Friday, March 13, 2015

Arrested for a crime in NYS before age 19, am I a JD, JO,YO or an adult?

Generally those less than 16 years old are not criminally responsible for conduct (PL§ 30.00(1). Except for Juvenile Offenders (JO) all youths under the age of 16 are adjudicated exclusively in Family Court where they are prosecuted as Juvenile Delinquents. Fam Ct Act art 3. There are exceptions to every rule of course, this is NYS. JOs can be charged with committing serious felonies as young as age 13. See, PL § 70.05.
First some definitions. Juvenile Delinquent (JD): persons over 7 less than 16 alleged to have committed a crime if an adult, are not criminally responsible by reason of infancy (Family Court Act § 301.2(1). Juvenile Offender (JO): persons 13, 14, or 15 are criminally responsible for acts constituting Murder 2d (intentional not felony murder); persons 14 or 15 are criminally responsible for a listing of serious felonies (PL§ 10.00(18) and CPL§ 1.20(42). Youthful Offender (YO): persons 16, 17, or 18 (less than 19 birth dates are important) or a youth charged as a JO whose conviction of the crime based upon a determination of the court is vacated and replaced with YO finding (CPL§ 720.10 (1) and (2), 720.35(3)).
The age at the time of commission is controlling for each determination. Family Court Act §302(1), CPL §1.20(42), 720.10(1).
Proceedings for JO are governed by CPL §180.75 et al., and mirror those for an adult CPL §180.10., 180.60, 180.80, but allow for possible Removal to Family Court under CPL §175.4 &5. With certain exceptions, a local court SHALL at the request of the DA order removal to Family Court. CPL §175.4. The defendant child, may while the matter is pending in local court, move in superior court to remove the case. Procedures for such a determination by the superior court are governed pursuant to CPL §180.75(6)(a)&(b). If transferred, the case is thereafter treated as a juvenile delinquency matter. If not transferred the JO is tried in adult criminal court, convictions result in adult penalties and an adult criminal record, unless granted YO status.  
Proceedings for YO are governed by CPL §720.10 - 720.35. The YO determination is mandatory for first offense misdemeanor charges for 16, 17 or 18 (less than 19) with NO prior convictions and No prior YO determination. YO determinations are discretionary by the court for 16, 17 or 18 (less than 19) with NO prior felony, NO prior felony YO, NO prior JD plus a finding in the interest of justice. CPL §720.20(1)(a). Some youths are not eligible if convicted for A-I or A-II felonies, or an armed felony under PL §1.20(41), or Rape 1st, CSA 1st, Agg. SA, or any youth previously convicted and sentenced for a felony, any youth with a prior YO adjudication for a felony. CPL §720.10(2)
A YO adjudication is comprised of a YO Finding (CPL §720.10(4) and a YO sentence (CPL §720.10(5) and is completed by the imposition and entry of the YO sentence. CPL §720.10(6). Absent statutory elimination, all eligible defendants are entitled to an independent determination of whether to grant youthful offender status which lies in the discretion that must be made by of the sentencing court. CPL§ 720.20 [1] [a]. See, People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497]. Such a determination is independent and cannot to be sacrificed in plea bargaining extended or limited by the DA.
YO privacy of proceedings is governed by CPL§ 720.15(2) providing arraignment and all proceedings in the discretion of the court and with the defendant’s consent must be conducted in private. Such privacy only applies to misdemeanors not felony offenses or complaints. CPL §720.15(3). 
Currently, New York and North Carolina are the only two states that prosecute youths over age 16 as adults. The way 16 and 17 year-olds are treated in the state court system could be overhauled if the state Legislature adopts changes to the juvenile justice system proposed by Gov. Andrew M. Cuomo. Under Gov. Cuomo’s proposed legislation, the age of criminal responsibility will rise to 18, with most criminal cases involving 16- and 17-year-olds being referred to Family Court for adjudication rather than adult courts. One effect of this change is that youths under the age of 18 no longer will be held at county jails while awaiting disposition of their cases and in most circumstances, absent a violent felony, will not face jail or a prison sentence, and not suffer a criminal conviction. A report prepared at the Governor’s request by the Commission on Youth, Public Safety and Justice states that, although state law requires 16 and 17 year olds to be housed apart from adult inmates, youths still come in contact with older inmates in common areas, placing them at risk of physical injury or sexual abuse. Raise the Age/NY (see, lists the consequences of NYS’s obsession with continuing to prosecute children in adult courts. A reform group called Correctional Association claims more than eight hundred 16 & 17 year olds are being held in adult jails and prisons across NY. They report these youths suffer increased sexual and physical abuse and higher risks of suicide compared with teens in juvenile facilities. 
Importing this information within an application for independent determination by the sentencing court under People v Rudolph, 2013 NY Slip Op 04840 [21 NY3d 497] may yield more favorable dispositions from independent courts, blunting the injurious impact on our young clients, and changing a plea bargaining system governed solely by the discretion of the prosecution.  
Good Hunting. 

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