N.Y. FCT Law § 353.5 — New York Code / Act FCT / Article 3 / Part 5 / Section 353.5
Designated felony acts; restrictive placement
Status: in_force

§ 353.5. Designated felony acts; restrictive placement. 1. Where the\nrespondent is found to have committed a designated felony act, the order\nof disposition shall be made within twenty days of the conclusion of the\ndispositional hearing and shall include a finding based on a\npreponderance of the evidence as to whether, for the purposes of this\narticle, the respondent does or does not require a restrictive placement\nunder this section, in connection with which the court shall make\nspecific written findings of fact as to each of the elements set forth\nin paragraphs (a) through (e) in subdivision two as related to the\nparticular respondent. If the court finds that a restrictive placement\nunder this section is not required, the court shall enter any other\norder of disposition provided in section 352.2. If the court finds that\na restrictive placement is required, it shall continue the proceeding\nand enter an order of disposition for a restrictive placement. Every\norder under this section shall be a dispositional order, shall be made\nafter a dispositional hearing and shall state the grounds for the order.\n  2. In determining whether a restrictive placement is required, the\ncourt shall consider:\n  (a) the needs and best interests of the respondent;\n  (b) the record and background of the respondent, including but not\nlimited to information disclosed in the probation investigation and\ndiagnostic assessment;\n  (c) the nature and circumstances of the offense, including whether any\ninjury was inflicted by the respondent or another participant;\n  (d) the need for protection of the community; and\n  (e) the age and physical condition of the victim.\n  3. Notwithstanding the provisions of subdivision two, the court shall\norder a restrictive placement in any case where the respondent is found\nto have committed a designated felony act in which the respondent\ninflicted serious physical injury, as that term is defined in\nsubdivision ten of section 10.00 of the penal law, upon another person\nwho is sixty-two years of age or more.\n  * 4. When the order is for a restrictive placement in the case of a\nyouth found to have committed a designated class A felony act,\n  (a) the order shall provide that:\n  (i) the respondent shall be placed with the office of children and\nfamily services for an initial period of five years. If the respondent\nhas been in detention pending disposition, the initial period of\nplacement ordered under this section shall be credited with and\ndiminished by the amount of time spent by the respondent in detention\nprior to the commencement of the placement unless the court finds that\nall or part of such credit would not serve the needs and best interests\nof the respondent or the need for protection of the community.\n  (ii) the respondent shall initially be confined in a secure facility\nfor a period set by the order, to be not less than twelve nor more than\neighteen months provided, however, where the order of the court is made\nin compliance with subdivision five of this section, the respondent\nshall initially be confined in a secure facility for eighteen months.\n  (iii) after the period set under subparagraph (ii) of this paragraph,\nthe respondent shall be placed in a residential facility for a period of\ntwelve months; provided, however, that if the respondent has been placed\nfrom a family court in a social services district operating an approved\njuvenile justice services close to home initiative pursuant to section\nfour hundred four of the social services law for an act committed when\nthe respondent was under sixteen years of age, once the time frames in\nsubparagraph (ii) of this paragraph are met:\n  (A) beginning on the effective date of such a social services\ndistrict's plan that only covers juvenile delinquents placed in\nnon-secure settings, if the office of children and family services\nconcludes, based on the needs and best interests of the respondent and\nthe need for protection for the community, that a non-secure level of\ncare is appropriate for the respondent, such office shall file a\npetition pursuant to paragraph (b) or (c) of subdivision two of section\n355.1 of this part to have the respondent placed with the applicable\nlocal commissioner of social services; and\n  (B) beginning on the effective date of such a social services\ndistrict's plan that covers juvenile delinquents placed in limited\nsecure settings, if the office of children and family services\nconcludes, based on the needs and best interests of the respondent and\nthe need for protection for the community, that a non-secure or limited\nsecure level of care is appropriate for the respondent, such office\nshall file a petition pursuant to paragraph (b) or (c) of subdivision\ntwo of section 355.1 of this part to have the respondent placed with the\napplicable local commissioner of social services.\n  (C) If the respondent is placed with the local commissioner of social\nservices in accordance with clause (A) or (B) of this subparagraph, the\nremainder of the provisions of this section shall continue to apply to\nthe respondent's placement.\n  (iv) the respondent may not be released from a secure facility or\ntransferred to a facility other than a secure facility during the period\nprovided in subparagraph (ii) of this paragraph, nor may the respondent\nbe released from a residential facility during the period provided in\nsubparagraph (iii) of this paragraph. No home visits shall be permitted\nduring the period of secure confinement set by the court order or one\nyear, whichever is less, except for emergency visits for medical\ntreatment or severe illness or death in the family. All home visits must\nbe accompanied home visits: (A) while a youth is confined in a secure\nfacility, whether such confinement is pursuant to a court order or\notherwise; (B) while a youth is confined in a residential facility other\nthan a secure facility within six months after confinement in a secure\nfacility; and (C) while a youth is confined in a residential facility\nother than a secure facility in excess of six months after confinement\nin a secure facility unless two accompanied home visits have already\noccurred. An "accompanied home visit" shall mean a home visit during\nwhich the youth shall be accompanied at all times while outside the\nsecure or residential facility by appropriate personnel of the office of\nchildren and family services or, if applicable, a local social services\ndistrict which operates an approved juvenile justice services close to\nhome initiative pursuant to section four hundred four of the social\nservices law.\n  (b) Notwithstanding any other provision of law, during the first\ntwelve months of the respondent's placement, no motion, hearing or order\nmay be made, held or granted pursuant to section 355.1; provided,\nhowever, that during such period a motion to vacate the order may be\nmade pursuant to such section, but only upon grounds set forth in\nsection 440.10 of the criminal procedure law.\n  (c) During the placement or any extension thereof:\n  (i) after the expiration of the period provided in subparagraph (iii)\nof paragraph (a) of this subdivision, the respondent shall not be\nreleased from a residential facility without the written approval of the\noffice of children and family services or, if applicable, a social\nservices district operating an approved juvenile justice services close\nto home initiative pursuant to section four hundred four of the social\nservices law.\n  (ii) the respondent shall be subject to intensive supervision whenever\nnot in a secure or residential facility.\n  (iii) the respondent shall not be discharged from the custody of the\noffice of children and family services or, if applicable, a social\nservices district operating an approved juvenile justice services close\nto home initiative pursuant to section four hundred four of the social\nservices law, unless a motion therefor under section 355.1 is granted by\nthe court, which motion shall not be made prior to the expiration of\nthree years of the placement.\n  (iv) unless otherwise specified in the order, the office of children\nand family services or, if applicable, a social services district\noperating an approved juvenile justice services close to home initiative\npursuant to section four hundred four of the social services law shall\nreport in writing to the court not less than once every six months\nduring the placement on the status, adjustment and progress of the\nrespondent.\n  (d) Upon the expiration of the initial period of placement, or any\nextension thereof, the placement may be extended in accordance with\nsection 355.3 on a petition of any party or the office of children and\nfamily services, or, if applicable, a social services district operating\nan approved juvenile justice services close to home initiative pursuant\nto section four hundred four of the social services law, after a\ndispositional hearing, for an additional period not to exceed twelve\nmonths, but no initial placement or extension of placement under this\nsection may continue beyond the respondent's twenty-first birthday, or,\nfor an act that was committed when the respondent was sixteen years of\nage or older, the respondent's twenty-third birthday.\n  (e) The court may also make an order pursuant to subdivision two of\nsection 353.4.\n  * NB Effective until March 31, 2028\n  * 4. When the order is for a restrictive placement in the case of a\nyouth found to have committed a designated class A felony act,\n  (a) the order shall provide that:\n  (i) the respondent shall be placed with the division for youth for an\ninitial period of five years. If the respondent has been in detention\npending disposition, the initial period of placement ordered under this\nsection shall be credited with and diminished by the amount of time\nspent by the respondent in detention prior to the commencement of the\nplacement unless the court finds that all or part of such credit would\nnot serve the needs and best interests of the respondent or the need for\nprotection of the community.\n  (ii) the respondent shall initially be confined in a secure facility\nfor a period set by the order, to be not less than twelve nor more than\neighteen months provided, however, where the order of the court is made\nin compliance with subdivision five the respondent shall initially be\nconfined in a secure facility for eighteen months.\n  (iii) after the period set under clause (ii), the respondent shall be\nplaced in a residential facility for a period of twelve months.\n  (iv) the respondent may not be released from a secure facility or\ntransferred to a facility other than a secure facility during the period\nprovided in clause (ii) of this paragraph, nor may the respondent be\nreleased from a residential facility during the period provided in\nclause (iii). No home visits shall be permitted during the period of\nsecure confinement set by the court order or one year, whichever is\nless, except for emergency visits for medical treatment or severe\nillness or death in the family. All home visits must be accompanied home\nvisits: (A) while a youth is confined in a secure facility, whether such\nconfinement is pursuant to a court order or otherwise; (B) while a youth\nis confined in a residential facility other than a secure facility\nwithin six months after confinement in a secure facility; and (C) while\na youth is confined in a residential facility other than a secure\nfacility in excess of six months after confinement in a secure facility\nunless two accompanied home visits have already occurred. An\n"accompanied home visit" shall mean a home visit during which the youth\nshall be accompanied at all times while outside the secure or\nresidential facility by appropriate personnel of the division for youth\ndesignated pursuant to regulations of the director of the division.\n  (b) Notwithstanding any other provision of law, during the first\ntwelve months of the respondent's placement, no motion, hearing or order\nmay be made, held or granted pursuant to section 355.1; provided,\nhowever, that during such period a motion to vacate the order may be\nmade pursuant to 355.1, but only upon grounds set forth in section\n440.10 of the criminal procedure law.\n  (c) During the placement or any extension thereof:\n  (i) after the expiration of the period provided in clause (iii) of\nparagraph (a), the respondent shall not be released from a residential\nfacility without the written approval of the director of the division\nfor youth or his designated deputy director.\n  (ii) the respondent shall be subject to intensive supervision whenever\nnot in a secure or residential facility.\n  (iii) the respondent shall not be discharged from the custody of the\ndivision for youth, unless a motion therefor under section 355.1 is\ngranted by the court, which motion shall not be made prior to the\nexpiration of three years of the placement.\n  (iv) unless otherwise specified in the order, the division shall\nreport in writing to the court not less than once every six months\nduring the placement on the status, adjustment and progress of the\nrespondent.\n  (d) Upon the expiration of the initial period of placement, or any\nextension thereof, the placement may be extended in accordance with\nsection 355.3 on a petition of any party or the office of children and\nfamily services after a dispositional hearing, for an additional period\nnot to exceed twelve months, but no initial placement or extension of\nplacement under this section may continue beyond the respondent's\ntwenty-first birthday, or, for an act that was committed when the\nrespondent was sixteen years of age or older, the respondent's\ntwenty-third birthday.\n  (e) The court may also make an order pursuant to subdivision two of\nsection 353.4.\n  * NB Effective March 31, 2028\n  * 5. When the order is for a restrictive placement in the case of a\nyouth found to have committed a designated felony act, other than a\ndesignated class A felony act,\n  (a) the order shall provide that:\n  (i) the respondent shall be placed with the office of children and\nfamily services for an initial period of three years. If the respondent\nhas been in detention pending disposition, the initial period of\nplacement ordered under this section shall be credited with and\ndiminished by the amount of time spent by the respondent in detention\nprior to the commencement of the placement unless the court finds that\nall or part of such credit would not serve the needs and best interests\nof the respondent or the need for protection of the community.\n  (ii) the respondent shall initially be confined in a secure facility\nfor a period set by the order, to be not less than six nor more than\ntwelve months.\n  (iii) after the period set under subparagraph (ii) of this paragraph,\nthe respondent shall be placed in a residential facility for a period\nset by the order, to be not less than six nor more than twelve months;\nprovided, however, that if the respondent has been placed from a family\ncourt in a social services district operating an approved juvenile\njustice services close to home initiative pursuant to section four\nhundred four of the social services law, once the time frames in\nsubparagraph (ii) of this paragraph are met:\n  (A) beginning on the effective date of such a social services\ndistrict's plan that only covers juvenile delinquents placed in\nnon-secure settings, if the office of children and family services\nconcludes, based on the needs and best interests of the respondent and\nthe need for protection for the community, that a non-secure level of\ncare is appropriate for the respondent, such office shall file a\npetition pursuant to paragraph (b) or (c) of subdivision two of section\n355.1 of this part to have the respondent placed with the applicable\nlocal commissioner of social services; and\n  (B) beginning on the effective date of such a social services\ndistrict's plan to implement programs for youth placed in limited secure\nsettings, if the office of children and family services concludes, based\non the needs and best interests of the respondent and the need for\nprotection for the community, that a non-secure or limited secure level\nof care is appropriate for the respondent, such office shall file a\npetition pursuant to paragraph (b) or (c) of subdivision two of section\n355.1 of this part to have the respondent placed with the applicable\nlocal commissioner of social services.\n  (C) If the respondent is placed with a local commissioner of social\nservices in accordance with clause (A) or (B) of this subparagraph, the\nremainder of the provisions of this section shall continue to apply to\nthe respondent's placement.\n  (iv) the respondent may not be released from a secure facility or\ntransferred to a facility other than a secure facility during the period\nprovided by the court pursuant to subparagraph (ii) of this paragraph,\nnor may the respondent be released from a residential facility during\nthe period provided by the court pursuant to subparagraph (iii) of this\nparagraph. No home visits shall be permitted during the period of secure\nconfinement set by the court order or one year, whichever is less,\nexcept for emergency visits for medical treatment or severe illness or\ndeath in the family. All home visits must be accompanied home visits:\n(A) while a youth is confined in a secure facility, whether such\nconfinement is pursuant to a court order or otherwise; (B) while a youth\nis confined in a residential facility other than a secure facility\nwithin six months after confinement in a secure facility; and (C) while\na youth is confined in a residential facility other than a secure\nfacility in excess of six months after confinement in a secure facility\nunless two accompanied home visits have already occurred. An\n"accompanied home visit" shall mean a home visit during which the youth\nshall be accompanied at all times while outside the secure or\nresidential facility by appropriate personnel of the office of children\nand family services or, if applicable, a social services district\noperating an approved juvenile justice close to home initiative pursuant\nto section four hundred four of the social services law.\n  (b) Notwithstanding any other provision of law, during the first six\nmonths of the respondent's placement, no motion, hearing or order may be\nmade, held or granted pursuant to section 355.1; provided, however, that\nduring such period a motion to vacate the order may be made pursuant to\nsuch section, but only upon grounds set forth in section 440.10 of the\ncriminal procedure law.\n  (c) During the placement or any extension thereof:\n  (i) after the expiration of the period provided in subparagraph (iii)\nof paragraph (a) of this subdivision, the respondent shall not be\nreleased from a residential facility without the written approval of the\noffice of children and family services or, if applicable, a social\nservices district operating an approved juvenile justice services close\nto home initiative pursuant to section four hundred four of the social\nservices law.\n  (ii) the respondent shall be subject to intensive supervision whenever\nnot in a secure or residential facility.\n  (iii) the respondent shall not be discharged from the custody of the\noffice of children and family services, or, if applicable, a social\nservices district operating an approved juvenile justice services close\nto home initiative pursuant to section four hundred four of the social\nservices law.\n  (iv) unless otherwise specified in the order, the office of children\nand family services or, if applicable, a social services district\noperating an approved juvenile justice services close to home initiative\npursuant to section four hundred four of the social services law, shall\nreport in writing to the court not less than once every six months\nduring the placement on the status, adjustment and progress of the\nrespondent.\n  (d) Upon the expiration of the initial period of placement or any\nextension thereof, the placement may be extended in accordance with\nsection 355.3 upon petition of any party or the office of children and\nfamily services or, if applicable, a social services district operating\nan approved juvenile justice services close to home initiative pursuant\nto section four hundred four of the social services law, after a\ndispositional hearing, for an additional period not to exceed twelve\nmonths, but no initial placement or extension of placement under this\nsection may continue beyond the respondent's twenty-first birthday.\n  (e) The court may also make an order pursuant to subdivision two of\nsection 353.4.\n  * NB Effective until March 31, 2028\n  * 5. When the order is for a restrictive placement in the case of a\nyouth found to have committed a designated felony act, other than a\ndesignated class A felony act,\n  (a) the order shall provide that:\n  (i) the respondent shall be placed with the division for youth for an\ninitial period of three years. If the respondent has been in detention\npending disposition, the initial period of placement ordered under this\nsection shall be credited with and diminished by the amount of time\nspent by the respondent in detention prior to the commencement of the\nplacement unless the court finds that all or part of such credit would\nnot serve the needs and best interests of the respondent or the need for\nprotection of the community.\n  (ii) the respondent shall initially be confined in a secure facility\nfor a period set by the order, to be not less than six nor more than\ntwelve months.\n  (iii) after the period set under clause (ii), the respondent shall be\nplaced in a residential facility for a period set by the order, to be\nnot less than six nor more than twelve months.\n  (iv) the respondent may not be released from a secure facility or\ntransferred to a facility other than a secure facility during the period\nprovided by the court pursuant to clause (ii), nor may the respondent be\nreleased from a residential facility during the period provided by the\ncourt pursuant to clause (iii). No home visits shall be permitted during\nthe period of secure confinement set by the court order or one year,\nwhichever is less, except for emergency visits for medical treatment or\nsevere illness or death in the family. All home visits must be\naccompanied home visits: (A) while a youth is confined in a secure\nfacility, whether such confinement is pursuant to a court order or\notherwise; (B) while a youth is confined in a residential facility other\nthan a secure facility within six months after confinement in a secure\nfacility; and (C) while a youth is confined in a residential facility\nother than a secure facility in excess of six months after confinement\nin a secure facility unless two accompanied home visits have already\noccurred. An "accompanied home visit" shall mean a home visit during\nwhich the youth shall be accompanied at all times while outside the\nsecure or residential facility by appropriate personnel of the division\nfor youth designated pursuant to regulations of the director of the\ndivision.\n  (b) Notwithstanding any other provision of law, during the first six\nmonths of the respondent's placement, no motion, hearing or order may be\nmade, held or granted pursuant to section 355.1; provided, however, that\nduring such period a motion to vacate the order may be made pursuant to\nsuch section, but only upon grounds set forth in section 440.10 of the\ncriminal procedure law.\n  (c) During the placement or any extension thereof:\n  (i) after the expiration of the period provided in clause (iii) of\nparagraph (a), the respondent shall not be released from a residential\nfacility without the written approval of the director of the division\nfor youth or his designated deputy director.\n  (ii) the respondent shall be subject to intensive supervision whenever\nnot in a secure or residential facility.\n  (iii) the respondent shall not be discharged from the custody of the\ndivision for youth.\n  (iv) unless otherwise specified in the order, the division shall\nreport in writing to the court not less than once every six months\nduring the placement on the status, adjustment and progress of the\nrespondent.\n  (d) Upon the expiration of the initial period of placement or any\nextension thereof, the placement may be extended in accordance with\nsection 355.3 upon petition of any party or the division for youth,\nafter a dispositional hearing, for an additional period not to exceed\ntwelve months, but no initial placement or extension of placement under\nthis section may continue beyond the respondent's twenty-first birthday.\n  (e) The court may also make an order pursuant to subdivision two of\nsection 353.4.\n  * NB Effective March 31, 2028\n  6. When the order is for a restrictive placement in the case of a\nyouth found to have committed any designated felony act and such youth\nhas been found by a court to have committed a designated felony act on a\nprior occasion, regardless of the age of such youth at the time of\ncommission of such prior act, the order of the court shall be made\npursuant to subdivision four.\n  7. If the dispositional hearing has been adjourned on a finding of\nspecific circumstances pursuant to subdivision six of section 350.1\nwhile the respondent is in detention, where a restrictive placement is\nsubsequently ordered, time spent by the respondent in detention during\nsuch additional adjournment shall be credited and applied against any\nterm of secure confinement ordered by the court pursuant to subdivision\nfour or five.\n  * 8. The office of children and family services or, if applicable, the\nsocial services district operating an approved close to home initiative\npursuant to section four hundred four of the social services law, shall\nretain the power to continue the confinement of the youth in a secure or\nother residential facility, as applicable, beyond the periods specified\nby the court, within the term of the placement.\n  * NB Effective until March 31, 2028\n  * 8. The division for youth shall retain the power to continue the\nconfinement of the youth in a secure or other residential facility\nbeyond the periods specified by the court, within the term of the\nplacement.\n  * NB Effective March 31, 2028\n