New York Codes, Rules and Regulations › Title 9 - EXECUTIVE DEPARTMENT › Subtitle E - Office of Children and Family Services › Part 175 - Transfers › Subpart 175-2 - Transfers Of Juvenile Delinquents To Secure Facilities › Section 175-2.5 - Conduct of a transfer hearing

Current through Register Vol. 46, No. 28, July 10, 2024
(a)
				  All transfer hearings shall be conducted within 72 hours after the notice of
				  charges has been delivered to the juvenile delinquent or as soon as practicable
				  under the circumstances of the case.
(b) The transfer hearing will be conducted by
				  an outside hearing officer who is experienced in the child care field and is
				  not an employee of the Division for Youth. A list of the officers and their
				  resumes shall be available for public inspection. The hearing officer need not
				  be an attorney.
(c) Formal rules of
				  evidence will not be in effect at the hearing except that all testimony shall
				  be given under oath administered by someone authorized by the State of New York
				  to administer oaths.
(d) The
				  juvenile delinquent and his representative shall be present during the
				  presentation of evidence to the hearing officer; provided, however, that upon
				  the request of either party, the hearing officer may determine that the
				  juvenile delinquent should be excused during all or any part of a witness's
				  testimony if it appears that the hearing of such testimony would be harmful to
				  the juvenile delinquent. All witnesses shall be excluded from the hearing until
				  called to testify, except in no case shall the ombudsman, the youth's
				  representative, or the facility's representative be excluded. The
				  representative shall assist the juvenile delinquent at the hearing. The
				  facility director or his designee may present any written evidence, including
				  but not limited to clinical evaluations and incident reports, as well as any
				  oral testimony, in support of the transfer. After presentation of the
				  facility's evidence, the juvenile delinquent and his witnesses will present
				  their testimony or other evidence in response. Cross-examination shall be
				  allowed but shall be limited in the discretion of the hearing officer to
				  relevant and nonrepititious questions. Rebuttal evidence may be presented. The
				  hearing officer may question any witness during any presentation.
(e) The ombudsman may attend the transfer
				  hearing on his own or at the juvenile delinquent's request.
(f) The hearing shall be tape recorded, in a
				  manner which reasonably assures a complete and audible recording of the
				  hearing, and the tapes and all evidence submitted to the hearing officer shall
				  be sent to the chairperson of the Division for Youth's transfer board and shall
				  be retained by him for two years. The tapes and documentary evidence shall be
				  available for inspection by an attorney for the juvenile delinquent within two
				  weeks of the hearing. If the attorney requests a transcript of the hearing or a
				  copy of the documentary evidence, the division shall provide them within a
				  reasonable time, but only upon written assurance by the attorney that he shall
				  bear the costs thereof.
(g) Within
				  12 hours of the close of the hearing, the hearing officer shall render an oral
				  decision. If the hearing officer finds by substantial evidence that the
				  juvenile delinquent has been shown to be exceptionally dangerous to himself or
				  to other persons while at the school or center; or that the juvenile delinquent
				  has demonstrated by a pattern of behavior that he needs a more structured
				  setting; or that the juvenile delinquent is in need of protection and that
				  placement at another facility is unavailable or inappropriate, the hearing
				  officer shall affirm the facility director's decision to transfer the juvenile
				  delinquent. A finding against the school or center shall prohibit the
				  transfer.
(h) Within five days
				  after the hearing, the hearing officer shall prepare a written decision in
				  which he states the evidence relied upon and the grounds for his decision. In
				  the case of a transfer requested by the juvenile delinquent, the hearing
				  officer shall make a finding that independent evidence exists to justify the
				  transfer.
(i) When the written
				  decision is rendered, a copy of it shall be given to the director of the
				  facility in which the juvenile delinquent resides and he, or his designee,
				  shall give a copy to the juvenile delinquent and explain the decision to the
				  juvenile delinquent. A copy shall also be given to the youth's representative.
				  If the decision affirms the transfer, a copy shall be sent to the youth's
				  parents or guardian and to the Family Court which ordered the
				  disposition.
(j) If the hearing
				  officer affirms the decision to transfer the juvenile delinquent and the
				  transfer is made before the written decision is rendered, the director of the
				  secure facility or his designee shall inform the juvenile delinquent of the
				  decision to transfer and explain the reasons to him. The youth's representative
				  shall also be notified.