2023 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 vaginal sexual contact, oral
sexual contact, anal sexual contact, 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.