinquent
THIRTEEN (13) YEARS OF AGE……… TEN (10) YEARS OLD
(This new statute implies, as the old statute stated explicitly, that there shall be no secure detention of a child under TEN (10) YEARS OF AGE)
FCA 304.1 - DETENTION (KNOW THIS)
The detention of a child adjudicated solely for an act that would constitute a ________ SHALL NOT be directed
violation
FCA 304.1 - DETENTION (KNOW THIS)
a detention facility receiving a child __________ notify the parent of the child’s location.
A. Must Without unnecessary delay
B. Must Within a reasonable time
C. Must immediately
D. With all due speed
C. Must immediately
FCA 304.2- Upon application of the presentment agency the court may issue a temporary order of protection against a respondent:
- Ex parte or upon notice
- Any time the juvenile is taken into custody
- Upon the issuance of an appearance ticket
- Upon the filing of a petition
Such order of protection (IS/IS NOT) a finding of wrongdoing and may remain in effect until an order of disposition is entered
IS NOT
FCA 305.1 - CUSTODY BY A PRIVATE PERSON
A private person can take a child WHO MAY BE THE SUBJECT OF AN ART 3 PROCEEDING for committing an act that would be a crime if committed by an adult into custody.
A private person can take a child WHO MAY BE THE SUBJECT OF AN ART 3 PROCEEDING for committing an act that would be a crime if committed by an adult into custody.
FCA 305.1 - CUSTODY BY A PRIVATE PERSON
Before taking such a child under the AGE OF _______________ Into custody, a private person must inform the child of the cause thereof and require him to submit, except when he is taken into custody on pursuit immediately after the commission of a crime.
SIXTEEN (16)
FCA 305.1 - CUSTODY BY A PRIVATE PERSON
This private person must WITHOUT UNNECESSARILY DELAY (immediately) take the child to:
- the child’s home, OR
- a police or peace officer, or
- family court.
FCA 305.1 - CUSTODY BY A PRIVATE PERSON
This private person must WITHOUT UNNECESSARILY DELAY (immediately) take the child to:
- the child’s home, OR
- a police or peace officer, or
- family court.
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
If a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant, he must IMMEDIATELY notify:
A. The parent or person responsible for the child’s care
B. The Court
C. The local probation service
D. The appropriate presentment agency
A. The parent or person responsible for the child’s care
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
Give the child an appearance ticket and return him to ___________ ,
his parents
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
Take him with all reasonable speed (IMMEDIATELY)TO FAMILY COURT located where in the county in which the act was committed.
The officer SHALL NOT take the child to the police station first
If the family court is not in session, take him to the most accessible MAGISTRATE, if any, DESIGNATED BY THE APPELLATE DIVISION OF THE SUPREME COURT, UNLESS THE OFFICER DETERMINES THAT IT IS NECESSARY TO QUESTION THE CHILD FIRST. In which case, the officer shall take the child to a facility designated by the CHIEF ADMINISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR QUESTIONING CHILDREN.
Upon the consent of the parent or PLR – the officer may take the child to the child’s residence for questioning for a REASONABLE PERIOD OF TIME.
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
Take him with all reasonable speed (IMMEDIATELY)TO FAMILY COURT located where in the county in which the act was committed.
The officer SHALL NOT take the child to the police station first
If the family court is not in session, take him to the most accessible MAGISTRATE, if any, DESIGNATED BY THE APPELLATE DIVISION OF THE SUPREME COURT, UNLESS THE OFFICER DETERMINES THAT IT IS NECESSARY TO QUESTION THE CHILD FIRST. In which case, the officer shall take the child to a facility designated by the CHIEF ADMINISTRATOR OF THE COURTS AS A SUITABLE PLACE FOR QUESTIONING CHILDREN.
Upon the consent of the parent or PLR – the officer may take the child to the child’s residence for questioning for a REASONABLE PERIOD OF TIME.
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
C. Take the child to a facility certified by the division of youth as a _______________
JUVENILE DETENTION FACILITY
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
If taken into custody for prostitution offenses, take the child to an available ___________
short term safe-house
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
If it appears the child is a sexually exploited child, take the child to an available short-term safe house, but only if the ________ consents to such action.
child
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
On __________ , the child must be taken to family court or to a facility designated by the division for questioning.
designated felony
(Basically, if the family court is open, the child will be taken to the court. If it’s not open, the child will be brought to a facility designated by the division for questioning)
All questioning (interrogation), including giving notice of rights, shall be recorded on video
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
One of the options after a police officer takes a child SUBJECT TO AN ARTICLE 3 JD PROCEEDING into custody without a warrant is:
In all other cases besides the ones specfically listed in the statute, the youth must be released with _____________
an appearance ticket
FCA 305.2 - CUSTODY WITHOUT A WARRANT BY POLICE OR PEACE OFFICER
Child (CAN’/CANNOT) be questioned without being read his Miranda rights
CANNOT
FCA 306.1 FINGERPRINTING
Arresting officer MUST take prints if:
Child is TWELVE OR OLDER - CHARGED WITH ______________
Child is THIRTEEN OR OLDER - CHARGED WITH _____________
A OR B FELONY …….. C, D OR E FELONY
FCA 306.1 FINGERPRINTING
Whenever fingerprints are taken, palm prints and photos (MAY/SHALL) be taken
MAY
FCA 306.1 FINGERPRINTING
Upon the taking of fingerprints The appropriate officer or agency shall, without unnecessary delay, forward such fingerprints to ____________ and (SHALL/SHALL NOT) retain such fingerprints or any copy thereof.
the division of criminal justice services ….. SHALL NOT
FCA 306.1 FINGERPRINTING
Copies of ___________ taken pursuant to this section shall be kept confidential and only in the exclusive possession of such law enforcement agency, separate and apart from files of adults.
photographs and palmprints
FCA 306.2. FINGERPRINTING – DUTIES OF DCJS*
Fingerprints Must be forwarded immediately to DCJS who will search its records for information concerning an adjudication or pending matter involving the person arrested. DCJS will promptly transmit its report and findings regarding the arrested person to the forwarding officer or agency.
UPON receipt of a report from DCJS, the recipient officer shall send __________ to the family court in which the proceeding is pending and __________ to the presentment agency (family court’s version of the DA).
The Presentment agency shall then provide a copy to counsel for the __________
TWO (2) COPIES ………. TWO (2) COPIES……… respondent.
FCA 307.1 APPEARANCE TICKET.*
An appearance ticket is a written notice given to a respondent, after his/her arrest, to appear at a designated probation service in connection with the child’s alleged commission of a crime.
An appearance ticket is a written notice given to a respondent, after his/her arrest, to appear at a designated probation service in connection with the child’s alleged commission of a crime.
FCA 307.1 APPEARANCE TICKET.*
If the respondent is alleged to have committed a designated felony act, the return date of the appearance ticket must be no more than ___________ after the issuance of the appearance ticket, excluding ________ . In all other situations the return date must be within____________ after issuance.
SEVENTY-TWO (72) HOURS……. Saturdays, Sundays and public holidays………. FOURTEEN (14) DAYS
FCA 307.1 APPEARANCE TICKET.*
A copy of the family court appearance ticket shall be forwarded by the issuing person or agency to the complainant, respondent, respondent’s parent/PLR, and appropriate probation service within ___________ after its issuance.
TWENTY-FOUR (24) HOURS
FCA 307.1 APPEARANCE TICKET.*
The appearance ticket procedures take place (BEFORE/AFTER) the filing of a petition.
before
FCA 307.1 APPEARANCE TICKET.*
The probation service may “adjust” (settle the matter) certain cases without the approval of the court (no petition has been filed at this point. The court is not involved.) (Sec. 308.1(3) & (4)). These procedures do not take place for every arrest; a respondent may be detained initially under Sec. 307.3(4), brought directly to court under Sec. 305.2, or a petition may be filed under Sec. 311.1
The probation service may “adjust” (settle the matter) certain cases without the approval of the court (no petition has been filed at this point. The court is not involved.) (Sec. 308.1(3) & (4)). These procedures do not take place for every arrest; a respondent may be detained initially under Sec. 307.3(4), brought directly to court under Sec. 305.2, or a petition may be filed under Sec. 311.1
FCA 307.1 APPEARANCE TICKET.*
__________________ CASES ARE NOT ADJUSTABLE. They are brought right to court.)
DESIGNATED FELONY
FCA 307.2 - FAILURE TO APPEAR
If the child (alleged perp) or _______ fails to appear on the return date, the probation service may REFER the matter to the Presentment Agency OR may attempt to secure the attendance of the child or _____________(phone call, letter to parent).
[or complainant] ………. [or complainant]
FCA 307.2 - FAILURE TO APPEAR
If the probation service has not secured the child’s attendance within ___________ the case MUST be referred to the Presentment Agency.
SEVEN (7) DAYS
FCA 307.3 PRE-PETITION DETENTION
If a child is brought to a detention facility BEFORE a petition has been filed, the following procedures apply:
(1) Detention Facility (MUST/MAY) release the child if:
(a) the events occasioning the taking into custody do not appear to involve allegations that the child committed a delinquent act.
(2) If the child has not been released under sub. (1) above, and it appears the child did commit a delinquent act, then the Detention Facility MAY release the child WHEN __________
(3) When practicable, in all other situations, if the child is so released, an ____________ must be issued.
(3) If the child is NOT RELEASED, he/she (MUST/MAY) be brought before the Family Court and if the Family Court is not in session, the youth shall be brought to the most accessible magistrate, if any, designated by the appellate division of the supreme court in the applicable department.
However, if a magistrate is not available, such youth shall be brought before such family court within __________ hours or _____________ , whichever is SOONER.
MUST….PRACTICABLE………. APPEARANCE TICKET………. MUST……… SEVENTY-TWO (72)……….. the next day court is in session
307.4- PRE-PETITION HEARING*
If a child in custody is brought to the family court before a petition is filed, the judge shall hold a hearing to determine if the court has _____________
jurisdiction over such child
307.4- PRE-PETITION HEARING*
At such hearing an “attorney for the child” (MUIST/MAY) be appointed if no other counsel has appeared
MUST
307.4- PRE-PETITION HEARING*
After the hearing the judge shall order the release of the child to parents or guardian if:
- The court does not appear to have jurisdiction
- The child does not appear to have committed a delinquent act
3.The acts committed do constitute juvenile delinquency but the court does not find or state the facts, which would support detention
307.4- PRE-PETITION HEARING*
After the hearing the judge shall order the release of the child to parents or guardian if:
- The court does not appear to have jurisdiction
- The child does not appear to have committed a delinquent act
3.The acts committed do constitute juvenile delinquency but the court does not find or state the facts, which would support detention
307.4- PRE-PETITION HEARING*
Such hearing will be held within __________ of the time the detention began or the next day the court is in session whichever is sooner
SEVENTY-TWO (72) HOURS
307.4- PRE-PETITION HEARING*
Within ______________ of the conclusion of this “hearing following detention”,a petition shall be filed and a probable cause hearing may be held if the respondent denies the charges (FCA 325.1). If the petition is not filed within the __________ the child shall be released … (This is similar to CPL 170.70 Or 180.80)
FOUR (4) DAYS ………… FOUR (4) DAYS
307.4- PRE-PETITION HEARING*
Upon a finding of facts and reasons to support detention the court shall also determine and state in any order directing detention:
- Whether continuation of the child in the child’s home would be contrary to the best interests of the child
- With the need for protection of the community, whether reasonable efforts were made prior to the date of the court hearing to prevent or eliminate the need of the removal of the child from his or her home
307.4- PRE-PETITION HEARING*
Upon a finding of facts and reasons to support detention the court shall also determine and state in any order directing detention:
- Whether continuation of the child in the child’s home would be contrary to the best interests of the child
- With the need for protection of the community, whether reasonable efforts were made prior to the date of the court hearing to prevent or eliminate the need of the removal of the child from his or her home
FCA 308.1 Adjustment of cases*
The purpose of having the child appear before a probation officer is to see if the case can be “adjusted” and avoid a delinquency proceeding.
The purpose of having the child appear before a probation officer is to see if the case can be “adjusted” and avoid a delinquency proceeding.
FCA 308.1 Adjustment of cases*
DESIGNATED FELONIES shall not be adjusted without written approval from the Court
A. The Presentment agency
B. The Respondent
C. The Court
D. The local Probation service
C. The Court
FCA 308.1 Adjustment of cases*
The following offenses shall not be adjusted where the child has previously had one or more adjustments of a case in which such child allegedly committed an act which would be a crime specified in this subdivision unless it has received written approval from the court and the appropriate presentment agency:
reckless endangerment 1
sexual abuse 1
coercion 1
criminal possession of a dangerous weapon 1
manslaughter 2
criminal possession of a weapon 2 & 3
rape 3
arson 3
criminal sexual act 3
burglary 3
robbery 3
The following offenses shall not be adjusted where the child has previously had one or more adjustments of a case in which such child allegedly committed an act which would be a crime specified in this subdivision unless it has received written approval from the court and the appropriate presentment agency:
reckless endangerment 1
sexual abuse 1
coercion 1
criminal possession of a dangerous weapon 1
manslaughter 2
criminal possession of a weapon 2 & 3
rape 3
arson 3
criminal sexual act 3
burglary 3
robbery 3
FCA 308.1 Adjustment of cases*
Efforts at adjustment pursuant to rules of court under this section may not extend for a period of more than ___________ without leave of the court which may extend the period for an additional ____________
THREE (3) MONTHS …………. TWO (2) MONTHS
FCA 308.1 Adjustment of cases*
If the case is not adjusted by the probation service, they must notify the Presentment Agency WITHIN _____________ , or ______________ , whichever occurs SOONER.
FORTY-EIGHT (48) HOURS…..t he next court day
FCA 308.1 Adjustment of cases*
The probation service shall consider the views of the ___________ and the impact of the alleged act or acts of juvenile delinquency upon the complainant and upon the community in determining whether adjustment under this section would be suitable.
complainant
FCA 308.1 Adjustment of cases*
If the respondent is found to have not committed an act which would constitute a juvenile offense, designated felony, or any of the [above] acts, then it may be referred to probation for adjustment
If the respondent is found to have not committed an act which would constitute a juvenile offense, designated felony, or any of the [above] acts, then it may be referred to probation for adjustment
FCA 308.1 Adjustment of cases*
If a __________ OR ___________ YEAR OLD RESPONDENT is found to have only committed a violation, it (MAY/SHALL) be referred to probation for adjustment unless good cause shown
SIXTEEN (16)………… SEVENTEEN (17)….. MAY
FCA 309.1. Community based treatment referrals. (New)
A youth who is released prior to the filing of a petition shall be made aware of and referred to community based organizations offering various voluntary services
Only Information ___________ shared by the youth regarding use of such services may be used in the proceedings
VOLUNTARILY
FCA 310.1 PRESENTMENT AGENCY
Only the ____________ may originate a JD proceeding
presentment agency (Remember Article 216C DOES NOT APPLY TO JDS.)
FCA 310.1 PRESENTMENT AGENCY
If the appropriate agency does not originate a proceeding within __________ of receipt of notice from the probation service that a case was not adjusted, it shall notify in writing the _____________ of that fact.
THIRTY (30) DAYS …….. COMPLAINANT
FCA 310.2 SPEEDY TRIAL
After petition filed or on signing of order of removal pursuant to CPL 725, the respondent is entitled to __________
speedy trial (fact finding hearing).
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
1. Petition is WRITTEN ACCUSATION by AUTHORIZED PRESENTMENT AGENCY
2. Petition MUST CHARGE AT LEAST ONE (1) CRIME
3. Must contain:
a. name of family court
b. title of action
c. fact that respondent is a person of the necessary age to be a juvenile delinquent.
d. separate accusation or count as to each crime charged
e. specific (precise) crimes charged
f. that crime charged was committed in designated county
g. that each crime was committed on a designated (specific) date at a designated (specific) time
h. plain or concise factual statement in each count supporting crime charged
i. Name or names of co-respondents charged
j. statement that respondent requires supervision, treatment or confinement.
k. signature of appropriate presentment attorney
- Petition must be verified (sworn to)
- If charging a Designated Felony Act - petition must so state, and it must be marked DESIGNATED FELONY ACT PETITION in prominent place.
Designated Felony Act Petition title is stricken if all allegations are dismissed, withdrawn, or acts are not found to be designated felonies after a hearing. - Form of petition is prescribed by Chief Administrator of Courts
A petition shall be entitled “In the Matter of”, followed by the name of the respondent.
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
1. Petition is WRITTEN ACCUSATION by AUTHORIZED PRESENTMENT AGENCY
2. Petition MUST CHARGE AT LEAST ONE (1) CRIME
3. Must contain:
a. name of family court
b. title of action
c. fact that respondent is a person of the necessary age to be a juvenile delinquent.
d. separate accusation or count as to each crime charged
e. specific (precise) crimes charged
f. that crime charged was committed in designated county
g. that each crime was committed on a designated (specific) date at a designated (specific) time
h. plain or concise factual statement in each count supporting crime charged
i. Name or names of co-respondents charged
j. statement that respondent requires supervision, treatment or confinement.
k. signature of appropriate presentment attorney
- Petition must be verified (sworn to)
- If charging a Designated Felony Act - petition must so state, and it must be marked DESIGNATED FELONY ACT PETITION in prominent place.
Designated Felony Act Petition title is stricken if all allegations are dismissed, withdrawn, or acts are not found to be designated felonies after a hearing. - Form of petition is prescribed by Chief Administrator of Courts
A petition shall be entitled “In the Matter of”, followed by the name of the respondent.
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
- Petition is WRITTEN ACCUSATION by AUTHORIZED _______________
A. Local Probation Service
B. Complainant
C. Presentment Agency
D. Police Department
PRESENTMENT AGENCY
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
- Petition MUST CHARGE AT LEAST ONE (1) _______
CRIME
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
Petitions must contain the signature of ____________
A. Complainant
B. Assigned Judge
C. Local Probation Service
D. Appropriate presentment agency
D. Appropriate presentment agency
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
Petition (MUST/MAY) be verified (sworn to).
MUST
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
If charging a Designated Felony Act - petition must so state, and it must be marked ______________ in prominent place.
Designated Felony Act Petition title is stricken if all allegations are dismissed, withdrawn, or acts are not found to be designated felonies after a hearing.
DESIGNATED FELONY ACT PETITION
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
Form of petition is prescribed by ______________
A petition shall be entitled “_____________
A. The People of the State of ….
B. The People of the County of….
C. “In the matter of” followed by the name of the respondent.
D. “In the matter of” followed by the name of the complainant.
Chief Administrator of Courts……….. “In the matter of” followed by the name of the respondent.
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
Order of removal (from criminal court), when filed with the Clerk of Court, IS DEEMED ____________
When an order of removal pursuant CPL 725 is filed with the clerk of the court, such order and those pleadings and proceedings, other than the minutes of any hearing inquiry or trial, grand jury proceeding, or of any plea accepted or entered, held in this action that has not yet been transcribed shall be transferred with it and shall be deemed to be a petition containing all of the allegations required by this section, even if not in the manner described above.
Where the order or the grand jury request annexed to the order specifies an act that is a designated felony act, the clerk shall annex to the order a sufficient statement and marking to make it a designated felony act petition.
The date such an order is filed with the clerk of the court shall be deemed the date a petition was filed
For purposes of service only the order of removal shall be deemed the petition (may be only for Designated Felony acts?).
THE PETITION.
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
When an order of removal pursuant CPL 725 is filed with the clerk of the court:
The date such an order is filed with the clerk of the court shall be deemed the date _________
a petition was filed
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
When an order of removal pursuant CPL 725 is filed with the clerk of the court:
For purposes of service only the ___________ shall be deemed the petition
order of removal
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
When an order of removal pursuant CPL 725 is filed with the clerk of the court:
All minutes of any hearing inquiry or trial held in this action, the minutes of any grand jury proceeding and the minutes of any plea accepted and entered shall be transferred to the family court within _________________
THIRTY (30) DAYS.
FCA 311.1 PETITIONS – DEFINITIONS AND CONTENTS
When an order of removal pursuant CPL 725 is filed with the clerk of the court:
If a petition is not sufficient, it is subject to dismissal by the court unless it can be properly amended under Sec. 311.5. T/F?
TRUE
FCA PART 311.3 - PETITION; FACT FINDING HEARING
The court shall conduct a single or consolidated hearing when ____________ respondents are charged in separate petitions with the same crime, however a motion for separate hearing may be granted for good cause shown
TWO (2) OR MORE
FCA 311.2. SUFFICIENCY OF PETITION.
A petition, or a count thereof, is sufficient on its face when:
it substantially conforms to the requirements prescribed; and
the allegations of the factual part of the petition, together with those of any supporting depositions provide reasonable cause to believe that the respondent committed the crime or crimes charged; and
non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent’s commission thereof.
FCA 311.2. SUFFICIENCY OF PETITION.
A petition, or a count thereof, is sufficient on its face when:
it substantially conforms to the requirements prescribed; and
the allegations of the factual part of the petition, together with those of any supporting depositions provide reasonable cause to believe that the respondent committed the crime or crimes charged; and
non-hearsay allegations of the factual part of the petition or of any supporting depositions establish, if true, every element of each crime charged and the respondent’s commission thereof.
FCA 311.3. PETITION; FACT-FINDING HEARINGS.
When ____________ respondents are charged in separate petitions with the same crime or crimes the court shall conduct a single or consolidated fact-finding hearing.
Upon motion and good cause shown, they (MAY/SHALL) be held separate
If such petitions, in addition to charging the same crime or crimes against the different respondents, charge other crimes not common to all, the court may still conduct a single fact-finding hearing for the crime or crimes common to all.
TWO (2) OR MORE…….. MAY
FCA PART 311.4 - SUBSTITUTION OF PETITION OR FINDING*
At any time the court on its own motion or upon motion of the ____________ with the consent of the presentment agency may order the substitution of a petition for a _______________ for a JD petition
At the conclusion of the dispositional hearing, the court on its own motion or upon motion of the ____________ may substitute a finding that the person is a_______________ for a finding that the person is a JD
There is new law regarding an arrest for prostitution where the victim meets the criteria for trafficking. Here upon a motion by the respondent (WITH/WITHOUT) the consent of the presentment agency, a petition for a person in need of supervision shall be substituted for a delinquency petition
Respondent…… “person in need of supervision” FCA Article 7……… respondent …… “person in need of supervision” FCA Article 7…. WITHOUT
FCA PART 311.5. AMENDMENT OF THE PETITION.-
Any time before or during the fact finding hearing, the court upon application of the presentment agency with notice to the respondent and opportunity to be heard can amend the petition as to certain defects and errors as long as it does not prejudice the respondent on the merits.
Such errors may include matters (and similar matters) of:
F
T
P
N
An adjournment request by the respondent (MUST/MAY) be granted.
form
time
place
names of persons
MUST
FCA PART 311.5. AMENDMENT OF THE PETITION.-
A petition may not be amended for:
F
L
M
Failure to charge or state a crime
Legal insufficiency of the factual allegations
Misjoinder of crimes
FCA PART 311.6 - JOINDER, SEVERANCE AND CONSOLIDATION*
_________ acts are joinable and can be included in separate counts in same petition when:
(a) Based on same act or criminal transaction
(b) Different transactions, but proof in one is material to proving the other at fact Finding hearing,
(c) Defined by same statutes and are same or similar in law
TWO (2)
FCA PART 311.6 - JOINDER, SEVERANCE AND CONSOLIDATION*
When _________ or more petitions against the same respondent charge different crimes of a kind that are joinable in a single petition the court may, upon application of either the presentment agency or respondent order that such petitions be consolidated and treated as a single petition for trial purposes.
If the respondent requests consolidation with respect to crimes which are of a kind that are joinable in a single petition by reason of being based upon the same act or criminal transaction, the court must order such consolidation unless good cause to the contrary be shown.
TWO (2)
FCA PART 311.6 - JOINDER, SEVERANCE AND CONSOLIDATION*
In any case where _________ or more crimes or groups of crimes charged in a petition are based upon different criminal transactions, and where their joinability rests solely upon the fact that such crimes, or as the case may be at least one offense of each group, are the same or similar in law, the court, in the interest of justice and for good cause shown, may upon application of either the respondent or the presentment agency order that any one of such crimes or groups of crimes be tried separately from the other or others, or that ____________ or more thereof be tried together but separately from _________ or more others thereof.
TWO (2) ……….. TWO (2) …….. TWO (2)
BARD EXPLANATION: It states that if a person is charged with two or more crimes that are based on different criminal transactions, and if the only reason that the crimes can be tried together is because they are the same or similar in law, then the court can order that the crimes be tried separately. This can be done at the request of either the respondent or the presentment agency}
FCA PART 312.1 Issuance and service of summons*
After a petition is filed, a summons along with a copy of the petition may be issued directing the appearance of the respondent and parent/guardian /PLR for the Initial Appearance, at the time and place indicated in the summons.
The _________ OR _________ signs such summons
judge or the clerk of the court
FCA PART 312.1 Issuance and service of summons*
Service of the summons and petition shall be made by delivery to the person summoned at least____________ before the time stated for appearance. If personal service cannot be made the court may make an order for service in any manner
TWENTY-FOUR (24) HOURS
FCA 312.2 Issuance of a warrant -
The court may issue a warrant for the respondent OR a person legally responsible for his care, after a petition has been filed when:
(1) a summons cannot be served; or
(2) such person has refused to obey a summons or family court appearance ticket; or
(3) the respondent or other person is likely to leave the jurisdiction; or
(4) a summons, in the court’s opinion, would be ineffectual; or
(5) a respondent has failed to appear.
FCA 312.2 Issuance of a warrant -
The court may issue a warrant for the respondent OR a person legally responsible for his care, after a petition has been filed when:
(1) a summons cannot be served; or
(2) such person has refused to obey a summons or family court appearance ticket; or
(3) the respondent or other person is likely to leave the jurisdiction; or
(4) a summons, in the court’s opinion, would be ineffectual; or
(5) a respondent has failed to appear.
FCA 312.2 Issuance of a warrant -
Warrant reports - if the court issues a warrant based on the respondent’s failure to appear, the court MUST adjourn the case to a date certain within ________ for a report on the efforts to secure the respondent in court.
EFFORTS (MUST/MAY) BE MADE TO HAVE THE WARRANT EXECUTED DURING THOSE ______________
The court must issue WRITTEN findings of fact as to the efforts to secure the respondents appearance.
IF THERE ARE NO EFFORTS TO SECURE THE RESPONDENT, THAT (CAN/CANNOT) AFFECT THE PRESENTMENT AGENCY’S CASE
THIRTY (30) DAYS……… MUST…..THIRTY (30) DAYS…. CAN
FCA 312.2 Issuance of a warrant -
A juvenile who is arrested pursuant to a warrant issued under this section must forthwith and with all reasonable speed be taken directly to the _________ located in the county in which the warrant had been issued, or, when __________ Is not in session, to the most accessible magistrate, if any, designated by the appellate division of the supreme court in the applicable department.
If a juvenile is brought before an accessible magistrate, the magistrate shall set a date for the juvenile to appear in the family court in the county in which the warrant had been issued, which shall be no later than __________ if the magistrate orders the juvenile to be DETAINED and within ________ if the magistrate orders the juvenile to be released.
In determining whether the juvenile should be released, with or without conditions, or detained, the magistrate shall issue the findings.
The magistrate shall transmit its order to the family court forthwith.
family court …the family court ….. the NEXT DAY the court is in session ………. TEN (10) COURT DAYS
FCA PART 315.1 Motion to dismiss; defective petition-*
A motion to dismiss the petition as defective may be made by the respondent or the court itself on the grounds of:
It does not conform to the requirements of the statute.
The allegations demonstrate the court does not have jurisdiction
The statute defining the crime is unconstitutional or invalid
FCA PART 315.1 Motion to dismiss; defective petition-*
A motion to dismiss the petition as defective may be made by the respondent or the court itself on the grounds of:
It does not conform to the requirements of the statute.
The allegations demonstrate the court does not have jurisdiction
The statute defining the crime is unconstitutional or invalid
FCA PART 315.2 Motion to dismiss in furtherance of justice-*
A motion to dismiss the petition in the furtherance of justice may be issued upon the motion of the presentment agency,the respondent or the court itself on a variety of different grounds. It must be in writing and filed any time after the filing of the petition. Notice of motion must be served on the opposing party not less than ___________ prior to the motion being heard, with answering affidavits filed within ___________ prior to the return date
EIGHT (8) DAYS……….. TWO (2) DAYS
8-2 Days - Same as a motion in the CPLR
FCA PART 315.3- Adjournment in contemplation of dismissal
Except for __________ s,at any time prior to the conclusion of the fact finding hearing the court may with the consent of the respondent order that the proceeding be “adjourned in contemplation of dismissal” for a period not to exceed ____________
Such adjournment may specify conditions like the completion of an alcohol awareness program
designated felony act…….. SIX (6) MONTHS
FCA PART 315.3- Adjournment in contemplation of dismissal
An order adjourning a petition in contemplation of dismissal may be issued upon motion of the Presentment agency, the Court itself,or the Respondent.
Upon issuing such order the reasons must be set forth on the record
Upon issuing such an order, the court (MUST/MAY) release the respondent
MUST
FCA PART 315.3- Adjournment in contemplation of dismissal
Upon motion by the presentment agency,or the court upon its own motion, the matter may be restored to the calendar. If after __________ , it is not restored to the calendar, the petition is deemed to be dismissed in the furtherance of justice
SIX (6) MONTHS
FCA PART 315.3- Adjournment in contemplation of dismissal
(NEW) Where an order of fact-finding that includes solely a __________ committed by a juvenile ____________ OR ____________ there shall be a rebuttable presumption (i.e. this is going to happened unless there is a good argument not to) that the court shall adjourn the case in contemplation of dismissal, refer the case to the probation service for adjustment or dismiss the case.
Violation ……….. SIXTEEN (16) YEARS OF AGE OR SEVENTEEN (17) YEARS OF AGE,
320.1* The initial appearance; definition*
The initial appearance is when the respondent first appears before the court after a petition has been filed and is similar to an __________ in the criminal court
arraignment
320.2 The initial appearance; timing; adjournment and appointment of counsel*
If the respondent is detained the initial appearance shall be held no later than __________ after the petition is filed or the next day the court is in session whichever is sooner
If the respondent is not detained,the initial appearance shall be held as soon as practicable and within _________ of the petition being filed
The ____________ shall notify all counsel of the initial appearance date
SEVENTY TWO (72) HOURS……… TEN (10) DAYS ……… clerk of the court
320.2 The initial appearance; timing; adjournment and appointment of counsel*
At the initial appearance the court (MUST/MAY) appoint a “attorney for the child” if no other attorney has appeared
MUST
320.2 The initial appearance; timing; adjournment and appointment of counsel*
The initial appearance may be adjourned for no longer than __________ or until the next court day whichever is sooner for counsel to appear
SEVENTY-TWO (72) HOURS
320.2 The initial appearance; timing; adjournment and appointment of counsel*
The respondent (MUST/MAY) enter an admission or denial and if he refuses the court must enter a denial on his behalf (Sec. 321.1).
MUST
320.3* Notice of Rights*-
The court (MUST/MAY) inform the respondent of certain rights including the right to “remain silent” and the “right to counsel”
MUST
320.4 The initial appearance; procedures*-
At the initial appearance the court must inform the respondent of the charges contained in the petition and the presentment agency must provide a copy of the petition to him or his counsel.
At the initial appearance it will be determined:
1. Whether detention is necessary
2. Whether the case should be referred to the probation service for possible adjustment
3.If the child is detained, the adjourn date for the probable cause hearing if it has not occurred yet
4. The date of the fact finding hearing and any such other issues
320.4 The initial appearance; procedures*-
At the initial appearance the court must inform the respondent of the charges contained in the petition and the presentment agency must provide a copy of the petition to him or his counsel.
At the initial appearance it will be determined:
1. Whether detention is necessary
2. Whether the case should be referred to the probation service for possible adjustment
3.If the child is detained, the adjourn date for the probable cause hearing if it has not occurred yet
4. The date of the fact finding hearing and any such other issues
320.5- The initial appearance; release or detention*
At the initial appearance the court may release the respondent or direct his detention
If released, there may be terms and conditions of release which is to be provided to the respondent
320.5- The initial appearance; release or detention*
At the initial appearance the court may release the respondent or direct his detention
If released, there may be terms and conditions of release which is to be provided to the respondent
320.5- The initial appearance; release or detention*
To direct detention of the respondent the court must find that:
alternatives to detention would not be appropriate,
there is a substantial probability the respondent will not appear in court on the return date or
that there is a serious risk that before the return date he may commit an act considered a crime if committed by an adult
The court shall use a “detention risk assessment instrument” prior to directing detention and must state the reasons for directing detention particularly when the youth was assessed as a “low” or “medium” risk.
Electronic monitoring and the use of a short term safe house are options for the court
320.5- The initial appearance; release or detention*
To direct detention of the respondent the court must find that:
alternatives to detention would not be appropriate,
there is a substantial probability the respondent will not appear in court on the return date or
that there is a serious risk that before the return date he may commit an act considered a crime if committed by an adult
The court shall use a “detention risk assessment instrument” prior to directing detention and must state the reasons for directing detention particularly when the youth was assessed as a “low” or “medium” risk.
Electronic monitoring and the use of a short term safe house are options for the court
320.5- The initial appearance; release or detention*
The presentment agency (MUST/MAY) introduce the prior delinquency findings of the respondent if any and if fingerprinted, then the records of such may also be introduced. At the conclusion of the proceeding the fingerprint records are returned to the presentment agency and not made part of the court record
MAY
320.5- The initial appearance; release or detention*
The court shall also state in any order directing detention
1. Whether continuation in the respondents home would not be in the best interests of the respondent
2. In consideration of the protection of the community whether efforts were made to prevent the removal of the respondent from his home
The court shall also state in any order directing detention
1. Whether continuation in the respondents home would not be in the best interests of the respondent
2. In consideration of the protection of the community whether efforts were made to prevent the removal of the respondent from his home
320.5- The initial appearance; release or detention*
(NEW) 320.6. The initial appearance; referral to the probation service.
At the initial appearance or at any subsequent appearance, the court may refer a case to the probation service for adjustment services
The probation service shall consider the views of the __________ and the impact of the alleged act or acts of juvenile delinquency upon the complainant and upon the community in determining whether adjustment under this section would be suitable.
complainant
320.5- The initial appearance; release or detention*
In the case of a ___________ , the consent of _____________ shall be required to refer a case to the probation service for adjustment services.
A. the presentment agency
B. the judge
c. the complainant
d. the respondent
designated felony petition……….. A. the presentment agency
320.5- The initial appearance; release or detention*
Where an order of fact-finding that includes solely a violation committed by a juvenile SIXTEEN (16) YEARS OF AGE OR SEVENTEEN (17) YEARS OF AGE, there shall be a rebuttable presumption that
the court shall refer the case to the probation service for adjustment services, or
dismiss the case, or
adjourn the case in contemplation of dismissal.
320.5- The initial appearance; release or detention*
Where an order of fact-finding that includes solely a violation committed by a juvenile SIXTEEN (16) YEARS OF AGE OR SEVENTEEN (17) YEARS OF AGE, there shall be a rebuttable presumption that
the court shall refer the case to the probation service for adjustment services, or
dismiss the case, or
adjourn the case in contemplation of dismissal.
321.1- Entry of an admission or a denial * -
The respondent (MUST/MAY) admit or deny each charge and upon remaining mute the court will enter a denial upon the respondent’s behalf
MUST
321.2- Admissions to part of a petition; admissions concerning other petitions*
The respondent may as a matter of right enter an admission to all charges, however with the consent of the court and the presentment agency may enter an admission to a lesser included offense. If it charges more than one crime then again with the consent of the court and consent of the presentment agency they may enter a plea to part of the petition, which constitutes a disposition to the ________
entire petition
321.3 Acceptance of an admission*-
Before accepting an admission the court shall advise the respondent of his rights to a fact finding hearing and must establish that:
1. He committed the acts, which he enters an admission of
2. He is waiving his right to a fact finding hearing
3. He is aware of the possible dispositions
321.3 Acceptance of an admission*- Before accepting an admission the court shall advise the respondent of his rights to a fact finding hearing and must establish that:
1. He committed the acts, which he enters an admission of
2. He is waiving his right to a fact finding hearing
3. He is aware of the possible dispositions
321.4 Withdrawal of an admission or denial*
A respondent who has entered a denial may at any time withdraw the denial at any time before the conclusion of the __________ and enter an admission to the entire petition
At any time before a __________ , the court may permit the respondent to withdraw his admission restoring the case to its original status needing a fact finding hearing
fact finding hearing……….. dispositional finding
322.1 Incapacitated person; examination reports
If the court is of the opinion that the respondent may be an incapacitated person, then the court must issue an order that he be examined.
(NEW) Such exam may be conducted on an outpatient basis if the respondent is NOT in custody. If the respondent is in custody at the time the court issues an order of examination, the examination may be conducted at the place where the respondent is being held in custody so long as no reasonable alternative outpatient setting is available.
322.1 Incapacitated person; examination reports
If the court is of the opinion that the respondent may be an incapacitated person, then the court must issue an order that he be examined.
(NEW) Such exam may be conducted on an outpatient basis if the respondent is NOT in custody. If the respondent is in custody at the time the court issues an order of examination, the examination may be conducted at the place where the respondent is being held in custody so long as no reasonable alternative outpatient setting is available.
322.1 Incapacitated person; examination reports
________ qualified psychiatric examiners shall be ordered for this purpose to determine if he or she may be diagnosed as a person with mental illness or an intellectual or developmental disability.
TWO (2)
322.1 Incapacitated person; examination reports
Proceedings will be adjourned until the examination report has been filed with the court, which shall occur within ________ of the entry of the order.
Upon a showing of special circumstances and a finding that a longer period is necessary to complete the examination and report, the court may extend the time for filing the examination report.
TEN (10) DAYS
322.1 Incapacitated person; examination reports
{Each report shall state
the examiner’s opinion as to whether the respondent is or is not an incapacitated person,
the nature and extent of his examination and,
if he finds the respondent is an incapacitated person, his diagnosis and prognosis and a detailed statement of the reasons for his opinion by making particular reference to those aspects of the proceedings wherein the respondent lacks capacity to understand or to assist in his own defense.
322.1 Incapacitated person; examination reports
{Each report shall state
the examiner’s opinion as to whether the respondent is or is not an incapacitated person,
the nature and extent of his examination and,
if he finds the respondent is an incapacitated person, his diagnosis and prognosis and a detailed statement of the reasons for his opinion by making particular reference to those aspects of the proceedings wherein the respondent lacks capacity to understand or to assist in his own defense.
322.1 Incapacitated person; examination reports
__________ shall prescribe the form for the examination report.}
The chief administrator of the courts
§ 322.2. Proceedings to determine capacity.
- Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person.
The respondent, the counsel for the respondent, the presentment agency and the commissioner of mental health or the commissioner of developmental disabilities, as appropriate, shall be notified of such hearing at least ____________ prior to the hearing.
FIVE (5) DAYS
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
.If the court finds that the respondent is not an incapacitated person, it shall __________ the delinquency proceedings.
CONTINUE
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
If the respondent is found to be incapacitated, a hearing will be scheduled to determine if there is __________ the defendant committed a crime
A. Clear and convincing evidence
B. Reasonable belief
C. Probable cause
D. Preponderance of the evidence
C. Probable cause
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
If after hearing, probable cause is found that the respondent committed a misdemeanor, then they will be committed to the custody of the commissioner not to exceed ____________
(NEW) Unless the court specifies that such commitment shall be in a residential facility, such commissioner having custody may arrange for treatment in an appropriate facility or program, including an outpatient program
(KNOW THIS) The court shall dismiss the petition on the issuance of the order of commitment and such dismissal shall constitute a bar to further prosecution of the charge or charges contained in the petition.
NINETY (90) DAYS.
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
- (a) If the court finds that there is probable cause to believe that the respondent committed a felony, it shall order the respondent committed to the custody of the commissioner of mental health or the commissioner of the office for people with developmental disabilities for an initial period not to exceed _________ from the date of such order.
ONE (1) YEAR
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
If the court finds that there is probable cause to believe that the respondent committed a felony, it shall order the respondent committed to the custody of the commissioner of mental health or the commissioner of the office for people with developmental disabilities
If needed, such commitment may be extended annually, by application, not more than _________ prior to expiration on forms that have been prescribed by the chief administrator of the courts.
SIXTY (60) DAYS
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
If the court finds that there is probable cause to believe that the respondent committed a felony, it shall order the respondent committed to the custody of the commissioner of mental health or the commissioner of the office for people with developmental disabilities
If needed, such commitment may be extended annually.
At that time, the commissioner must give written notice of the application to the respondent, the counsel representing the respondent and the mental hygiene legal service if the respondent is at a residential facility.
Upon receipt of such application, the court must conduct a hearing to determine the issue of capacity.
If, at the conclusion of a hearing conducted pursuant to this subdivision, the court finds that the respondent is no longer incapacitated, he or she shall be returned to the family court for further proceedings pursuant to this article.
If the court is satisfied that the respondent continues to be incapacitated, the court shall authorize continued custody of the respondent by the commissioner in a facility or program for a period not to exceed _______
ONE (1) YEAR.
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
If the court finds that there is probable cause to believe that the respondent committed a felony, it shall order the respondent committed to the custody of the commissioner of mental health or the commissioner of the office for people with developmental disabilities
If needed, such commitment may be extended annually.
Such extensions shall not continue beyond a reasonable period of time necessary to determine whether the respondent will attain the capacity to proceed to a fact finding hearing in the foreseeable future but in no event shall continue beyond the respondent’s ___________ or, if the respondent was at least ____________ when the act was committed, beyond the respondent’s ___________
(b) If a respondent is in the custody of the commissioner upon their _________ BIRTHDAY, or if the respondent was at least __________ when the act resulting in their placement was committed, beyond the respondent’s ____________ the commissioner shall notify the clerk of the court that the respondent was in his custody on such date and the court shall dismiss the petition.
EIGHTEENTH (18) BIRTHDAY ………….. SIXTEEN (16) YEARS OF AGE ……….. TWENTY-FIRST (21) BIRTHDAY……
EIGHTEENTH (18) BIRTHDAY ………….. SIXTEEN (16) YEARS OF AGE ……….. TWENTY-FIRST (21) BIRTHDAY.
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
(c) If the court finds that there is probable cause to believe that the respondent has committed a designated felony act, the court shall require that treatment be provided in a residential facility within the appropriate office of the department of mental hygiene or in an outpatient facility if the commissioner having custody of the child petitions the court and such court approves.
(d) The commissioner shall review the condition of the respondent within __________ after the respondent is committed to the custody of the commissioner. He or she shall make a second review within ________ after the respondent is committed to his or her custody. Thereafter, he or she shall review the condition of the respondent every ____________ . The respondent and the counsel for the respondent, shall be notified of any such review and afforded an opportunity to be heard.
The commissioner having custody shall apply to the court for an order dismissing the petition whenever they determine that there is a substantial probability that the respondent will continue to be incapacitated for the foreseeable future. At the time of such application the commissioner must give written notice of the application to the respondent, the presentment agency and the mental hygiene legal service if the respondent is at a residential facility. Upon receipt of such application, the court may on its own motion conduct a hearing to determine whether there is substantial probability that the respondent will continue to be incapacitated for the foreseeable future, and it must conduct such hearing if demanded by the respondent or the mental hygiene legal service within __________ from the date that notice of the application was given to them.
The respondent may apply to the court for an order of dismissal on the same ground.
FORTY-FIVE (45) DAYS…. NINETY (90) DAYS…….. NINETY (90) DAYS……… TEN (10) DAYS
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
Any order pursuant to this section dismissing a petition shall not preclude an application for voluntary or involuntary care and treatment in a facility or program of the appropriate office of the department of mental hygiene.
Unless the respondent is admitted pursuant to such an application he or she shall be released.
§ 322.2. Proceedings to determine capacity.
Upon the receipt of examination reports, the court shall conduct a hearing to determine whether the respondent is an incapacitated person
Any order pursuant to this section dismissing a petition shall not preclude an application for voluntary or involuntary care and treatment in a facility or program of the appropriate office of the department of mental hygiene.
Unless the respondent is admitted pursuant to such an application he or she shall be released.
§ 322.2. Proceedings to determine capacity.
- If the commissioner having custody of a child committed to a residential facility due to probable cause to believe that the child committed a felony determines at any time that such child may be more appropriately treated in a non-residential facility or on an outpatient basis, he or she may arrange for such treatment.
If the commissioner having custody of a child committed to a residential facility due to probable cause to believe that the child has committed a designated felony act determines at any time that such child may be more appropriately treated in a non-residential facility or on an outpatient basis, he or she may petition the family court for a hearing.
If the court finds after a hearing that treatment in a non-residential facility or on an outpatient basis would be more appropriate for such child, the court shall modify its order of commitment to direct the commissioner to transfer the child to a non residential facility or arrange outpatient treatment.
Application for a hearing to determine whether any child committed to a residential facility under subdivisions four or five of this section may be more appropriately treated in a non-residential facility or on an outpatient basis may be made by the respondent.
8.If the commissioner however feels the respondent is not incapacitated, he shall petition the court for a hearing. The respondent and the presentment agency shall be notified of a scheduled hearing within ____________ If the court finds after hearing the respondent is no longer incapacitated, he shall be returned to the family court for further proceedings
TWENTY-FOUR (24) HOURS.
§ 322.2. Proceedings to determine capacity.
- Time spent by the respondent in the custody of a commissioner of an office within the department of mental hygiene or in a local hospital or detention facility pending transfer to the custody of the commissioner after a finding of incapacity, shall be credited and applied towards the period of placement specified in a dispositional order on the original petition.
§ 322.2. Proceedings to determine capacity.
- Time spent by the respondent in the custody of a commissioner of an office within the department of mental hygiene or in a local hospital or detention facility pending transfer to the custody of the commissioner after a finding of incapacity, shall be credited and applied towards the period of placement specified in a dispositional order on the original petition.
325.1. The probable-cause hearing; time.*
A probable cause hearing shall be scheduled if at the initial appearance the respondent denies the charges and it is determined he will be detained for more than __________ pending a fact finding hearing
THREE (3) DAYS
325.1. The probable-cause hearing; time.*
** The probable cause hearing shall be held within ________ following the initial appearance or within __________ following the filing of the petition whichever occurs sooner **
THREE (3) DAYS……… FOUR (4) DAYS
325.1. The probable-cause hearing; time.*
For good cause the hearing may be adjourned for up to an additional THREE (3) COURT DAYS
The respondent may waive the probable-cause hearing, and the fact that the respondent is not ready for a fact-finding hearing (SHALL/SHALL NOT) be deemed such a waiver.
shall not
325.2. The probable-cause hearing; order of proceeding.*
The probable cause hearing is similar to a felony hearing in the criminal procedure law. Only non-hearsay evidence shall be admissible to demonstrate reasonable cause to believe that the respondent committed a crime
325.2. The probable-cause hearing; order of proceeding.*
The probable cause hearing is similar to a felony hearing in the criminal procedure law. Only non-hearsay evidence shall be admissible to demonstrate reasonable cause to believe that the respondent committed a crime
325.2. The probable-cause hearing; order of proceeding.*
The order of the hearing is as follows:
- The presentment agency must call witnesses and offer evidence
- The respondent may as a matter of right testify on his own behalf
- The respondent may call and examine witnesses
PuWE RaTaW
325.2. The probable-cause hearing; order of proceeding.*
The hearing should be completed in one session however if adjourned it may be for _____________
only ONE (1) COURT DAY
325.3. The probable-cause hearing; determination*.
At the conclusion of the probable cause hearing the court shall determine whether it is reasonable to believe that
a crime was committed AND
whether it was the respondent who committed such crime
If the court finds that there is reasonable cause it shall further determine if continued detention is necessary
If the court does not find reasonable cause to believe a crime was committed and that the respondent committed it, the case shall be adjourned and the respondent released from detention
If the court or the presentment agency cannot hold the probable cause hearing in the specified time limits in FCA 325.1, the court may dismiss the petition or adjourn the hearing and release the respondent
(Unless the court finds that BOTH (1) and (2) listed above are true, the respondent must be released from detention. If the court finds that both (1) and (2) listed above exist, the court may continue to detain the respondent.)
§ 330.1. Bill of particulars.
“Bill of particulars” is a written statement by the presentment agency expanding upon the petition with factual information which are not recited in the petition and which pertain to the offense charged and including the substance of each respondent’s conduct
However, the presentment agency shall not be required to include in the bill of particulars matters of evidence relating to how the presentment agency intends to prove the elements of the offense charged or how the presentment agency intends to prove any item of factual information included in the bill of particulars.
“Bill of particulars” is a written statement by the presentment agency expanding upon the petition with factual information which are not recited in the petition and which pertain to the offense charged and including the substance of each respondent’s conduct
However, the presentment agency shall not be required to include in the bill of particulars matters of evidence relating to how the presentment agency intends to prove the elements of the offense charged or how the presentment agency intends to prove any item of factual information included in the bill of particulars.
§ 330.1. Bill of particulars.
“Request for a bill of particulars” is a written request served by respondent upon the presentment agency, without leave of the court, requesting a bill of particulars, specifying the items of factual information desired, and alleging that respondent cannot adequately prepare or conduct his defense without the information requested.
Bill of particulars upon request. Upon a timely request for a bill of particulars by a respondent, the presentment agency shall within fifteen days of the service of the request or as soon thereafter as is practicable, serve upon the respondent or his or her attorney and file with the court, the bill of particulars, except to the extent the presentment agency refuses to comply.
If the respondent is detained, the court shall direct the filing of the bill of particulars on an expedited basis and prior to the commencement of the fact-finding hearing.
“Request for a bill of particulars” is a written request served by respondent upon the presentment agency, without leave of the court, requesting a bill of particulars, specifying the items of factual information desired, and alleging that respondent cannot adequately prepare or conduct his defense without the information requested.
Bill of particulars upon request. Upon a timely request for a bill of particulars by a respondent, the presentment agency shall within fifteen days of the service of the request or as soon thereafter as is practicable, serve upon the respondent or his or her attorney and file with the court, the bill of particulars, except to the extent the presentment agency refuses to comply.
If the respondent is detained, the court shall direct the filing of the bill of particulars on an expedited basis and prior to the commencement of the fact-finding hearing.
§ 330.1. Bill of particulars.
- Timeliness of request.
A request for a bill of particulars shall be timely if made within thirty days after the conclusion of the initial appearance and before commencement of the fact-finding hearing. (see section on pre-trial motions)
If the respondent is not represented by counsel, and has requested an adjournment to retain counsel or to have counsel appointed, the thirty-day period shall commence, for the purposes of a request for a bill of particulars by the respondent, on the date counsel initially appeared on respondent’s behalf.
However, the court may direct compliance with a request for a bill of particulars that, for good cause shown, could not have been made within the time specified.
§ 330.1. Bill of particulars.
- Timeliness of request.
A request for a bill of particulars shall be timely if made within thirty days after the conclusion of the initial appearance and before commencement of the fact-finding hearing. (see section on pre-trial motions)
If the respondent is not represented by counsel, and has requested an adjournment to retain counsel or to have counsel appointed, the thirty-day period shall commence, for the purposes of a request for a bill of particulars by the respondent, on the date counsel initially appeared on respondent’s behalf.
However, the court may direct compliance with a request for a bill of particulars that, for good cause shown, could not have been made within the time specified.
§ 330.1. Bill of particulars.
- Request refused. The presentment agency may refuse to comply with the request for a bill of particulars or any portion of the request for a bill of particulars to the extent it reasonably believes:
that the item of factual information requested is not authorized to be included in a bill of particulars, or
that such information is not necessary to enable the respondent adequately to prepare or conduct his defense, or
that a protective order would be warranted or
that the demand is untimely.
- Request refused. The presentment agency may refuse to comply with the request for a bill of particulars or any portion of the request for a bill of particulars to the extent it reasonably believes:
that the item of factual information requested is not authorized to be included in a bill of particulars, or
that such information is not necessary to enable the respondent adequately to prepare or conduct his defense, or
that a protective order would be warranted or
that the demand is untimely.
§ 330.1. Bill of particulars.
Such refusal FOR A BILL OF PARTICULARS shall be made in a writing, which shall set forth the grounds of such belief as fully as possible, consistent with the reason for the refusal. Within __________ of the request or as soon thereafter as practicable, the refusal shall be served upon the respondent and a copy shall be filed with the court.
fifteen days
§ 330.1. Bill of particulars.
- Court ordered bill of particulars.
Upon motion of the respondent, the Court (MUST/MAY) order the presentment agency to produce a bill of particulars if it does not accept the grounds of their refusal or if they have not shown good cause for a delay if they did not produce a bill of particulars.
MUST
§ 330.1. Bill of particulars.
- Motion procedure.
Upon an order granting a motion pursuant to this section, the presentment agency must file with the court a bill of particulars, reciting every item of information designated in the order, and serve a copy thereof upon the respondent. Pending such filing and service, the fact-finding hearing is stayed.
§ 330.1. Bill of particulars.
- Motion procedure.
Upon an order granting a motion pursuant to this section, the presentment agency must file with the court a bill of particulars, reciting every item of information designated in the order, and serve a copy thereof upon the respondent. Pending such filing and service, the fact-finding hearing is stayed.
§ 330.1. Bill of particulars.
- Protective order.
The court may, upon motion of the presentment agency, or of any affected person, or upon determination of a motion of respondent for a court-ordered bill of particulars, or upon its own initiative, issue a protective order denying, limiting, conditioning, delaying or regulating the bill of particulars for good cause.
§ 330.1. Bill of particulars.
- Protective order.
The court may, upon motion of the presentment agency, or of any affected person, or upon determination of a motion of respondent for a court-ordered bill of particulars, or upon its own initiative, issue a protective order denying, limiting, conditioning, delaying or regulating the bill of particulars for good cause.
§ 330.1. Bill of particulars.
- Amendment.
At any time before commencement of the fact-finding hearing, the presentment agency may, without leave of the court, serve upon respondent and file with the court an amended bill of particulars.
At any time during the fact-finding hearing, upon application of the presentment agency and with notice to the respondent and an opportunity for him to be heard, the court must, upon finding that no undue prejudice will accrue to respondent and that the presentment agency has acted in good faith, permit the presentment agency to amend the bill of particulars.
Upon any amendment of the bill of particulars, the court must, upon application of respondent, order an adjournment of the fact-finding hearing or any other action it deems appropriate which may, by reason of the amendment, be necessary to accord the respondent an adequate opportunity to defend.
§ 330.1. Bill of particulars.
- Amendment.
At any time before commencement of the fact-finding hearing, the presentment agency may, without leave of the court, serve upon respondent and file with the court an amended bill of particulars.
At any time during the fact-finding hearing, upon application of the presentment agency and with notice to the respondent and an opportunity for him to be heard, the court must, upon finding that no undue prejudice will accrue to respondent and that the presentment agency has acted in good faith, permit the presentment agency to amend the bill of particulars.
Upon any amendment of the bill of particulars, the court must, upon application of respondent, order an adjournment of the fact-finding hearing or any other action it deems appropriate which may, by reason of the amendment, be necessary to accord the respondent an adequate opportunity to defend.
