N.Y. Family Court Act § 353.5: Designated felony acts; restrictive placement

§ 353.5. Designated felony acts; restrictive placement. 1. Where the

respondent is found to have committed a designated felony act, the order

of disposition shall be made within twenty days of the conclusion of the

dispositional hearing and shall include a finding based on a

preponderance of the evidence as to whether, for the purposes of this

article, the respondent does or does not require a restrictive placement

under this section, in connection with which the court shall make

specific written findings of fact as to each of the elements set forth

in paragraphs (a) through (e) in subdivision two as related to the

particular respondent. If the court finds that a restrictive placement

under this section is not required, the court shall enter any other

order of disposition provided in section 352.2. If the court finds that

a restrictive placement is required, it shall continue the proceeding

and enter an order of disposition for a restrictive placement. Every

order under this section shall be a dispositional order, shall be made

after a dispositional hearing and shall state the grounds for the order.

2. In determining whether a restrictive placement is required, the

court shall consider:

(a) the needs and best interests of the respondent;

(b) the record and background of the respondent, including but not

limited to information disclosed in the probation investigation and

diagnostic assessment;

(c) the nature and circumstances of the offense, including whether any

injury was inflicted by the respondent or another participant;

(d) the need for protection of the community; and

(e) the age and physical condition of the victim.

3. Notwithstanding the provisions of subdivision two, the court shall

order a restrictive placement in any case where the respondent is found

to have committed a designated felony act in which the respondent

inflicted serious physical injury, as that term is defined in

subdivision ten of section 10.00 of the penal law, upon another person

who is sixty-two years of age or more.

* 4. When the order is for a restrictive placement in the case of a

youth found to have committed a designated class A felony act,

(a) the order shall provide that:

(i) the respondent shall be placed with the office of children and

family services for an initial period of five years. If the respondent

has been in detention pending disposition, the initial period of

placement ordered under this section shall be credited with and

diminished by the amount of time spent by the respondent in detention

prior to the commencement of the placement unless the court finds that

all or part of such credit would not serve the needs and best interests

of the respondent or the need for protection of the community.

(ii) the respondent shall initially be confined in a secure facility

for a period set by the order, to be not less than twelve nor more than

eighteen months provided, however, where the order of the court is made

in compliance with subdivision five of this section, the respondent

shall initially be confined in a secure facility for eighteen months.

(iii) after the period set under subparagraph (ii) of this paragraph,

the respondent shall be placed in a residential facility for a period of

twelve months; provided, however, that if the respondent has been placed

from a family court in a social services district operating an approved

juvenile justice services close to home initiative pursuant to section

four hundred four of the social services law for an act committed when

the respondent was under sixteen years of age, once the time frames in

subparagraph (ii) of this paragraph are met:

(A) beginning on the effective date of such a social services

district's plan that only covers juvenile delinquents placed in

non-secure settings, if the office of children and family services

concludes, based on the needs and best interests of the respondent and

the need for protection for the community, that a non-secure level of

care is appropriate for the respondent, such office shall file a

petition pursuant to paragraph (b) or (c) of subdivision two of section

355.1 of this part to have the respondent placed with the applicable

local commissioner of social services; and

(B) beginning on the effective date of such a social services

district's plan that covers juvenile delinquents placed in limited

secure settings, if the office of children and family services

concludes, based on the needs and best interests of the respondent and

the need for protection for the community, that a non-secure or limited

secure level of care is appropriate for the respondent, such office

shall file a petition pursuant to paragraph (b) or (c) of subdivision

two of section 355.1 of this part to have the respondent placed with the

applicable local commissioner of social services.

(C) If the respondent is placed with the local commissioner of social

services in accordance with clause (A) or (B) of this subparagraph, the

remainder of the provisions of this section shall continue to apply to

the respondent's placement.

(iv) the respondent may not be released from a secure facility or

transferred to a facility other than a secure facility during the period

provided in subparagraph (ii) of this paragraph, nor may the respondent

be released from a residential facility during the period provided in

subparagraph (iii) of this paragraph. No home visits shall be permitted

during the period of secure confinement set by the court order or one

year, whichever is less, except for emergency visits for medical

treatment or severe illness or death in the family. All home visits must

be accompanied home visits: (A) while a youth is confined in a secure

facility, whether such confinement is pursuant to a court order or

otherwise; (B) while a youth is confined in a residential facility other

than a secure facility within six months after confinement in a secure

facility; and (C) while a youth is confined in a residential facility

other than a secure facility in excess of six months after confinement

in a secure facility unless two accompanied home visits have already

occurred. An "accompanied home visit" shall mean a home visit during

which the youth shall be accompanied at all times while outside the

secure or residential facility by appropriate personnel of the office of

children and family services or, if applicable, a local social services

district which operates an approved juvenile justice services close to

home initiative pursuant to section four hundred four of the social

services law.

(b) Notwithstanding any other provision of law, during the first

twelve months of the respondent's placement, no motion, hearing or order

may be made, held or granted pursuant to section 355.1; provided,

however, that during such period a motion to vacate the order may be

made pursuant to such section, but only upon grounds set forth in

section 440.10 of the criminal procedure law.

(c) During the placement or any extension thereof:

(i) after the expiration of the period provided in subparagraph (iii)

of paragraph (a) of this subdivision, the respondent shall not be

released from a residential facility without the written approval of the

office of children and family services or, if applicable, a social

services district operating an approved juvenile justice services close

to home initiative pursuant to section four hundred four of the social

services law.

(ii) the respondent shall be subject to intensive supervision whenever

not in a secure or residential facility.

(iii) the respondent shall not be discharged from the custody of the

office of children and family services or, if applicable, a social

services district operating an approved juvenile justice services close

to home initiative pursuant to section four hundred four of the social

services law, unless a motion therefor under section 355.1 is granted by

the court, which motion shall not be made prior to the expiration of

three years of the placement.

(iv) unless otherwise specified in the order, the office of children

and family services or, if applicable, a social services district

operating an approved juvenile justice services close to home initiative

pursuant to section four hundred four of the social services law shall

report in writing to the court not less than once every six months

during the placement on the status, adjustment and progress of the

respondent.

(d) Upon the expiration of the initial period of placement, or any

extension thereof, the placement may be extended in accordance with

section 355.3 on a petition of any party or the office of children and

family services, or, if applicable, a social services district operating

an approved juvenile justice services close to home initiative pursuant

to section four hundred four of the social services law, after a

dispositional hearing, for an additional period not to exceed twelve

months, but no initial placement or extension of placement under this

section may continue beyond the respondent's twenty-first birthday, or,

for an act that was committed when the respondent was sixteen years of

age or older, the respondent's twenty-third birthday.

(e) The court may also make an order pursuant to subdivision two of

section 353.4.

* NB Effective until March 31, 2028

* 4. When the order is for a restrictive placement in the case of a

youth found to have committed a designated class A felony act,

(a) the order shall provide that:

(i) the respondent shall be placed with the division for youth for an

initial period of five years. If the respondent has been in detention

pending disposition, the initial period of placement ordered under this

section shall be credited with and diminished by the amount of time

spent by the respondent in detention prior to the commencement of the

placement unless the court finds that all or part of such credit would

not serve the needs and best interests of the respondent or the need for

protection of the community.

(ii) the respondent shall initially be confined in a secure facility

for a period set by the order, to be not less than twelve nor more than

eighteen months provided, however, where the order of the court is made

in compliance with subdivision five the respondent shall initially be

confined in a secure facility for eighteen months.

(iii) after the period set under clause (ii), the respondent shall be

placed in a residential facility for a period of twelve months.

(iv) the respondent may not be released from a secure facility or

transferred to a facility other than a secure facility during the period

provided in clause (ii) of this paragraph, nor may the respondent be

released from a residential facility during the period provided in

clause (iii). No home visits shall be permitted during the period of

secure confinement set by the court order or one year, whichever is

less, except for emergency visits for medical treatment or severe

illness or death in the family. All home visits must be accompanied home

visits: (A) while a youth is confined in a secure facility, whether such

confinement is pursuant to a court order or otherwise; (B) while a youth

is confined in a residential facility other than a secure facility

within six months after confinement in a secure facility; and (C) while

a youth is confined in a residential facility other than a secure

facility in excess of six months after confinement in a secure facility

unless two accompanied home visits have already occurred. An

"accompanied home visit" shall mean a home visit during which the youth

shall be accompanied at all times while outside the secure or

residential facility by appropriate personnel of the division for youth

designated pursuant to regulations of the director of the division.

(b) Notwithstanding any other provision of law, during the first

twelve months of the respondent's placement, no motion, hearing or order

may be made, held or granted pursuant to section 355.1; provided,

however, that during such period a motion to vacate the order may be

made pursuant to 355.1, but only upon grounds set forth in section

440.10 of the criminal procedure law.

(c) During the placement or any extension thereof:

(i) after the expiration of the period provided in clause (iii) of

paragraph (a), the respondent shall not be released from a residential

facility without the written approval of the director of the division

for youth or his designated deputy director.

(ii) the respondent shall be subject to intensive supervision whenever

not in a secure or residential facility.

(iii) the respondent shall not be discharged from the custody of the

division for youth, unless a motion therefor under section 355.1 is

granted by the court, which motion shall not be made prior to the

expiration of three years of the placement.

(iv) unless otherwise specified in the order, the division shall

report in writing to the court not less than once every six months

during the placement on the status, adjustment and progress of the

respondent.

(d) Upon the expiration of the initial period of placement, or any

extension thereof, the placement may be extended in accordance with

section 355.3 on a petition of any party or the office of children and

family services after a dispositional hearing, for an additional period

not to exceed twelve months, but no initial placement or extension of

placement under this section may continue beyond the respondent's

twenty-first birthday, or, for an act that was committed when the

respondent was sixteen years of age or older, the respondent's

twenty-third birthday.

(e) The court may also make an order pursuant to subdivision two of

section 353.4.

* NB Effective March 31, 2028

* 5. When the order is for a restrictive placement in the case of a

youth found to have committed a designated felony act, other than a

designated class A felony act,

(a) the order shall provide that:

(i) the respondent shall be placed with the office of children and

family services for an initial period of three years. If the respondent

has been in detention pending disposition, the initial period of

placement ordered under this section shall be credited with and

diminished by the amount of time spent by the respondent in detention

prior to the commencement of the placement unless the court finds that

all or part of such credit would not serve the needs and best interests

of the respondent or the need for protection of the community.

(ii) the respondent shall initially be confined in a secure facility

for a period set by the order, to be not less than six nor more than

twelve months.

(iii) after the period set under subparagraph (ii) of this paragraph,

the respondent shall be placed in a residential facility for a period

set by the order, to be not less than six nor more than twelve months;

provided, however, that if the respondent has been placed from a family

court in a social services district operating an approved juvenile

justice services close to home initiative pursuant to section four

hundred four of the social services law, once the time frames in

subparagraph (ii) of this paragraph are met:

(A) beginning on the effective date of such a social services

district's plan that only covers juvenile delinquents placed in

non-secure settings, if the office of children and family services

concludes, based on the needs and best interests of the respondent and

the need for protection for the community, that a non-secure level of

care is appropriate for the respondent, such office shall file a

petition pursuant to paragraph (b) or (c) of subdivision two of section

355.1 of this part to have the respondent placed with the applicable

local commissioner of social services; and

(B) beginning on the effective date of such a social services

district's plan to implement programs for youth placed in limited secure

settings, if the office of children and family services concludes, based

on the needs and best interests of the respondent and the need for

protection for the community, that a non-secure or limited secure level

of care is appropriate for the respondent, such office shall file a

petition pursuant to paragraph (b) or (c) of subdivision two of section

355.1 of this part to have the respondent placed with the applicable

local commissioner of social services.

(C) If the respondent is placed with a local commissioner of social

services in accordance with clause (A) or (B) of this subparagraph, the

remainder of the provisions of this section shall continue to apply to

the respondent's placement.

(iv) the respondent may not be released from a secure facility or

transferred to a facility other than a secure facility during the period

provided by the court pursuant to subparagraph (ii) of this paragraph,

nor may the respondent be released from a residential facility during

the period provided by the court pursuant to subparagraph (iii) of this

paragraph. No home visits shall be permitted during the period of secure

confinement set by the court order or one year, whichever is less,

except for emergency visits for medical treatment or severe illness or

death in the family. All home visits must be accompanied home visits:

(A) while a youth is confined in a secure facility, whether such

confinement is pursuant to a court order or otherwise; (B) while a youth

is confined in a residential facility other than a secure facility

within six months after confinement in a secure facility; and (C) while

a youth is confined in a residential facility other than a secure

facility in excess of six months after confinement in a secure facility

unless two accompanied home visits have already occurred. An

"accompanied home visit" shall mean a home visit during which the youth

shall be accompanied at all times while outside the secure or

residential facility by appropriate personnel of the office of children

and family services or, if applicable, a social services district

operating an approved juvenile justice close to home initiative pursuant

to section four hundred four of the social services law.

(b) Notwithstanding any other provision of law, during the first six

months of the respondent's placement, no motion, hearing or order may be

made, held or granted pursuant to section 355.1; provided, however, that

during such period a motion to vacate the order may be made pursuant to

such section, but only upon grounds set forth in section 440.10 of the

criminal procedure law.

(c) During the placement or any extension thereof:

(i) after the expiration of the period provided in subparagraph (iii)

of paragraph (a) of this subdivision, the respondent shall not be

released from a residential facility without the written approval of the

office of children and family services or, if applicable, a social

services district operating an approved juvenile justice services close

to home initiative pursuant to section four hundred four of the social

services law.

(ii) the respondent shall be subject to intensive supervision whenever

not in a secure or residential facility.

(iii) the respondent shall not be discharged from the custody of the

office of children and family services, or, if applicable, a social

services district operating an approved juvenile justice services close

to home initiative pursuant to section four hundred four of the social

services law.

(iv) unless otherwise specified in the order, the office of children

and family services or, if applicable, a social services district

operating an approved juvenile justice services close to home initiative

pursuant to section four hundred four of the social services law, shall

report in writing to the court not less than once every six months

during the placement on the status, adjustment and progress of the

respondent.

(d) Upon the expiration of the initial period of placement or any

extension thereof, the placement may be extended in accordance with

section 355.3 upon petition of any party or the office of children and

family services or, if applicable, a social services district operating

an approved juvenile justice services close to home initiative pursuant

to section four hundred four of the social services law, after a

dispositional hearing, for an additional period not to exceed twelve

months, but no initial placement or extension of placement under this

section may continue beyond the respondent's twenty-first birthday.

(e) The court may also make an order pursuant to subdivision two of

section 353.4.

* NB Effective until March 31, 2028

* 5. When the order is for a restrictive placement in the case of a

youth found to have committed a designated felony act, other than a

designated class A felony act,

(a) the order shall provide that:

(i) the respondent shall be placed with the division for youth for an

initial period of three years. If the respondent has been in detention

pending disposition, the initial period of placement ordered under this

section shall be credited with and diminished by the amount of time

spent by the respondent in detention prior to the commencement of the

placement unless the court finds that all or part of such credit would

not serve the needs and best interests of the respondent or the need for

protection of the community.

(ii) the respondent shall initially be confined in a secure facility

for a period set by the order, to be not less than six nor more than

twelve months.

(iii) after the period set under clause (ii), the respondent shall be

placed in a residential facility for a period set by the order, to be

not less than six nor more than twelve months.

(iv) the respondent may not be released from a secure facility or

transferred to a facility other than a secure facility during the period

provided by the court pursuant to clause (ii), nor may the respondent be

released from a residential facility during the period provided by the

court pursuant to clause (iii). No home visits shall be permitted during

the period of secure confinement set by the court order or one year,

whichever is less, except for emergency visits for medical treatment or

severe illness or death in the family. All home visits must be

accompanied home visits: (A) while a youth is confined in a secure

facility, whether such confinement is pursuant to a court order or

otherwise; (B) while a youth is confined in a residential facility other

than a secure facility within six months after confinement in a secure

facility; and (C) while a youth is confined in a residential facility

other than a secure facility in excess of six months after confinement

in a secure facility unless two accompanied home visits have already

occurred. An "accompanied home visit" shall mean a home visit during

which the youth shall be accompanied at all times while outside the

secure or residential facility by appropriate personnel of the division

for youth designated pursuant to regulations of the director of the

division.

(b) Notwithstanding any other provision of law, during the first six

months of the respondent's placement, no motion, hearing or order may be

made, held or granted pursuant to section 355.1; provided, however, that

during such period a motion to vacate the order may be made pursuant to

such section, but only upon grounds set forth in section 440.10 of the

criminal procedure law.

(c) During the placement or any extension thereof:

(i) after the expiration of the period provided in clause (iii) of

paragraph (a), the respondent shall not be released from a residential

facility without the written approval of the director of the division

for youth or his designated deputy director.

(ii) the respondent shall be subject to intensive supervision whenever

not in a secure or residential facility.

(iii) the respondent shall not be discharged from the custody of the

division for youth.

(iv) unless otherwise specified in the order, the division shall

report in writing to the court not less than once every six months

during the placement on the status, adjustment and progress of the

respondent.

(d) Upon the expiration of the initial period of placement or any

extension thereof, the placement may be extended in accordance with

section 355.3 upon petition of any party or the division for youth,

after a dispositional hearing, for an additional period not to exceed

twelve months, but no initial placement or extension of placement under

this section may continue beyond the respondent's twenty-first birthday.

(e) The court may also make an order pursuant to subdivision two of

section 353.4.

* NB Effective March 31, 2028

6. When the order is for a restrictive placement in the case of a

youth found to have committed any designated felony act and such youth

has been found by a court to have committed a designated felony act on a

prior occasion, regardless of the age of such youth at the time of

commission of such prior act, the order of the court shall be made

pursuant to subdivision four.

7. If the dispositional hearing has been adjourned on a finding of

specific circumstances pursuant to subdivision six of section 350.1

while the respondent is in detention, where a restrictive placement is

subsequently ordered, time spent by the respondent in detention during

such additional adjournment shall be credited and applied against any

term of secure confinement ordered by the court pursuant to subdivision

four or five.

* 8. The office of children and family services or, if applicable, the

social services district operating an approved close to home initiative

pursuant to section four hundred four of the social services law, shall

retain the power to continue the confinement of the youth in a secure or

other residential facility, as applicable, beyond the periods specified

by the court, within the term of the placement.

* NB Effective until March 31, 2028

* 8. The division for youth shall retain the power to continue the

confinement of the youth in a secure or other residential facility

beyond the periods specified by the court, within the term of the

placement.

* NB Effective March 31, 2028