N.Y. FCT Law § 351.1 — New York Code / Act FCT / Article 3 / Part 5 / Section 351.1
Probation, investigation and diagnostic assessment
Status: in_force

§ 351.1. Probation, investigation and diagnostic assessment. 1.\nFollowing a determination that a respondent has committed a designated\nfelony act and prior to the dispositional hearing, the judge shall order\na probation investigation and a diagnostic assessment. For the purposes\nof this article, the probation investigation shall include, but not be\nlimited to, the history of the juvenile including previous conduct, the\nfamily situation, any previous psychological and psychiatric reports,\nschool adjustment, previous social assistance provided by voluntary or\npublic agencies and the response of the juvenile to such assistance. For\nthe purposes of this article, the diagnostic assessment shall include,\nbut not be limited to, psychological tests and psychiatric interviews to\ndetermine mental capacity and achievement, emotional stability and\nmental disabilities. It shall include a clinical assessment of the\nsituational factors that may have contributed to the act or acts. When\nfeasible, expert opinion shall be rendered as to the risk presented by\nthe juvenile to others or himself, with a recommendation as to the need\nfor a restrictive placement.\n  2. Following a determination that a respondent committed a crime and\nprior to the dispositional hearing, the court shall order a probation\ninvestigation and may order a diagnostic assessment.\n  * 2-a. (a) 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, the local probation\ndepartment shall develop and submit to the office of children and family\nservices for prior approval a validated pre-dispositional risk\nassessment instrument and any risk assessment process. The office shall\nshare a copy of any such instrument and process with the office of\nprobation and correctional alternatives and any expert consulting with\nthe office pursuant to this section. Such department shall periodically\nrevalidate any approved pre-dispositional risk assessment instrument.\nThe department shall conspicuously post information about the instrument\non its website, including but not limited to, the name of the\ninstrument; the name and contact information of the person, institution\nor company that developed such instrument; what the instrument is\nintended to measure; the types of factors and information the instrument\ntakes into consideration; the process by which the instrument is used in\nboth the pre-disposition investigation and dispositional phase of a\nhearing; the purpose for the instrument and how the instrument informs\nthe recommendation in the pre-dispositional investigation report; links\nto independent research and studies about the instrument as well as its\nown validation analysis relating to the instrument, when available; the\nmost recent date the instrument was validated and the date the next\nre-validation process is anticipated to begin. The department shall\nconfer with appropriate stakeholders, including but not limited to,\nattorneys for children, presentment agencies and the family court, prior\nto revising any validated pre-dispositional risk assessment instrument\nor process. Such department shall provide any approved pre-dispositional\nrisk assessment instrument and process to the temporary president of the\nsenate and the speaker of the assembly. Any revised pre-dispositional\nrisk assessment instrument shall be subject to periodic empirical\nvalidation and to the approval of the office of children and family\nservices. The office of children and family services shall consult with\nindividuals with professional research experience and expertise in\ncriminal justice; social work; juvenile justice; and applied\nmathematics, psychometrics and/or statistics to assist the office in\ndetermining the methods it will use to: approve the department's\nvalidated and revalidated pre-dispositional risk assessment instrument\nand process; and analyze the effectiveness of the use of such instrument\nand process in accomplishing their intended goals; and analyze, to the\ngreatest extent possible, any disparate impact on dispositional outcomes\nfor juveniles based on race, sex, national origin, economic status, and\nany other constitutionally protected class, regarding the use of such\ninstrument. The office shall consult with such individuals regarding\nwhether it is appropriate to attempt to analyze whether there is any\nsuch disparate impact based on sexual orientation and, if so, the best\nmethods to conduct such analysis. The office shall take into\nconsideration any recommendations given by such individuals involving\nimprovements that could be made to such instrument and process. The\ndepartment shall provide training on the approved instrument and any\napproved process to the applicable family courts, presentment agency,\nand court appointed attorneys for respondents.\n  (b) Once an initial validated risk assessment instrument and any risk\nassessment process have been approved by the office of children and\nfamily services in consultation with the office of probation and\ncorrectional alternatives, the local probation department shall provide\nthe applicable supervising family court judge with a copy of the\nvalidated risk assessment instrument and any such process along with the\nletter from the office of children and family services approving the\ninstrument and process, if applicable, and indicating the date the\ninstrument and any such process shall be effective, provided that such\neffective date shall be at least thirty days after such notification.\n  (c) Commencing on the effective date of a validated pre-dispositional\nrisk assessment instrument and any approved process and thereafter, each\nprobation investigation ordered under subdivision two of this section\nshall include the results of the validated risk assessment of the\nrespondent and process, if any; and a respondent shall not be placed in\naccordance with section 353.3 or 353.5 of this part unless the court has\nreceived and given due consideration to the results of such validated\nrisk assessment and any approved process and made the findings required\npursuant to paragraph (f) of subdivision two of section 352.2 of this\npart.\n  (d) Notwithstanding any other provision of law to the contrary, data\nnecessary for completion of a pre-dispositional risk assessment\ninstrument may be shared among law enforcement, probation, courts,\ndetention administrations, detention providers, presentment agencies,\nand the attorney for the child upon retention or appointment solely for\nthe purpose of accurate completion of such risk assessment instrument. A\ncopy of the completed pre-dispositional risk assessment instrument shall\nbe made available to the attorney for the respondent and the applicable\ncourt.\n  (e) The local probation department shall provide the office of\nprobation and correctional alternatives with information regarding the\nuse of the pre-dispositional risk assessment instrument and any risk\nassessment process in the time and manner required by the office. The\noffice may require that such data be submitted to the office\nelectronically. The office shall not commingle any such information with\nany criminal history database. The office shall share such information\nwith the office of children and family services. The office of children\nand family services shall use and share such information only for the\npurposes of this section and in accordance with this section. Such\ninformation shall be shared and received in a manner that protects the\nconfidentiality of such information. The sharing, use, disclosure and\nredisclosure of such information to any person, office, or other entity\nnot specifically authorized to receive it pursuant to this section or\nany other law is prohibited.\n  (f) The family courts shall provide the office of children and family\nservices with such information, in the time and manner required by the\noffice, as is necessary for the office to determine the validity and\nefficacy of any pre-dispositional risk assessment instrument and process\nsubmitted to the office for approval under this subdivision and to\nanalyze any disparate impact on dispositional outcomes for juveniles in\naccordance with paragraph (a) of this subdivision. The office shall use\nand share such information only for the purposes of this section and in\naccordance with this section. Such information shall be shared and\nreceived in a manner that protects the confidentiality of such\ninformation. The sharing, use, disclosure and redisclosure of such\ninformation to any person, office, or other entity not specifically\nauthorized to receive it pursuant to this section or any other law is\nprohibited.\n  (g) The office of probation and correctional alternatives shall\npromulgate regulations, in consultation with the office of children and\nfamily services, regarding the role of local probation departments in\nthe completion and use of the pre-dispositional risk assessment\ninstrument and in the risk assessment process.\n  * NB Repealed March 31, 2028\n  * 2-b. The office of children and family services shall develop a\nvalidated pre-dispositional risk assessment instrument and any risk\nassessment process for juvenile delinquents. The office shall\nperiodically revalidate any approved pre-dispositional risk assessment\ninstrument. The office shall conspicuously post any approved\npre-dispositional risk assessment instrument and any risk assessment\nprocess on its website and shall confer with appropriate stakeholders,\nincluding but not limited to, attorneys for children, presentment\nagencies and the family court, prior to revising any validated\npre-dispositional risk assessment instrument or process. Any such\nrevised pre-dispositional risk assessment instrument shall be subject to\nperiodic empirical validation. The office of children and family\nservices shall consult with individuals with professional research\nexperience and expertise in criminal justice; social work; juvenile\njustice; and applied mathematics, psychometrics and/or statistics to\nassist the office in determining the method it will use to: develop,\nvalidate and revalidate such pre-dispositional risk assessment\ninstrument; develop the risk assessment process; and analyze the\neffectiveness of the use of such pre-dispositional risk assessment\ninstrument and process in accomplishing their intended goals; and\nanalyze, to the greatest extent possible, any disparate impact on\ndispositional outcomes for juveniles based on race, sex, national\norigin, economic status, and any other constitutionally protected class,\nregarding the use of such instrument. The office shall consult with such\nindividuals regarding whether it is appropriate to attempt to analyze\nwhether there is any such disparate impact based on sexual orientation\nand, if so, the best methods to conduct such analysis. The office shall\ntake into consideration any recommendations given by such individuals\ninvolving improvements that could be made to such instrument and\nprocess. The office also shall consult with local probation departments\nin the development of the validated pre-dispositional risk assessment\ninstrument and the revalidation of such instrument. The office of\nchildren and family services shall provide training on the instrument\nand any process to the family courts, local probation departments,\npresentment agencies and court appointed attorneys for respondents. The\noffice may determine that a pre-dispositional risk assessment instrument\nand any process in use pursuant to subdivision two-a of section 351.1 of\nthis part may continue to be used pursuant to such subdivision instead\nof requiring the use of any instrument or process developed pursuant to\nthis subdivision.\n  (a) Once an initial validated risk assessment instrument and risk\nassessment process have been developed, the office of children and\nfamily services shall provide the supervising family court judges and\nlocal probation departments with copies of the validated risk assessment\ninstrument and process and notify them of the effective date of the\ninstrument and process, which shall be at least six months after such\nnotification.\n  (b) Commencing on the effective date of a validated risk assessment\ninstrument and any risk assessment process and thereafter, each\nprobation investigation ordered under subdivision two of this section\nshall include the results of the validated risk assessment of the\nrespondent and process, if any; and a respondent shall not be placed in\naccordance with section 353.3 or 353.5 of this part unless the court has\nreceived and given due consideration to the results of such validated\nrisk assessment and any process and made the findings required pursuant\nto paragraph (g) of subdivision two of section 352.2 of this part.\n  (c) Notwithstanding any other provision of law to the contrary, data\nnecessary for completion of a pre-dispositional risk assessment\ninstrument may be shared among law enforcement, probation, courts,\ndetention administrations, detention providers, presentment agencies and\nthe attorney for the child upon retention or appointment solely for the\npurpose of accurate completion of such risk assessment instrument, and a\ncopy of the completed pre-dispositional risk assessment instrument shall\nbe made available to the attorney for the respondent and applicable\ncourt.\n  (d) Local probation departments shall provide the office of probation\nand correctional alternatives with information regarding use of the\npre-dispositional risk assessment instrument and any risk assessment\nprocess in the time and manner required by the office. The office may\nrequire that such data be submitted to the office electronically. The\noffice shall not commingle any such information with any criminal\nhistory database. The office shall share such information with the\noffice of children and family services. The office of children and\nfamily services shall use and share such information only for the\npurposes of this section and in accordance with this section. Such\ninformation shall be shared and received in a manner that protects the\nconfidentiality of such information. The sharing, use, disclosure and\nredisclosure of such information to any person, office, or other entity\nnot specifically authorized to receive it pursuant to this section or\nany other law is prohibited.\n  (e) Law enforcement and the family courts shall provide the office of\nchildren and family services with such information, in the time and\nmanner required by the office, as is necessary for the office to\ndevelop, validate and revalidate any such pre-dispositional risk\nassessment instrument and process and to analyze any disparate impact on\ndispositional outcomes for juveniles in accordance with this section.\nThe office shall use and share such information only for the purposes of\nthis section and share it in accordance with this section. Such\ninformation shall be shared and received in a manner that protects the\nconfidentiality of such information. The sharing, use, disclosure and\nredisclosure of such information to any person, office, or other entity\nnot specifically authorized to receive it pursuant to this section or\nany other law is prohibited.\n  (f) The office of probation and correctional alternatives shall\npromulgate regulations, in consultation with the office of children and\nfamily services, regarding the role of local probation departments in\nthe completion and use of the pre-dispositional risk assessment\ninstrument and in the risk assessment process.\n  * NB Repealed March 31, 2028\n  3. A child shall not be placed in accord with section 353.3 unless the\ncourt has ordered a probation investigation prior to the dispositional\nhearing; a child shall not be placed in accord with section 353.4 unless\nthe court has ordered a diagnostic assessment prior to such hearing.\n  4. Each investigation report prepared pursuant to this section shall\nafford the victim the right to make a statement. Such victim impact\nstatement shall include an analysis of the victim's version of the\noffense, the extent of injury or economic loss and the actual\nout-of-pocket loss or damage to the victim, including the amount of\nunreimbursed medical expenses, if any, and the views of the victim\nrelating to disposition including the amount of restitution sought by\nthe victim, subject to availability of such information. In the case\nwhere the victim is unable to assist in the preparation of the victim\nimpact statement, the information may be acquired from the victim's\nfamily. Nothing contained in this section shall be interpreted to\nrequire that a victim or his or her family supply information for the\npreparation of an investigation report or that the dispositional hearing\nshould be delayed in order to obtain such information.\n  5. (a) All diagnostic assessments and probation investigation reports\nshall be submitted to the court and made available by the court for\ninspection and copying by the presentment agency and the respondent at\nleast five court days prior to the commencement of the dispositional\nhearing. All such reports shall be made available by the court for\ninspection and copying by the presentment agency and the respondent in\nconnection with any appeal in the case.\n  (b) The victim impact statement shall be made available to the victim\nor the victim's family by the presentment agency prior to sentencing.\n  6. All reports or memoranda prepared or obtained by the probation\nservice for the purpose of a dispositional hearing shall be deemed\nconfidential information furnished to the court and shall be subject to\ndisclosure solely in accordance with this section or as otherwise\nprovided for by law. Except as provided under section 320.5 such reports\nor memoranda shall not be furnished to the court prior to the entry of\nan order pursuant to section 345.1.\n  7. The probation services which prepare the investigation reports\nshall be responsible for the collection and transmission to the office\nof probation and correctional alternatives, of data on the number of\nvictim impact statements prepared. Such information shall be transmitted\nannually to the office of victim services and included in the office's\nbiennial report pursuant to subdivision twenty-one of section six\nhundred twenty-three of the executive law.\n