N.Y. Criminal Procedure Law § 722.23: Removal of adolescent offenders to family court

§ 722.23 Removal of adolescent offenders to family court.

1. (a) Following the arraignment of a defendant charged with a crime

committed when he or she was sixteen, or commencing October first, two

thousand nineteen, seventeen years of age, other than any class A felony

except for those defined in article two hundred twenty of the penal law,

a violent felony defined in section 70.02 of the penal law or a felony

listed in paragraph one or two of subdivision forty-two of section 1.20

of this chapter, or an offense set forth in the vehicle and traffic law,

the court shall order the removal of the action to the family court in

accordance with the applicable provisions of article seven hundred

twenty-five of this title unless, within thirty calendar days of such

arraignment, the district attorney makes a motion to prevent removal of

the action pursuant to this subdivision. If the defendant fails to

report to the probation department as directed, the thirty day time

period shall be tolled until such time as he or she reports to the

probation department.

(b) A motion to prevent removal of an action in youth part shall be

made in writing and upon prompt notice to the defendant. The motion

shall contain allegations of sworn fact based upon personal knowledge of

the affiant, and shall indicate if the district attorney is requesting a

hearing. The motion shall be noticed to be heard promptly.

(c) The defendant shall be given an opportunity to reply. The

defendant shall be granted any reasonable request for a delay. Either

party may request a hearing on the facts alleged in the motion to

prevent removal of the action. The hearing shall be held expeditiously.

(d) The court shall deny the motion to prevent removal of the action

in youth part unless the court makes a determination upon such motion by

the district attorney that extraordinary circumstances exist that should

prevent the transfer of the action to family court.

(e) The court shall make a determination in writing or on the record

within five days of the conclusion of the hearing or submission by the

defense, whichever is later. Such determination shall include findings

of fact and to the extent practicable conclusions of law.

(f) For the purposes of this section, there shall be a presumption

against custody and case planning services shall be made available to

the defendant.

(g) Notwithstanding any other provision of law, section 308.1 of the

family court act shall apply to all actions transferred pursuant to this

section provided, however, such cases shall not be considered removals

subject to subdivision thirteen of such section 308.1.

(h) Nothing in this subdivision shall preclude, and a court may order,

the removal of an action to family court where all parties agree or

pursuant to this chapter.

2. (a) Upon the arraignment of a defendant charged with a crime

committed when he or she was sixteen or, commencing October first, two

thousand nineteen, seventeen years of age on a class A felony, other

than those defined in article 220 of the penal law, or a violent felony

defined in section 70.02 of the penal law, the court shall schedule an

appearance no later than six calendar days from such arraignment for the

purpose of reviewing the accusatory instrument pursuant to this

subdivision. The court shall notify the district attorney and defendant

regarding the purpose of such appearance.

(b) Upon such appearance, the court shall review the accusatory

instrument and any other relevant facts for the purpose of making a

determination pursuant to paragraph (c) of this subdivision. Both

parties may be heard and submit information relevant to the

determination.

(c) The court shall order the action to proceed in accordance with

subdivision one of this section unless, after reviewing the papers and

hearing from the parties, the court determines in writing that the

district attorney proved by a preponderance of the evidence one or more

of the following as set forth in the accusatory instrument:

(i) the defendant caused significant physical injury to a person other

than a participant in the offense; or

(ii) the defendant displayed a firearm, shotgun, rifle or deadly

weapon as defined in the penal law in furtherance of such offense; or

(iii) the defendant unlawfully engaged in vaginal sexual contact, oral

sexual contact, anal sexual contact, or sexual contact as defined in

section 130.00 of the penal law.

(d) Where the court makes a determination that the action shall not

proceed in accordance with subdivision one of this section, such

determination shall be made in writing or on the record and shall

include findings of fact and to the extent practicable conclusions of

law.

(e) Nothing in this subdivision shall preclude, and the court may

order, the removal of an action to family court where all parties agree

or pursuant to this chapter.

3. Notwithstanding the provisions of any other law, if at any time one

or more charges in the accusatory instrument are reduced, such that the

elements of the highest remaining charge would be removable pursuant to

subdivisions one or two of this section, then the court, sua sponte or

in response to a motion pursuant to subdivisions one or two of this

section by the defendant, shall promptly notify the parties and direct

that the matter proceed in accordance with subdivision one of this

section, provided, however, that in such instance, the district attorney

must file any motion to prevent removal within thirty days of effecting

or receiving notice of such reduction.

4. A defendant may waive review of the accusatory instrument by the

court and the opportunity for removal in accordance with this section,

provided that such waiver is made by the defendant knowingly,

voluntarily and in open court, in the presence of and with the approval

of his or her counsel and the court. An earlier waiver shall not

constitute a waiver of review and the opportunity for removal under this

section.