NY Crim Pro L § 722.23 (2021)
2021 New York Laws CPL - Criminal Procedure Part 3 - Special Proceedings and Miscellaneous Procedures Title U - Special Proceedings Which Replace,suspend or Abate Criminal Actions Article 722 - Proceedings Against Juvenile Offenders and Adolescent Offenders; Establishment of Youth Part And Related Procedures 722.23 - Removal of Adolescent Offenders to Family Court.

§ 722.23 Removal of adolescent offenders to family court.   1.  (a)  Following the arraignment of a defendant charged with a crime committed when he or she was sixteen, or commencing October  first,  two thousand nineteen, seventeen years of age, other than any class A felony except for those defined in article two hundred twenty of the penal law, a  violent  felony defined in section 70.02 of the penal law or a felony listed in paragraph one or two of subdivision forty-two of section  1.20 of this chapter, or an offense set forth in the vehicle and traffic law, the  court  shall order the removal of the action to the family court in accordance with the  applicable  provisions  of  article  seven  hundred twenty-five  of  this  title unless, within thirty calendar days of such arraignment, the district attorney makes a motion to prevent removal  of the  action  pursuant  to  this  subdivision.  If the defendant fails to report to the probation department as  directed,  the  thirty  day  time period  shall  be  tolled  until  such  time as he or she reports to the probation department.  (b) A motion to prevent removal of an action in youth  part  shall  be made  in  writing  and  upon  prompt notice to the defendant. The motion shall contain allegations of sworn fact based upon personal knowledge of the affiant, and shall indicate if the district attorney is requesting a hearing. The motion shall be noticed to be heard promptly.  (c) The  defendant  shall  be  given  an  opportunity  to  reply.  The defendant  shall  be  granted any reasonable request for a delay. Either party may request a hearing on  the  facts  alleged  in  the  motion  to prevent removal of the action. The hearing shall be held expeditiously.  (d)  The  court shall deny the motion to prevent removal of the action in youth part unless the court makes a determination upon such motion by the district attorney that extraordinary circumstances exist that should prevent the transfer of the action to family court.  (e) The court shall make a determination in writing or on  the  record within  five  days of the conclusion of the hearing or submission by the defense, whichever is later. Such determination shall  include  findings of fact and to the extent practicable conclusions of law.  (f)  For  the  purposes  of this section, there shall be a presumption against custody and case planning services shall be  made  available  to the defendant.  (g)  Notwithstanding  any other provision of law, section 308.1 of the family court act shall apply to all actions transferred pursuant to this section provided, however, such cases shall not be  considered  removals subject to subdivision thirteen of such section 308.1.  (h) Nothing in this subdivision shall preclude, and a court may order, the  removal  of  an  action  to family court where all parties agree or pursuant to this chapter.   2. (a) Upon the arraignment  of  a  defendant  charged  with  a  crime committed  when  he or she was sixteen or, commencing October first, two thousand nineteen, seventeen years of age on a  class  A  felony,  other than  those defined in article 220 of the penal law, or a violent felony defined in section 70.02 of the penal law, the court shall  schedule  an appearance no later than six calendar days from such arraignment for the purpose   of  reviewing  the  accusatory  instrument  pursuant  to  this subdivision. The court shall notify the district attorney and  defendant regarding the purpose of such appearance.  (b)  Upon  such  appearance,  the  court  shall  review the accusatory instrument and any other relevant facts for  the  purpose  of  making  a determination  pursuant  to  paragraph  (c)  of  this  subdivision. Both parties  may  be  heard  and  submit   information   relevant   to   the determination.  (c)  The  court  shall  order the action to proceed in accordance with subdivision one of this section unless, after reviewing the  papers  and hearing  from  the  parties,  the  court  determines in writing that the district attorney proved by a preponderance of the evidence one or  more of the following as set forth in the accusatory instrument:  (i) the defendant caused significant physical injury to a person other than a participant in the offense; or  (ii)  the  defendant  displayed  a  firearm,  shotgun, rifle or deadly weapon as defined in the penal law in furtherance of such offense; or  (iii) the defendant unlawfully engaged  in  sexual  intercourse,  oral sexual  conduct,  anal  sexual  conduct  or sexual contact as defined in section 130.00 of the penal law.  (d) Where the court makes a determination that the  action  shall  not proceed  in  accordance  with  subdivision  one  of  this  section, such determination shall be made in  writing  or  on  the  record  and  shall include  findings  of  fact and to the extent practicable conclusions of law.  (e) Nothing in this subdivision shall  preclude,  and  the  court  may order,  the removal of an action to family court where all parties agree or pursuant to this chapter.   3. Notwithstanding the provisions of any other law, if at any time one or more charges in the accusatory instrument are reduced, such that  the elements  of the highest remaining charge would be removable pursuant to subdivisions one or two of this section, then the court, sua  sponte  or in  response  to  a  motion  pursuant to subdivisions one or two of this section by the defendant, shall promptly notify the parties  and  direct that  the  matter  proceed  in  accordance  with subdivision one of this section, provided, however, that in such instance, the district attorney must file any motion to prevent removal within thirty days of  effecting or receiving notice of such reduction.   4.  A  defendant  may waive review of the accusatory instrument by the court and the opportunity for removal in accordance with  this  section, provided   that   such  waiver  is  made  by  the  defendant  knowingly, voluntarily and in open court, in the presence of and with the  approval of  his  or  her  counsel  and  the  court.  An earlier waiver shall not constitute a waiver of review and the opportunity for removal under this section.