N.Y. Criminal Procedure Law § 722.22: Motion to remove juvenile offender to family court

§ 722.22 Motion to remove juvenile offender to family court.

1. After a motion by a juvenile offender, pursuant to subdivision five

of section 722.20 of this article, or after arraignment of a juvenile

offender upon an indictment, the court may, on motion of any party or on

its own motion:

(a) except as otherwise provided by paragraph (b) of this subdivision,

order removal of the action to the family court pursuant to the

provisions of article seven hundred twenty-five of this title, if, after

consideration of the factors set forth in subdivision two of this

section, the court determines that to do so would be in the interests of

justice; or

(b) with the consent of the district attorney, order removal of an

action involving an indictment charging a juvenile offender with murder

in the second degree as defined in section 125.25 of the penal law; rape

in the first degree, as defined in paragraph (a) of subdivision one,

paragraph (a) of subdivision two and paragraph (a) of subdivision three

of section 130.35 of the penal law; rape in the first degree as formerly

defined in subdivision one of section 130.35 of the penal law; a crime

formerly defined in subdivision one of section 130.50 of the penal law;

or an armed felony as defined in paragraph (a) of subdivision forty-one

of section 1.20 of this chapter, to the family court pursuant to the

provisions of article seven hundred twenty-five of this title if the

court finds one or more of the following factors: (i) mitigating

circumstances that bear directly upon the manner in which the crime was

committed; (ii) where the defendant was not the sole participant in the

crime, the defendant's participation was relatively minor although not

so minor as to constitute a defense to the prosecution; or (iii)

possible deficiencies in the proof of the crime, and, after

consideration of the factors set forth in subdivision two of this

section, the court determined that removal of the action to the family

court would be in the interests of justice.

2. In making its determination pursuant to subdivision one of this

section the court shall, to the extent applicable, examine individually

and collectively, the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at

trial;

(d) the history, character and condition of the defendant;

(e) the purpose and effect of imposing upon the defendant a sentence

authorized for the offense;

(f) the impact of a removal of the case to the family court on the

safety or welfare of the community;

(g) the impact of a removal of the case to the family court upon the

confidence of the public in the criminal justice system;

(h) where the court deems it appropriate, the attitude of the

complainant or victim with respect to the motion; and

(i) any other relevant fact indicating that a judgment of conviction

in the criminal court would serve no useful purpose.

3. The procedure for bringing on a motion pursuant to subdivision one

of this section, shall accord with the procedure prescribed in

subdivisions one and two of section 210.45 of this chapter. After all

papers of both parties have been filed and after all documentary

evidence, if any, has been submitted, the court must consider the same

for the purpose of determining whether the motion is determinable on the

motion papers submitted and, if not, may make such inquiry as it deems

necessary for the purpose of making a determination.

4. For the purpose of making a determination pursuant to this section,

any evidence which is not legally privileged may be introduced. If the

defendant testifies, his testimony may not be introduced against him in

any future proceeding, except to impeach his testimony at such future

proceeding as inconsistent prior testimony.

5. a. If the court orders removal of the action to family court, it

shall state on the record the factor or factors upon which its

determination is based, and, the court shall give its reasons for

removal in detail and not in conclusory terms.

b. The district attorney shall state upon the record the reasons for

his consent to removal of the action to the family court. The reasons

shall be stated in detail and not in conclusory terms.