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A05891 Summary:

BILL NOA05891B
 
SAME ASSAME AS S02800-B
 
SPONSORJoyner
 
COSPNSRSimon, Dickens, Carroll, Aubry, Barron, O'Donnell, Dinowitz, Forrest, Jackson, Hevesi, Mitaynes, Gonzalez-Rojas
 
MLTSPNSR
 
Amd §§305.2 & 724, Fam Ct Act; amd §§140.20, 140.27 & 140.40, CP L
 
Amends procedures required for the custodial interrogation of children to provide additional protections and for taking juveniles and sixteen and seventeen year olds into custody.
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A05891 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A5891B
 
SPONSOR: Joyner
  TITLE OF BILL: An act to amend the family court act and the criminal procedure law, in relation to the custodial interrogation of juveniles by law enforcement   PURPOSE: This bill makes a number of changes to the Family Court Act to clarify and protect the rights of children in the custody of law enforcement and makes corresponding changes to the Criminal Procedure Law to address children arrested as juvenile offenders and consult with an attorney before they can be subjected to custodial interrogation by law enforce- ment, thereby ensuring any waiver of rights under Miranda is genuinely knowing, voluntary, and intelligent. The bill also requires that a child arrested without a warrant be brought directly to court, as opposed to the police station, if a parent or legally responsible adult is not expected to appear for them and they are not being questioned, unless otherwise required under the Criminal Procedure Law.   SUMMARY OF PROVISIONS: Section One amends FCA § 305.2(3) to make clear that law enforcement's obligation to "immediately" notify a parent or person legally responsi- ble (PLR) that their child has been taken into custody requires that this notification take place before that child can be taken from the location at which he or she was taken into custody to the police station or any other location. Section Two amends FCA § 305.2(4)(a) to state that when law enforcement has notified an arrested child's pare t or PLR and reasonably believes that the parent or PLR will appear for the child, law enforcement shall take that child to his home, the station house, or another agreed upon location to release him to his parent or PLR. Section Three amends FCA § 305.2(4)(b) to state that when law enforce- ment does not reasonably believe that an arrested child's parent or PLR will appear for the child, law enforcement shall take that child to family court or, if family court is not in session, to the designated magistrate for the child's initial appearance under FCA § 307.4. Section Four amends FCA § 305.2(4)(c) to conform with other amended subsections and clarify that an arrested child shall only be taken to detention if the officer did not release the child or bring the child to family court or the designated magistrate. Section Five amends FCA § 305.2(5) to require that when a child has allegedly committed a designated felony act and the family court is not session that law enforcement to take such youth to the most accessible magistrate to conduct a hearing under FCA section 307.4 Section Six amends FCA § 305.2(6) for conformity only, by deleting the phrase "In all other cases." Section Seven amends and renumbers FCA § 305.2(7) to FCA § 305.2(8) and adds a new FCA § 305.2(7) which clarifies that if an officer determines that questioning of a child necessary prior to taking certain actions the officer may take the child to a facility designated as suitable for questioning by the chief administrator of the courts. Section Seven also amends FCA § 305.2(8) to state that no child shall be questioned under this section unless and until "the child has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may not be waived. Also, section seven establishes that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if present, has not been advised of and voluntarily waived Miranda; or when the questioning of the child was not necessary. Section 8 amends FCA § 724(a) to make clear that law enforcement's obli- gation with respect to a child taken into custody as a person in need of supervision to "immediately" notify a parent or person legally responsi- ble that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he or she was taken into custody to the police station or any other location. Section 8 also mends FCA § 724(b) by removing language relating to when law enforcement deems questioning of the child necessary, renumbers FCA § 724(d) to FCA § 724(e), and inserts a new FCA § 724(d), which clarifies that if an officer determines that questioning in necessary prior to taking certain actions the officer may take the child to a facility designated as suitable for questioning by the chief administrator of the courts. FCA § 724(e) now provides that in addition to the child's age and the presence or absence of his parents or other person legally responsible for his care, parental notification shall be a factor considered in determining the suitability and reasonable period of time for questioning the child. Section 8 also creates FCA § 724(f), which provides that statements made to law enforcement prior to the commencement of a fact-finding hearing may not be admitted into evidence at a fact-finding hearing. Section 9 amends CPL § 140.20(6) to create separate paragraphs and in paragraph (a) makes clear that law enforcement's obligation with respect to a child taken into, custody as a juvenile offender or as a person sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a parent or person legally responsible that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he/she was taken into custody to the police station or any other location. Section 9 also, in proposed CPL § 140.20(6)(c), adds the provision that no child shall be questioned under this section unless and until "the child has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may not be waived. Section 9 also creates CPL § 140.20(6)(e) to establish that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if present, has not been advised of and voluntarily waived Miranda; or when the ques- tioning of the child was not necessary. Section 10 amends CPL § 140.27(5) to create separate paragraphs and in paragraph (a) makes clear that law enforcement's obligation with respect to a child taken into custody as a juvenile offender or as a person sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a parent or person legally responsible that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he or she was taken into custody to the police station or any other location. Section 10 also, in proposed CPL § 140.27(5)(c) adds the provision that no child shall be questioned under this section unless and until "the child-has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may not be waived. Section 10 also creates CPL.§ 140.27(5)(e) to establish that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if-present, has not been advised of and voluntarily waived Miranda; or when the ques- tioning of the child was not necessary. Section 11 amends CPL § 140.40(5) to create separate paragraphs and in paragraph (a) makes clear that law enforcement's obligation with respect to a child taken into custody as a juvenile offender or as a person sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a parent or person legally responsible that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he or she was taken into custody to the police station or any other location. Section 11 also, in proposed CPL § 140.40(5)(c) adds the provision that no child shall be questioned under this section unless and until "the child has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may'not be waived. Section 11 also creates CPL § 140.40(5)(e) to establish that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if present, has not been advised of and voluntarily waived Miranda; or when the ques- tioning of the child was not necessary.   EXISTING LAW: Existing law in New York State does not ensure that children under 18 years old - with all of their inherent developmental limitations - are adequately and appropriately able to protect their right to remain silent pursuant to the 5th Amendment of the United States Constitution. The Family Court Act and the Criminal Procedure Law already require law enforcement to "immediately" notify the parent or person legally respon- sible of a child's arrest. The term "immediate," however, is undefined under current law, and in practice, law enforcement regularly brings arrested children to the police station house before notifying parents or persons legally responsible The statutes also state that law enforce- ment may only interrogate children when "necessary," but do not define that crucial term. This ambiguity not only places vulnerable youth at risk of being unreasonably interrogated, but it also forces law enforce- ment to contend with uncertainty about what they are permitted to do under the law, and leaves the courts with little guidance when called upon to interpret this requirement. Also under current law, when the police take a youth into custody and wish to interrogate that youth, the police must advise the child of his/her right to remain silent and, whenever possible, notify a parent or responsible adult to assist the youth in deciding whether to waive this right. Family Court, Act § 305.2; Criminal Procedure Law § 140.20(6). This process does not prevent youth from waiving their Miranda rights nor does it ensure that waiver is knowing, voluntary and intelligent, as required by the Constitution.   JUSTIFICATION: The bill makes three crucial changes to § 305.2 of the Family Court Act and to §§ 140.20(6), 140.27(5) and 140.40(5) of the Criminal Procedure Law. First, it clarifies that law enforcement cannot take a child to the station house until they have notified a parent or person legally responsible. Second, it requires that juveniles consult with counsel before they can waive their rights under Miranda. The bill also makes the first two changes to Family Court Act § 724. Family Court Act §§ 305.2 and 724 and Criminal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5) already require that law enforcement immediately notify an arrested child's parent or legally responsible adult that the child has been taken into custody; this proposal clari- fies that immediate notification must take place before the officer takes the child to another location. In an era in which all officers are equipped with mobile phones, they are able to make contact with parents without first taking children to the station house. In most cases, this will also mean the officer will be able to make a more immediate deter- mination whether to bring the child to the station house, to the family court, or to another location permitted by statute. Under this proposal, unless questioning is necessary, after notifying a parent, the officer may transport a child to his home, to another greed upon location, or to the station house for purposes of releasing the child to the parent with a desk appearance ticket under Family Court Act § 305.2 or after securing a written promise from the parent to bring the child to the designated lead agency at specified time and place under Family Court Act § 724. When the officer does not have reason to believe that the parent will appear for the child, unless questioning is neces- sary, the officer may bring the child straightaway to family court, before a designated magistrate, to the designated lead agency, or to another location specified in § 305.2(4) or § 724. Under the proposed Criminal Procedure Law provisions, unless questioning is necessary, after notifying the parent, the officer may release the youth with a desk appearance ticket or bring the youth to the appropriate court or otherwise proceed according to the provisions of the CPL. This bill would also establish that under Family Court Act § 3052 and Criminal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5), a child suspect can only be questioned after consulting with an attorney by phone, video, or in person. That consultation would be non-waivable, and the taking of a statement without consultation with counsel, necessity, or waiver of Miranda rights by a parent if present, would result in suppression of the statement. Under Family Court Act § 724, a statement would not be admissible into evidence at a fact finding hearing, since the petitioner is usually a parent and thus the child can never have the advice and assistance of a parent who does not have a conflict of inter- est. This treatment is comparable to those statements given to the designated lead agency before fact finding. The decision to waive one's constitutional right to be silent has enormous consequences, which is why the law requires. that the decision be "knowing, voluntary, and intelligent." See Miranda v. Arizona 384 U.S. 436 (1966). Because chil- dren are fundamentally different from adults, different safeguards are required in order for a child to make a knowing, voluntary and intelli- gent decision about a Miranda waiver. The importance of additional Miranda protections for adolescents is well-grounded in science. It is firmly established that brain develop- ment continues into adulthood, and in recent years, the scientific community has come to a resounding consensus that the prefrontal cortex of the brain which largely governs decision-making and judgment general- ly does not mature until well after the teenage years.* In fact, the research demonstrates that the brain undergoes a "rewiring" process that is not complete until approximately 25 years of age.** As a result, youth are not yet able to consider the long-term consequences of their actions or to resist environmental pressures as well as adults. The ability to consider the consequences of one's actions and vulnerability to environmental pressure are precisely the kinds of issues at play in a custodial interrogation setting.*** Adolescents especially struggle to process information and make sound decisions in stressful situations, such as during interrogation.**** Additionally, research shows that adolescents - especially those in the justice system, who have high rates of intellectual disability - often do not have the cognitive skills necessary to understand the words or concepts in the Miranda warnings. The consensus that adolescents' decision-making capabilities are not fully developed and that, for this reason, young people require unique legal protections has been recognized and embraced by the United States Supreme Court. Children are, in the Court's words, "generally less mature and responsible than adults;" "they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them"; and "they are more vulnerable or susceptible to_ outside pressures than adults." J.D.B.V. North Carolina, 131 S.Ct. 2394, 2397 (2011) (internal quotations omitted). In addition, the Supreme Court has recognized that children "have limited understandings of the criminal justice system and the roles of the institutional actors within it" Graham v. Florida, 560 U.S. 48, 78 (2010). Addressing the specific context of police interrogation, the Supreme Court has observed that events that "would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens." Haley v. Ohio, 332 U.S. 596, 599(1948). Finally, it has noted that "no matter how sophisticated, a juvenile subject of police interrogation cannot be compared to an adult subject" J.D.B., 131 S.Ct. at 2403 (internal quotations omitted). In fact, leading professional organizations with expertise about chil- dren agree that attorney consultation is needed during interrogation because of children's developmental limitations. The American Psycholog- ical Association, for example, "recommends that particularly vulnerable suspect populations, including youth, persons with developmental disa- bilities, and persons with mental illness, be provided special and professional protection during interrogations such as being accompanied and advised by an attorney or professional advocate."***** The American Academy on Child and Adolescent Psychiatry similarly believes that youth should have an attorney present during questioning by police and that "when interviewing juvenile suspects, police should use terms and concepts appropriate to the individual's developmental level. Any writ- ten material should also be geared to the person's grade level and cognitive capacity. In general, it is not sufficient to simply read or recite information to a juvenile."****** Unfortunately, the presence of a parent or responsible adult does not adequately ensure that a child makes a knowing, voluntary and intelligent decision with respect to his or her Miranda rights. Parents often have conflicting interests and often misunderstand the proceedings. Because parents may teach their children to respect and cooperate with law enforcement, they may find it difficult to advise a child in custody not to cooperate. Similarly, parents teach their chil- dren to tell the truth; but often a refusal to speak - even when the child believes himself to be "innocent"- is in the youth's legal inter- ests. Parents often find it hard to believe that their child could possibly do whatever the child is accused of and therefore urge the child to speak, not realizing that doing so may well undermine the child's legal interests. Furthermore, when children are arrested, it often occurs in the context of intra-familial disputes, discord, or violence. Resulting conflicts of interest force parents to choose between, on the one hand, giving the child in custody the best advice and, on the other, looking out for the best interests of the other fami- ly member involved, which is often the parent him/herself. All of these issues are compounded when, as is often the case, the parent has been summoned to the police station in the middle of the night, is feeling humiliated, resentful, or even angry with the child, and is unable to muster the kind of dispassionate and reflective thought process neces- sary to best advise the child. Finally, often the parent or responsible adult him/herself doesn't understand the meaning and nature of the rights the youth is being asked to waive. Social science research confirms that the existing parental notification process to protect the rights of youth is inadequate. Research has found that when parents are present during interrogation, they almost always either do not help their children make a decision or actually encourage their children to waive their rights.******* Having a child rely exclusively on the advice of an adult who may have conflicting interests and who likely does not him/herself understand the meaning and nature of the right at stake and the potential consequences of waiving that right undermines the purpose of Family Court Act § 305 2 and Crimi- nal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5). Legal counsel would offer expert, objective advice to young people about their Constitutional right to remain silent and their ability to waive this right and speak to the police. Only with the benefit of such a conflict-free consultation can children make any waiver 'of this bedrock right knowingly,' voluntarily, and intelligently, in keeping with requirements of the state and federal Constitutions. For this reason, youth under 18 years of age facing custodial interrogation must be required to consult with legal counsel to assist in their understanding of their rights and the consequences of waiving those rights prior to waiving their rights under Miranda.   LEGISLATIVE HISTORY: None   FISCAL IMPLICATIONS: Although the provision of counsel for consultation at interrogation will inevitably impose a cost to the state and local jurisdictions, this bill will also provide an important cost-saving benefit. Under current law, juvenile defense attorneys and criminal defense attorney often spend significant amounts of time litigating the legality of their clients' interrogation by law enforcement in what are known as Huntley hearings. These hearings can require several lengthy court appearances, consuming significant resources of defense attorneys, prosecutors, law enforcement witnesses, and judges. If this bill becomes law, it will eliminate the need for a Huntley hearing in the vast majority of cases, significantly reducing the strain on the many agencies and individuals involved.   EFFECTIVE DATE: This act shall take effect April 1, 2022. * Linda B. Chamberlain, The Amazing Teen Brain: What Every Child Advo- cate Needs to Know, 28 A.B.A. CHILD. L. PRAC. No. 2 at 17-18 (April 2009). ** M. Arain et al., Maturation of the Adolescent Brain, 9 NEUROP- SY-CHIATR.DIS.TREAT.449-461(2013),availableat https://www.ncbi.nlm.nih.gov/pmc/articles/ PMC3621648/, citing L. Gavin et al., Sexual and Reproductive Health of persons aged 10-24 years United States, 2002-2007, 58(6) MMWR SURVEILL. SUMM. 1-58 (2009). *** See Goldstein et al., Waving Good-bye to Waiver: A Developmental Argu- ment Against Youths' Waiver of Miranda Rights, Legislation and Public Policy, vol. 21 (2018); Elizabeth Cauffman & Laurence Steinberg, Emerg- ing Findings from Research on Adolescent Development and Juvenile Justice, 7 Victims and Offenders 428, 433 (2012); LaurencSteinberg, Adolescent Development and Juvenile Justice, 5 Ann. Re .Clinical Psychol. 459, 65-71 (2009); Laurence Steinberg, The Science of Adoles- cent Brain Development and Its Implication for Adolescent Rights and Responsibilities, in Human Rights and Adolescence 59, 64 (Jacqueline Bhabha. ed., 2014); Dustin Albert & Laurence Steinberg, Judgment and Decision-Making in Adolescence, 21 J. Res. Adolescence 211(2011); Linda Van Leijenhorst et al., Adolescent Risky Decision-Making: Neurocognitive Development of Reward and Control Regions, 51 Neuroimage 345; 353-54 (2010). Sarah-Jayne Blakemore & Trevor W. Robbins, Decision-Making in the Adoleicent Brain, 15 Nature Neuroscience 1184, 1186 (2012). **** See Goldstein et al., supra. ***** Resolution on Interrogations of Criminal Suspects, Am. Psychol.Ass'n (2014), http://www.apa.org/about/policy/ interrogations.aspx. ****** Interviewing and Interrogating Juvenile Suspects,Am.Acad. Child&AdolescentPsychiatry(Mar.7, 2013), https://www.aacap.org/ aacapipolicy_statements/2013/Intervievving_and_ Interrogating_JuvenileSuspects. aspx. ******* Jodi L. Viljoen et al., Legal Decisions of Preadolescent and Adolescent Defendants: Predictors of Confessions, Pleas, Communication with. Attorneys, and Appeals, 29 Law & Hum. Behay. 253, 261 (2005). Jennifer L Woolard et al., Examining Adolescents' and their Parents' Conceptual & Practical Knowledge of Police Interrogation: A Family Dyad Approach, 37 J. Youth & Adolescence 685, 690-94 (2008).
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A05891 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5891--B
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                      March 1, 2021
                                       ___________
 
        Introduced  by  M. of A. JOYNER, SIMON, DICKENS, CARROLL, AUBRY, BARRON,
          O'DONNELL, DINOWITZ, FORREST -- read once and referred to the  Commit-
          tee  on  Children  and Families -- committee discharged, bill amended,
          ordered reprinted as amended and  recommitted  to  said  committee  --
          reported   and  referred  to  the  Committee  on  Codes  --  committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN ACT to amend the family court act and the criminal procedure law,  in
          relation  to  the custodial interrogation of juveniles by law enforce-
          ment
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1. Subdivision 3 of section 305.2 of the family court act, as
     2  added by chapter 920 of the laws of 1982, is amended to read as follows:
     3    3. If an officer takes such child into custody or if a child is deliv-
     4  ered to him or her under section 305.1, he  or  she  shall  immediately,
     5  before  transporting  the  child to the police station house, notify the
     6  parent or other person legally responsible for the child's care,  or  if
     7  such  legally responsible person is unavailable the person with whom the
     8  child resides, that the child has been taken into custody.
     9    § 2. Paragraph (a) of subdivision 4 of section  305.2  of  the  family
    10  court  act,  as  added by chapter 920 of the laws of 1982, is amended to
    11  read as follows:
    12    (a) when the officer reasonably believes such parent or  other  person
    13  legally  responsible for the child's care will appear, take the child to
    14  his or her home, the station house, or another location agreed upon with
    15  the parent or person legally responsible, and release the child  to  the
    16  custody  of  [his  parents  or  other person legally responsible for his
    17  care] such person upon the issuance in accordance with section 307.1  of
    18  a  family  court  appearance ticket to the child and the person to whose
    19  custody the child is released; or
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03836-08-1

        A. 5891--B                          2
 
     1    § 3. Paragraph (b) of subdivision 4 of section  305.2  of  the  family
     2  court  act,  as  amended  by section 63 of part WWW of chapter 59 of the
     3  laws of 2017, is amended to read as follows:
     4    (b)  when  the officer does not reasonably believe the parent or other
     5  person legally responsible for the child's  care  will  appear  for  the
     6  child,  forthwith and with all reasonable speed take the child directly,
     7  and without his or her first being taken to the police station house, to
     8  the family court located in the county in which the act occasioning  the
     9  taking  into  custody allegedly was committed, or, when the family court
    10  is not in session, to the most accessible magistrate, if any, designated
    11  by the appellate division of the supreme court in the applicable depart-
    12  ment to conduct a hearing under section 307.4 [of this part, unless  the
    13  officer  determines that it is necessary to question the child, in which
    14  case he or she may take the child to a facility designated by the  chief
    15  administrator  of  the courts as a suitable place for the questioning of
    16  children or, upon the consent  of  a  parent  or  other  person  legally
    17  responsible  for  the  care  of  the child, to the child's residence and
    18  there question him or her for a reasonable period of time]; or
    19    § 4. Paragraph (c) of subdivision 4 of section  305.2  of  the  family
    20  court  act,  as amended by section 3 of part G of chapter 58 of the laws
    21  of 2010, is amended to read as follows:
    22    (c) when the officer does not release the child pursuant to  paragraph
    23  (a)  of  this  subdivision,  or  take  the child to family court or to a
    24  magistrate pursuant to paragraph (b) of this subdivision, take the child
    25  to a place certified by the office of children and family services as  a
    26  juvenile detention facility for the reception of children; or
    27    §  5.  Subdivision  5  of  section  305.2  of the family court act, as
    28  amended by chapter 398 of the laws  of  1983,  is  amended  to  read  as
    29  follows:
    30    5.  If  such  child has allegedly committed a designated felony act as
    31  defined in subdivision eight of section 301.2, and the family  court  in
    32  the  county  is  in  session, the officer shall forthwith take the child
    33  directly to such family court or,  when  the  family  court  is  not  in
    34  session,  to  the  most accessible magistrate, if any, designated by the
    35  appellate division of the supreme court in the applicable department  to
    36  conduct  a  hearing  under  section 307.4[, unless the officer takes the
    37  child to a facility for questioning in accordance with paragraph (b)  of
    38  subdivision four. If such child has not allegedly committed a designated
    39  felony act and such family court is in session, the officer shall either
    40  forthwith take the child directly to such family court, unless the offi-
    41  cer  takes  the  child  to a facility for questioning in accordance with
    42  paragraph (b) of subdivision four or release  the  child  in  accordance
    43  with paragraph (a) of subdivision four].
    44    §  6. Subdivision 6 of section 305.2 of the family court act, as added
    45  by chapter 920 of the laws of 1982, is amended to read as follows:
    46    6. [In all other cases] If such child has not  allegedly  committed  a
    47  designated  felony act, and in the absence of special circumstances, the
    48  officer shall release the child in  accordance  with  paragraph  (a)  of
    49  subdivision four.
    50    §  7.  Subdivisions  7 and 8 of section 305.2 of the family court act,
    51  subdivision 7 as amended by chapter 398 of the laws of 1983 and subdivi-
    52  sion 8 as amended by chapter 299 of the laws of 2020, are amended and  a
    53  new subdivision 10 is added to read as follows:
    54    7.   If the officer determines that questioning of the child is neces-
    55  sary prior to taking action authorized by subdivision four or five,  the
    56  officer  may take the child to a facility designated by the chief admin-

        A. 5891--B                          3
 
     1  istrator of the courts as a suitable place for the questioning of  chil-
     2  dren  or, upon the consent of a parent or other person legally responsi-
     3  ble for the care of the child,  to  the  child's  residence  and  there,
     4  subject  to  the  requirements of subdivision eight, question him or her
     5  for a reasonable period of time.
     6    8. A child shall not be questioned pursuant  to  this  section  unless
     7  [he] or until:
     8    (a)  the child and a person required to be notified pursuant to subdi-
     9  vision three if present, have been advised:
    10    [(a)] (i) of the child's right to remain silent;
    11    [(b)] (ii) that the statements made by the child  may  be  used  in  a
    12  court of law;
    13    [(c)]  (iii)  of the child's right to have an attorney present at such
    14  questioning; and
    15    [(d)] (iv) of the child's right to have an attorney provided  for  him
    16  or her without charge if he or she is indigent; and
    17    (b)  the  child  has  consulted with legal counsel in person, by tele-
    18  phone, or by video conference. This consultation may not be waived.
    19    [8.] 9. In determining the suitability of questioning and  determining
    20  the  reasonable period of time for questioning such a child, the child's
    21  age, the presence or absence of his or  her  parents  or  other  persons
    22  legally responsible for his or her care, notification pursuant to subdi-
    23  vision  three  and,  where the child has been interrogated at a facility
    24  designated by the chief administrator of the courts as a suitable  place
    25  for  the  questioning  of  juveniles,  whether  the interrogation was in
    26  compliance with  the  video-recording  and  disclosure  requirements  of
    27  subdivision  five-a  of  this  section  shall be included among relevant
    28  considerations.
    29    10. In addition to statements that must be suppressed as involuntarily
    30  made within the definition in subdivision two of section 344.2, a state-
    31  ment shall be suppressed: when the child has not  consulted  with  legal
    32  counsel  as  required  by  paragraph (b) of subdivision eight; or when a
    33  person notified pursuant to subdivision three, if present, has not  been
    34  advised of and voluntarily waived the rights delineated in paragraph (a)
    35  of subdivision eight.
    36    §  8.  Section  724  of  the family court act, the section heading and
    37  subdivisions (b) and (c) as amended by chapter 843 of the laws of  1980,
    38  subdivision  (a)  as  amended  by chapter 920 of the laws of 1982, para-
    39  graphs (i) and (ii) as amended and paragraph (iv) of subdivision (b)  as
    40  added  by  section  4 of part E of chapter 57 of the laws of 2005, para-
    41  graph (iii) of subdivision (b) as amended by section  7  of  part  M  of
    42  chapter  56 of the laws of 2017, and subdivision (d) as added by chapter
    43  809 of the laws of 1963, is amended to read as follows:
    44    § 724. Duties of police officer or peace  officer  after  taking  into
    45  custody  or  on  delivery by private person. (a) If a peace officer or a
    46  police officer takes into custody or if a person is delivered to him  or
    47  her  under  section  seven hundred twenty-three, the officer shall imme-
    48  diately, before transporting the child to any other location, notify the
    49  parent or other person legally responsible for his or her care,  or  the
    50  person  with  whom he or she is domiciled, that he or she has been taken
    51  into custody.
    52    (b) After making every reasonable effort to give notice  under  [para-
    53  graph] subdivision (a) of this section, the officer shall
    54    (i)  when  the officer reasonably believes such parent or other person
    55  legally responsible for the child's care will appear, take the child  to
    56  his  or  her  home, the police station house, or another location agreed

        A. 5891--B                          4
 
     1  upon with the parent or person  legally  responsible,  and  release  the
     2  youth to the custody of [his or her parent or other] such person [legal-
     3  ly  responsible  for  his or her care] upon the written promise, without
     4  security,  of  the person to whose custody the youth is released that he
     5  or she will produce the youth before the lead agency designated pursuant
     6  to section seven hundred thirty-five of this article in that county at a
     7  time and place specified in writing; or
     8    (ii) when the officer does not reasonably believe such parent or other
     9  person legally responsible for the child's  care  will  appear  for  the
    10  child,  forthwith and with all reasonable speed take the youth directly,
    11  and without first being taken to the police station house, to the desig-
    12  nated lead agency located in the county in which the act occasioning the
    13  taking into custody allegedly was done[, unless the  officer  determines
    14  that  it is necessary to question the youth, in which case he or she may
    15  take the youth to a facility designated by the  chief  administrator  of
    16  the courts as a suitable place for the questioning of youth or, upon the
    17  consent  of a parent or other person legally responsible for the care of
    18  the youth, to the youth's residence and there question him or her for  a
    19  reasonable period of time]; or
    20    (iii)  take a youth in need of crisis intervention or respite services
    21  to a runaway  and  homeless  youth  crisis  services  program  or  other
    22  approved respite or crisis program; or
    23    (iv) take the youth directly to the family court located in the county
    24  in which the act occasioning the taking into custody was allegedly done,
    25  provided that the officer affirms on the record that he or she attempted
    26  to  exercise the options identified in paragraphs (i), (ii) and (iii) of
    27  this subdivision, was unable to exercise these options, and the  reasons
    28  therefor.
    29    (c) In the absence of special circumstances, the officer shall release
    30  the  child in accord with paragraph [(b)] (i) of subdivision (b) of this
    31  section.
    32    (d) If the officer determines that questioning of the child is  neces-
    33  sary  prior  to  taking  action  authorized  by  subdivision (b) of this
    34  section, the officer may take the child to a facility designated by  the
    35  chief  administrator of the courts as a suitable place for the question-
    36  ing of children or, upon the consent of a parent or other person legally
    37  responsible for the care of the child,  to  the  child's  residence  and
    38  there,  subject  to the requirements of subdivision (e) of this section,
    39  question him or her for a reasonable period of time.
    40    (e) In determining the suitability of questioning and determining what
    41  is a "reasonable period of time" for questioning a  child,  the  child's
    42  age [and], the presence or absence of his or her parents or other person
    43  legally  responsible  for  his  or her care and notification pursuant to
    44  subdivision (a) of this section shall be  included  among  the  relevant
    45  considerations.
    46    (f)  No statement made to a peace officer or a police officer prior to
    47  the commencement of a fact-finding hearing may be admitted into evidence
    48  at a fact-finding hearing.
    49    § 9. Subdivision 6 of section 140.20 of the criminal procedure law, as
    50  amended by section 20 of part WWW of chapter 59 of the laws of 2017,  is
    51  amended to read as follows:
    52    6.  (a)  Upon  arresting  a  juvenile  offender or a person sixteen or
    53  [commencing October first, two thousand nineteen,]  seventeen  years  of
    54  age  without  a  warrant,  the  police officer shall immediately, before
    55  transporting the child to the police station house, notify the parent or
    56  other person legally responsible for his or her care or the person  with

        A. 5891--B                          5
 
     1  whom  he  or  she  is domiciled, that such juvenile offender or [person]
     2  sixteen or seventeen year old has been arrested, and the location of the
     3  facility where he or she [is being] will be detained.
     4    (b) If the officer determines that it is necessary to question a juve-
     5  nile  offender or [such person] sixteen or seventeen year old, the offi-
     6  cer must take him or her to a facility designated by the chief  adminis-
     7  trator of the courts as a suitable place for the questioning of children
     8  or, upon the consent of a parent or other person legally responsible for
     9  the care of the juvenile or [such person] sixteen or seventeen year old,
    10  to  his or her residence and there, subject to the requirements of para-
    11  graph (c) of this subdivision, question him  or  her  for  a  reasonable
    12  period of time.
    13    (c) A juvenile offender or [such person] sixteen or seventeen year old
    14  shall not be questioned pursuant to this section unless or until:
    15    (i)  he  or she and a person required to be notified pursuant to para-
    16  graph (a) of this subdivision, if present, have been advised:
    17    [(a)] (A) of the juvenile offender's or  [such  person's]  sixteen  or
    18  seventeen year old's right to remain silent;
    19    [(b)]  (B)  that  the  statements  made by him or her may be used in a
    20  court of law;
    21    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    22  questioning; and
    23    [(d)]  (D) of his or her right to have an attorney provided for him or
    24  her without charge if he or she is unable to afford counsel[.];
    25    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
    26  consulted  with an attorney in person, by telephone, or by video confer-
    27  ence. This consultation may not be waived.
    28    (d) In determining the suitability of questioning and determining  the
    29  reasonable  period  of  time for questioning such a juvenile offender or
    30  [person] sixteen or seventeen year old, his or her age, the presence  or
    31  absence  of  his or her parents or other persons legally responsible for
    32  his or her care and notification  pursuant  to  paragraph  (a)  of  this
    33  subdivision shall be included among relevant considerations.
    34    (e) In addition to statements that must be suppressed as involuntarily
    35  made  within  the definition in subdivision two of section 60.45 of this
    36  chapter, a statement  shall  be  suppressed:  when  the  child  has  not
    37  consulted with an attorney as required by paragraph (c) of this subdivi-
    38  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    39  vision,  if  present, has not been advised of and voluntarily waived the
    40  rights delineated in paragraph (c) of this subdivision.
    41    § 10. Subdivision 5 of section 140.27 of the criminal  procedure  law,
    42  as  amended by section 23 of part WWW of chapter 59 of the laws of 2017,
    43  is amended to read as follows:
    44    5. (a) Upon arresting a juvenile  offender  or  a  person  sixteen  or
    45  [commencing  October  first,  two thousand nineteen,] seventeen years of
    46  age without a warrant,  the  peace  officer  shall  immediately,  before
    47  transporting the child to the police station house, notify the parent or
    48  other  person legally responsible for his or her care or the person with
    49  whom he or she is domiciled, that such  juvenile  offender  or  [person]
    50  sixteen or seventeen year old has been arrested, and the location of the
    51  facility where he or she [is being] will be detained.
    52    (b) If the officer determines that it is necessary to question a juve-
    53  nile  offender or [such person] sixteen or seventeen year old, the offi-
    54  cer must take him or her to a facility designated by the chief  adminis-
    55  trator of the courts as a suitable place for the questioning of children
    56  or, upon the consent of a parent or other person legally responsible for

        A. 5891--B                          6
 
     1  the  care  of  a juvenile offender or [such person] sixteen or seventeen
     2  year old, to his or her residence and there, subject to the requirements
     3  of paragraph (c) of this subdivision, question him or her for a  reason-
     4  able period of time.
     5    (c) A juvenile offender or [such person] sixteen or seventeen year old
     6  shall not be questioned pursuant to this section unless or until:
     7    (i)  the  juvenile offender or [such person] sixteen or seventeen year
     8  old and a person required to be notified pursuant to  paragraph  (a)  of
     9  this subdivision, if present, have been advised:
    10    [(a)] (A) of his or her right to remain silent;
    11    [(b)]  (B)  that the statements made by the juvenile offender or [such
    12  person] sixteen or seventeen year old may be used in a court of law;
    13    [(c)] (C) of his or her right to have  an  attorney  present  at  such
    14  questioning; and
    15    [(d)]  (D) of his or her right to have an attorney provided for him or
    16  her without charge if he or she is unable to afford counsel[.]; and
    17    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
    18  consulted  with  an attorney in person, by telephone or by video confer-
    19  ence. This consultation may not be waived.
    20    (d) In determining the suitability of questioning and determining  the
    21  reasonable  period  of  time for questioning such a juvenile offender or
    22  [such person] sixteen or seventeen year old his or her age, the presence
    23  or absence of his or her parents or other  persons  legally  responsible
    24  for  his  or her care and notification pursuant to paragraph (a) of this
    25  subdivision shall be included among relevant considerations.
    26    (e) In addition to statements that must be suppressed as involuntarily
    27  made within the definition in subdivision two of section 60.45  of  this
    28  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    29  consulted with an attorney as required by paragraph (c) of this subdivi-
    30  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    31  vision, if present, has not been advised of and voluntarily  waived  the
    32  rights delineated in paragraph (c) of this subdivision.
    33    §  11.  Subdivision 5 of section 140.40 of the criminal procedure law,
    34  as amended by section 24 of part WWW of chapter 59 of the laws of  2017,
    35  is amended to read as follows:
    36    5.  (a)  If  a police officer takes an arrested juvenile offender or a
    37  person sixteen or [commencing October  first,  two  thousand  nineteen,]
    38  seventeen years of age into custody, the police officer shall immediate-
    39  ly, before transporting the child to the police station house notify the
    40  parent  or  other  person legally responsible for his or her care or the
    41  person with whom he or she is domiciled, that such juvenile offender  or
    42  [person]  sixteen  or  seventeen  year  old  has  been arrested, and the
    43  location of the facility where he or she [is being] will be detained.
    44    (b) If the officer determines that it is necessary to question a juve-
    45  nile offender or [such person] sixteen or seventeen year old the officer
    46  must take him or her to a facility designated by the chief administrator
    47  of the courts as a suitable place for the questioning  of  children  or,
    48  upon the consent of a parent or other person legally responsible for the
    49  care of the juvenile offender or [such person] sixteen or seventeen year
    50  old,  to  his or her residence and there, subject to the requirements of
    51  paragraph (c) of this subdivision, question him or her for a  reasonable
    52  period of time.
    53    (c) A juvenile offender or [such person] sixteen or seventeen year old
    54  shall not be questioned pursuant to this section unless or until:
    55    (i)  he  or she and a person required to be notified pursuant to para-
    56  graph (a) of this subdivision, if present, have been advised:

        A. 5891--B                          7
 
     1    [(a)] (A) of his or her right to remain silent;
     2    [(b)]  (B)  that the statements made by the juvenile offender or [such
     3  person] sixteen or seventeen year old may be used in a court of law;
     4    [(c)] (C) of his or her right to have  an  attorney  present  at  such
     5  questioning; and
     6    [(d)]  (D) of his or her right to have an attorney provided for him or
     7  her without charge if he or she is unable to afford counsel[.]; and
     8    (ii) the juvenile offender  or  sixteen  or  seventeen  year  old  has
     9  consulted  with an attorney in person, by telephone, or by video confer-
    10  ence. This consultation may not be waived.
    11    (d) In determining the suitability of questioning and determining  the
    12  reasonable  period  of  time for questioning such a juvenile offender or
    13  [such person] sixteen or seventeen year old, his or her age,  the  pres-
    14  ence or absence of his or her parents or other persons legally responsi-
    15  ble  for  his  or her care and notification pursuant to paragraph (a) of
    16  this subdivision shall be included among relevant considerations.
    17    (e) In addition to statements that must be suppressed as involuntarily
    18  made within the definition in subdivision two of section 60.45  of  this
    19  chapter,  a  statement  shall  be  suppressed:  when  the  child has not
    20  consulted with an attorney as required by paragraph (c) of this subdivi-
    21  sion; or when a person notified pursuant to paragraph (a) of this subdi-
    22  vision, if present, has not been advised of and voluntarily  waived  the
    23  rights delineated in paragraph (c) of this subdivision.
    24    §  12.  This  act  shall take effect April 1, 2022; provided, however,
    25  that if chapter 299 of the laws of 2020 shall not have taken  effect  on
    26  or  before  such  date  then  the amendments to subdivision 8 of section
    27  305.2 of the family court act made by section seven of  this  act  shall
    28  take  effect  on the same date and in the same manner as such chapter of
    29  the laws of 2020 takes effect.
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