N.Y. CPL Law § 722.23 — New York Code / Act CPL / Part 3 / Title U / Article 722 / Section 722.23
Removal of adolescent offenders to family court
Status: in_force

§ 722.23 Removal of adolescent offenders to family court.\n  1. (a) Following the arraignment of a defendant charged with a crime\ncommitted when he or she was sixteen, or commencing October first, two\nthousand nineteen, seventeen years of age, other than any class A felony\nexcept for those defined in article two hundred twenty of the penal law,\na violent felony defined in section 70.02 of the penal law or a felony\nlisted in paragraph one or two of subdivision forty-two of section 1.20\nof this chapter, or an offense set forth in the vehicle and traffic law,\nthe court shall order the removal of the action to the family court in\naccordance with the applicable provisions of article seven hundred\ntwenty-five of this title unless, within thirty calendar days of such\narraignment, the district attorney makes a motion to prevent removal of\nthe action pursuant to this subdivision. If the defendant fails to\nreport to the probation department as directed, the thirty day time\nperiod shall be tolled until such time as he or she reports to the\nprobation department.\n  (b) A motion to prevent removal of an action in youth part shall be\nmade in writing and upon prompt notice to the defendant. The motion\nshall contain allegations of sworn fact based upon personal knowledge of\nthe affiant, and shall indicate if the district attorney is requesting a\nhearing. The motion shall be noticed to be heard promptly.\n  (c) The defendant shall be given an opportunity to reply. The\ndefendant shall be granted any reasonable request for a delay. Either\nparty may request a hearing on the facts alleged in the motion to\nprevent removal of the action. The hearing shall be held expeditiously.\n  (d) The court shall deny the motion to prevent removal of the action\nin youth part unless the court makes a determination upon such motion by\nthe district attorney that extraordinary circumstances exist that should\nprevent the transfer of the action to family court.\n  (e) The court shall make a determination in writing or on the record\nwithin five days of the conclusion of the hearing or submission by the\ndefense, whichever is later. Such determination shall include findings\nof fact and to the extent practicable conclusions of law.\n  (f) For the purposes of this section, there shall be a presumption\nagainst custody and case planning services shall be made available to\nthe defendant.\n  (g) Notwithstanding any other provision of law, section 308.1 of the\nfamily court act shall apply to all actions transferred pursuant to this\nsection provided, however, such cases shall not be considered removals\nsubject to subdivision thirteen of such section 308.1.\n  (h) Nothing in this subdivision shall preclude, and a court may order,\nthe removal of an action to family court where all parties agree or\npursuant to this chapter.\n  2. (a) Upon the arraignment of a defendant charged with a crime\ncommitted when he or she was sixteen or, commencing October first, two\nthousand nineteen, seventeen years of age on a class A felony, other\nthan those defined in article 220 of the penal law, or a violent felony\ndefined in section 70.02 of the penal law, the court shall schedule an\nappearance no later than six calendar days from such arraignment for the\npurpose of reviewing the accusatory instrument pursuant to this\nsubdivision. The court shall notify the district attorney and defendant\nregarding the purpose of such appearance.\n  (b) Upon such appearance, the court shall review the accusatory\ninstrument and any other relevant facts for the purpose of making a\ndetermination pursuant to paragraph (c) of this subdivision. Both\nparties may be heard and submit information relevant to the\ndetermination.\n  (c) The court shall order the action to proceed in accordance with\nsubdivision one of this section unless, after reviewing the papers and\nhearing from the parties, the court determines in writing that the\ndistrict attorney proved by a preponderance of the evidence one or more\nof the following as set forth in the accusatory instrument:\n  (i) the defendant caused significant physical injury to a person other\nthan a participant in the offense; or\n  (ii) the defendant displayed a firearm, shotgun, rifle or deadly\nweapon as defined in the penal law in furtherance of such offense; or\n  (iii) the defendant unlawfully engaged in vaginal sexual contact, oral\nsexual contact, anal sexual contact, or sexual contact as defined in\nsection 130.00 of the penal law.\n  (d) Where the court makes a determination that the action shall not\nproceed in accordance with subdivision one of this section, such\ndetermination shall be made in writing or on the record and shall\ninclude findings of fact and to the extent practicable conclusions of\nlaw.\n  (e) Nothing in this subdivision shall preclude, and the court may\norder, the removal of an action to family court where all parties agree\nor pursuant to this chapter.\n  3. Notwithstanding the provisions of any other law, if at any time one\nor more charges in the accusatory instrument are reduced, such that the\nelements of the highest remaining charge would be removable pursuant to\nsubdivisions one or two of this section, then the court, sua sponte or\nin response to a motion pursuant to subdivisions one or two of this\nsection by the defendant, shall promptly notify the parties and direct\nthat the matter proceed in accordance with subdivision one of this\nsection, provided, however, that in such instance, the district attorney\nmust file any motion to prevent removal within thirty days of effecting\nor receiving notice of such reduction.\n  4. A defendant may waive review of the accusatory instrument by the\ncourt and the opportunity for removal in accordance with this section,\nprovided that such waiver is made by the defendant knowingly,\nvoluntarily and in open court, in the presence of and with the approval\nof his or her counsel and the court. An earlier waiver shall not\nconstitute a waiver of review and the opportunity for removal under this\nsection.\n