- Consolidated Laws - Family Court
PART 4
THE FACT-FINDING HEARING
Section 340.1. Time of fact-finding hearing.
340.2. Presiding judge.
341.1. Exclusion of general public.
341.2. Presence of respondent and his parent.
342.1. The fact-finding hearing; order of procedure.
342.2. Evidence in fact-finding hearings; required quantum.
343.1. Rules of evidence; testimony given by children.
343.2. Rules of evidence; corroboration of accomplice testimony.
343.3. Rules of evidence; identification by means of previous
recognition in absence of present identification.
343.4. Rules of evidence; identification by means of previous
recognition, in addition to present identification.
343.5. Rules of evidence; impeachment of own witness by proof of
prior contradictory statement.
344.1. Rules of evidence; proof of previous conviction or
delinquency finding.
344.2. Rules of evidence; statements of respondent;
corroboration.
344.3. Rules of evidence; psychiatric testimony in certain
cases.
344.4. Rules of evidence; admissibility of evidence of victim`s
sexual conduct in sex offense cases.
345.1. Orders.
346.1. Fact-finding hearing; removal.
347.1. Required testing of the respondent in certain
proceedings.
S 340.1. Time of fact-finding hearing. 1. If the respondent is in
detention and the highest count in the petition charges the commission
of a class A, B, or C felony, the fact-finding hearing shall commence
not more than fourteen days after the conclusion of the initial
appearance except as provided in subdivision four. If the respondent is
in detention and the highest count in such petition is less than a class
C felony the fact-finding hearing shall commence no more than three days
after the conclusion of the initial appearance except as provided in
subdivision four.
2. If the respondent is not in detention the fact-finding hearing
shall commence not more than sixty days after the conclusion of the
initial appearance except as provided in subdivision four.
3. For the purposes of this section, in any case where a proceeding
has been removed to the family court pursuant to an order issued
pursuant to section 725.05 of the criminal procedure law, the date
specified in such order for the defendant`s appearance in the family
court shall constitute the date of the initial appearance.
4. The court may adjourn a fact-finding hearing:
(a) on its own motion or on motion of the presentment agency for good
cause shown for not more than three days if the respondent is in
detention and not more than thirty days if the respondent is not in
detention; provided, however, that if there is probable cause to believe
the respondent committed a homicide or a crime which resulted in a
person being incapacitated from attending court, the court may adjourn
the hearing for a reasonable length of time; or
(b) on motion by the respondent for good cause shown for not more than
thirty days; or
(c) on its own motion for not more than six months if the proceeding
has been adjourned in contemplation of dismissal pursuant to section
315.3.
5. The court shall state on the record the reason for any adjournment
of the fact-finding hearing.
6. Successive motions to adjourn a fact-finding hearing shall not be
granted in the absence of a showing, on the record, of special
circumstances; such circumstances shall not include calendar congestion
or the status of the court`s docket or backlog.
7. For purposes of this section, if a warrant for the respondent`s
arrest has been issued pursuant to section 312.2 of this article due to
the respondent`s failure to appear for a scheduled fact-finding hearing,
computation of the time within which such hearing must take place shall
exclude the period extending from the date of issuance of the bench
warrant for respondent`s arrest because of his or her failure to appear
to the date the respondent subsequently appears in court pursuant to a
bench warrant or appears voluntarily; provided, however, no period of
time may be excluded hereunder unless the respondent`s location cannot
be determined by the exercise of due diligence or, if the respondent`s
location is known, his or her presence in court cannot be obtained by
the exercise of due diligence. In determining whether due diligence has
been exercised, the court shall consider, among other factors, the
report presented to the court pursuant to subdivision two of section
312.2 of this article.
S 340.2. Presiding judge. 1. The judge who presides at the
commencement of the fact-finding hearing shall continue to preside until
such hearing is concluded and an order entered pursuant to section 345.1
unless a mistrial is declared.
2. The judge who presides at the fact-finding hearing or accepts an
admission pursuant to section 321.3 shall preside at any other
subsequent hearing in the proceeding, including but not limited to the
dispositional hearing.
3. Notwithstanding the provisions of subdivision two, the rules of the
family court shall provide for the assignment of the proceeding to
another judge of the court when the appropriate judge cannot preside:
(a) by reason of illness, disability, vacation or no longer being a
judge of the court in that county; or
(b) by reason of removal from the proceeding due to bias, prejudice or
similar grounds; or
(c) because it is not practicable for the judge to preside.
4. The provisions of this section shall not be waived.
S 341.1. Exclusion of general public. The general public may be
excluded from any proceeding under this article and only such persons
and the representatives of authorized agencies as have a direct interest
in the case shall be admitted thereto.
S 341.2. Presence of respondent and his parent. 1. The respondent and
his counsel or law guardian shall be personally present at any hearing
under this article and at the initial appearance.
2. If a respondent conducts himself in so disorderly and disruptive a
manner that the hearing cannot be carried on with him in the courtroom,
the court may order a recess for the purpose of enabling his parent or
other person responsible for his care and his law guardian or counsel to
exercise full efforts to assist the respondent to conduct himself so as
to permit the proceedings to resume in an orderly manner. If such
efforts fail, the respondent may be removed from the courtroom if, after
he is warned by the court that he will be removed, he continues such
disorderly and disruptive conduct. Such time shall not extend beyond the
minimum period necessary to restore order.
3. The respondent`s parent or other person responsible for his care
shall be present at any hearing under this article and at the initial
appearance. However, the court shall not be prevented from proceeding by
the absence of such parent or person if reasonable and substantial
effort has been made to notify such parent or other person and if the
respondent and his law guardian or counsel are present.
S 342.1. The fact-finding hearing; order of procedure. The order of
the fact-finding hearing shall be as follows:
1. The court shall permit the parties to deliver opening addresses. If
both parties deliver opening addresses, the presentment agency`s address
shall be delivered first.
2. The presentment agency must offer evidence in support of the
petition.
3. The respondent may offer evidence in his defense.
4. The presentment agency may offer evidence in rebuttal of the
respondent`s evidence, and the respondent may then offer evidence in
rebuttal of the presentment agency`s evidence. The court may in its
discretion permit the parties to offer further rebuttal or surrebuttal
evidence in this pattern. In the interest of justice, the court may
permit either party to offer evidence upon rebuttal which is not
technically of a rebuttal nature but more properly a part of the
offering party`s original case.
5. At the conclusion of the evidence, the respondent shall have the
right to deliver a summation.
6. The presentment agency shall then have the right to deliver a
summation.
7. The court must then consider the case and enter a finding.
S 342.2. Evidence in fact-finding hearings; required quantum. 1. Only
evidence that is competent, material and relevant may be admitted at a
fact-finding hearing.
2. Any determination at the conclusion of a fact-finding hearing that
a respondent committed an act or acts which if committed by an adult
would be a crime must be based on proof beyond a reasonable doubt.
3. An order of removal pursuant to a direction authorized by sections
220.10, 310.85 and 330.25 of the criminal procedure law constitutes
proof beyond a reasonable doubt and a determination that the respondent
did the act or acts specified therein in accordance with section 725.05
of the criminal procedure law.
S 343.1. Rules of evidence; testimony given by children. 1. Any person
may be a witness in a delinquency proceeding unless the court finds
that, by reason of infancy or mental disease or defect, he does not
possess sufficient intelligence or capacity to justify reception of his
evidence.
2. Every witness more than twelve years old may testify only under
oath unless the court is satisfied that such witness cannot, as a result
of mental disease or defect, understand the nature of an oath. A child
less than twelve years old may not testify under oath unless the court
is satisfied that he understands the nature of an oath. If the court is
not so satisfied, such child or such witness over twelve years old who
cannot, as a result of mental disease or defect, understand the nature
of an oath may nevertheless be permitted to give unsworn evidence if the
court is satisfied that the witness possesses sufficient intelligence
and capacity to justify the reception thereof.
3. A respondent may not be found to be delinquent solely upon the
unsworn evidence given pursuant to subdivision two.
* 4. A child witness may give testimony in accordance with the
provisions of article sixty-five of the criminal procedure law, provided
such child is declared vulnerable in accordance with subdivision one of
section 65.10 of such law. A child witness means a person twelve years
old or less who is or will be called to testify in any proceeding
concerning an act defined in article one hundred thirty of the penal law
or section 255.25 of such law, which act would constitute a crime if
committed by an adult. The provisions of this subdivision shall expire
and be deemed repealed on the same date as article sixty-five of the
criminal procedure law expires and is deemed repealed pursuant to
section five of chapter five hundred five of the laws of nineteen
hundred eighty-five, as from time to time, amended.
* NB Repealed September 1, 2003
S 343.2. Rules of evidence; corroboration of accomplice testimony. 1.
A respondent may not be found to be delinquent upon the testimony of an
accomplice unsupported by corroborative evidence tending to connect the
respondent with the commission of the crime or crimes charged in the
petition.
2. An "accomplice" means a witness in a juvenile delinquency
proceeding who, according to evidence adduced in such proceeding, may
reasonably be considered to have participated in:
(a) the crime charged; or
(b) a crime based on the same or some of the same facts or conduct
which constitutes the crime charged in the petition.
3. A witness who is an accomplice as defined in subdivision two is no
less such because a proceeding, conviction or finding of delinquency
against him would be barred or precluded by some defense or exemption
such as infancy, immunity or previous prosecution amounting to a
collateral impediment to such proceeding, conviction or finding, not
affecting the conclusion that such witness engaged in the conduct
constituting the crime with the mental state required for the commission
thereof.
S 343.3. Rules of evidence; identification by means of previous
recognition in absence of present identification. 1. In any juvenile
delinquency proceeding in which the respondent`s commission of a crime
is in issue, testimony as provided in subdivision two may be given by a
witness when:
(a) such witness testifies that:
(i) he observed the person claimed by the presentment agency to be the
respondent either at the time and place of the commission of the crime
or upon some other occasion relevant to the case; and
(ii) on a subsequent occasion he observed, under circumstances
consistent with such rights as an accused person may derive under the
constitution of this state or of the United States, a person whom he
recognized as the same person whom he had observed on the first
incriminating occasion; and
(iii) he is unable at the proceeding to state, on the basis of present
recollection, whether or not the respondent is the person in question;
and
(b) it is established that the respondent is in fact the person whom
the witness observed and recognized on the second occasion. Such fact
may be established by testimony of another person or persons to whom the
witness promptly declared his recognition on such occasion.
2. Under circumstances prescribed in subdivision one, such witness may
testify at the proceeding that the person whom he observed and
recognized on the second occasion is the same person whom he observed on
the first or incriminating occasion. Such testimony, together with the
evidence that the respondent is in fact the person whom the witness
observed and recognized on the second occasion, constitutes evidence in
chief.
S 343.4. Rules of evidence; identification by means of previous
recognition, in addition to present identification. In any juvenile
delinquency proceeding in which the respondent`s commission of a crime
is in issue, a witness who testifies that: (a) he observed the person
claimed by the presentment agency to be the respondent either at the
time and place of the commission of the crime or upon some other
occasion relevant to the case, and (b) on the basis of present
recollection, the respondent is the person in question, and (c) on a
subsequent occasion he observed the respondent, under circumstances
consistent with such rights as an accused person may derive under the
constitution of this state or of the United States, and then also
recognized him as the same person whom he had observed on the first or
incriminating occasion, may, in addition to making an identification of
the respondent at the delinquency proceeding on the basis of present
recollection as the person whom he observed on the first or
incriminating occasion, also describe his previous recognition of the
respondent and testify that the person whom he observed on such second
occasion is the same person whom he had observed on the first or
incriminating occasion. Such testimony constitutes evidence in chief.
S 343.5. Rules of evidence; impeachment of own witness by proof of
prior contradictory statement. 1. When, upon examination by the party
who called him, a witness in a delinquency proceeding gives testimony
upon a material issue of the case which tends to disprove the position
of such party, such party may introduce evidence that such witness has
previously made either a written statement signed by him or an oral
statement under oath contradictory to such testimony.
2. Evidence concerning a prior contradictory statement introduced
pursuant to subdivision one may be received only for the purpose of
impeaching the credibility of the witness with respect to his testimony
upon the subject, and does not constitute evidence in chief.
3. When a witness has made a prior signed or sworn statement
contradictory to his testimony in a delinquency proceeding upon a
material issue of the case, but his testimony does not tend to disprove
the position of the party who called him and elicited such testimony,
evidence that the witness made such prior statement is not admissible,
and such party may not use such prior statement for the purpose of
refreshing the recollection of the witness in a manner that discloses
its contents to the court.
S 344.1. Rules of evidence; proof of previous conviction or
delinquency finding. 1. If in the course of a juvenile delinquency
proceeding, any witness, including a respondent, is properly asked
whether he was previously convicted of a specified offense and answers
in the negative or in an equivocal manner, the party adverse to the one
who called him may independently prove such conviction. If in response
to proper inquiry whether he has ever been convicted of any offense the
witness answers in the negative or in an equivocal manner, the adverse
party may independently prove any previous conviction.
2. If a respondent in a juvenile delinquency proceeding, through the
testimony of a witness other than respondent called by him, offers
evidence of his good character, the presentment agency may independently
prove any previous finding of delinquency of the respondent for a crime
the commission of which would tend to negate any character trait or
quality attributed to the respondent in such witness` testimony.
S 344.2. Rules of evidence; statements of respondent; corroboration.
1. Evidence of a written or oral confession, admission, or other
statement made by a respondent with respect to his participation or lack
of participation in the crime charged, may not be received in evidence
against him in a juvenile delinquency proceeding if such statement was
involuntarily made.
2. A confession, admission or other statement is "involuntarily made"
by a respondent when it is obtained from him:
(a) by any person by the use or threatened use of physical force upon
the respondent or another person, or by means of any other improper
conduct or undue pressure which impaired the respondent`s physical or
mental condition to the extent of undermining his ability to make a
choice whether or not to make a statement; or
(b) by a public servant engaged in law enforcement activity or by a
person then acting under his direction or in cooperation with him:
(i) by means of any promise or statement of fact, which promise or
statement creates a substantial risk that the respondent might falsely
incriminate himself; or
(ii) in violation of such rights as the respondent may derive from the
constitution of this state or of the United States; or
(iii) in violation of section 305.2.
3. A child may not be found to be delinquent based on the commission
of any crime solely upon evidence of a confession or admission made by
him without additional proof that the crime charged has been committed.
S 344.3. Rules of evidence; psychiatric testimony in certain cases.
When, in connection with a defense of mental disease or defect, a
psychiatrist or licensed psychologist who has examined the respondent
testifies at the fact-finding hearing concerning the respondent`s mental
condition at the time of the conduct charged to constitute a crime, he
must be permitted to make a statement as to the nature of the
examination, the diagnosis of the mental condition of the respondent and
his opinion as to the extent, if any, to which the capacity of the
respondent to know or appreciate the nature and consequences of such
conduct, or its wrongfulness, was impaired as a result of mental disease
or defect at that time. The psychiatrist must be permitted to make any
explanation reasonably serving to clarify his diagnosis and opinion, and
may be cross-examined as to any matter bearing on his competency or
credibility or the validity of his diagnosis or opinion.
S 344.4. Rules of evidence; admissibility of evidence of victim`s
sexual conduct in sex offense cases. Evidence of a victim`s sexual
conduct shall not be admissible in a juvenile delinquency proceeding for
a crime or an attempt to commit a crime defined in article one hundred
thirty of the penal law unless such evidence:
1. proves or tends to prove specific instances of the victim`s prior
sexual conduct with the accused; or
2. proves or tends to prove that the victim has been convicted of an
offense under section 230.00 of the penal law within three years prior
to the sex offense which is the subject of the juvenile delinquency
proceeding; or
3. rebuts evidence introduced by the presentment agency of the
victim`s failure to engage in sexual intercourse, deviate sexual
intercourse or sexual contact during a given period of time; or
4. rebuts evidence introduced by the presentment agency which proves
or tends to prove that the accused is the cause of pregnancy or disease
of the victim, or the source of semen found in the victim; or
5. is determined by the court after an offer of proof by the accused,
or such hearing as the court may require, and a statement by the court
of its findings of fact essential to its determination, to be relevant
and admissible in the interests of justice.
S 345.1. Orders. 1. If the allegations of a petition or specific
counts of a petition concerning the commission of a crime or crimes are
established, the court shall enter an appropriate order and schedule a
dispositional hearing pursuant to section 350.1. The order shall specify
the count or counts of the petition upon which such order is based and
the section or sections of the penal law or other law under which the
act or acts so stated would constitute a crime if committed by an adult.
If the respondent or respondents are found to have committed a
designated felony act, the order shall so state.
2. If the allegations of a petition or specific counts of a petition
under this article are not established, the court shall enter an order
dismissing the petition or specific counts therein.
S 346.1. Fact-finding hearing; removal. Where the proceeding was
commenced by the filing of an order of removal pursuant to a direction
authorized by section 220.10, 310.85 or 330.25 of the criminal procedure
law, the requirements of a fact-finding hearing shall be deemed to have
been satisfied upon the filing of the order and no further fact-finding
hearing need be held; provided, however, that where any specification
required by subdivision five of section 725.05 of the criminal procedure
law is not clear, the court may examine such records or hold such
hearing as it deems necessary to clarify said specification.
S 347.1. Required testing of the respondent in certain proceedings.
1. (a) In any proceeding where the respondent is found pursuant to
section 345.1 or 346.1 of this article, to have committed a felony
offense enumerated in any section of article one hundred thirty of the
penal law, or any subdivision of section 130.20 of such law, for which
an act of "sexual intercourse" or "deviate sexual intercourse", as those
terms are defined in section 130.00 of the penal law, is required as an
essential element for the commission thereof, the court must, upon a
request of the victim, order that the respondent submit to human
immunodeficiency (HIV) related testing. The testing is to be conducted
by a state, county, or local public health officer designated by the
order. Test results, which shall not be disclosed to the court, shall be
communicated to the respondent and the victim named in the order in
accordance with the provisions of section twenty-seven hundred
eighty-five-a of the public health law.
(b) For the purposes of this section, the term "victim" means the
person with whom the respondent engaged in an act of sexual intercourse
or deviate sexual intercourse, as those terms are defined in section
130.00 of the penal law, where such conduct with such victim was the
basis for the court`s finding that the respondent committed acts
constituting one or more of the offenses specified in paragraph (a) of
this subdivision.
2. Any request made by the victim pursuant to this section must be in
writing, filed with the court and provided by the court to the defendant
and his or her counsel. The request must be filed with the court prior
to or within ten days after the filing of an order in accordance with
section 345.1 or 346.1 of this article, provided that, for good cause
shown, the court may permit such request to be filed at any time prior
to the entry of an order of disposition.
3. Any requests, related papers and orders made or filed pursuant to
this section, together with any papers or proceedings related thereto,
shall be sealed by the court and not made available for any purpose,
except as may be necessary for the conduct of judicial proceedings
directly related to the provisions of this section. All proceedings on
such requests shall be held in camera.
4. The application for an order to compel a respondent to undergo an
HIV related test may be made by the victim but, if the victim is an
infant or incompetent person, the application may also be made by a
representative as defined in section twelve hundred one of the civil
practice law and rules. The application must state that (a) the
applicant was the victim of the offense, enumerated in paragraph (a) of
subdivision one of this section, which the court found the defendant to
have committed; and (b) the applicant has been offered counseling by a
public health officer and been advised of (i) the limitations on the
information to be obtained through an HIV test on the proposed subject;
(ii) current scientific assessments of the risk of transmission of HIV
from the exposure he or she may have experienced; and (iii) the need for
the applicant to undergo HIV related testing to definitively determine
his or her HIV status.
5. The court shall conduct a hearing only if necessary to determine if
the applicant is the victim of the offense the respondent was found to
have committed. The court ordered test must be performed within fifteen
days of the date on which the court ordered the test, provided however
that whenever the respondent is not tested within the period prescribed
by the court, the court must again order that the respondent undergo an
HIV related test.
6. (a) Test results shall be disclosed subject to the following
limitations, which shall be specified in any order issued pursuant to
this section:
(i) disclosure of confidential HIV related information shall be
limited to that information which is necessary to fulfill the purpose
for which the order is granted;
(ii) disclosure of confidential HIV related information shall be
limited to the person making the application; redisclosure shall be
permitted only to the victim, the victim`s immediate family, guardian,
physicians, attorneys, medical or mental health providers and to his or
her past and future contacts to whom there was or is a reasonable risk
of HIV transmission and shall not be permitted to any other person or
the court.
(b) Unless inconsistent with this section, the court`s order shall
direct compliance with and conform to the provisions of article
twenty-seven-F of the public health law. Such order shall include
measures to protect against disclosure to others of the identity and HIV
status of the applicant and of the person tested and may include such
other measures as the court deems necessary to protect confidential
information.
7. Any failure to comply with the provisions of this section or
section twenty-seven hundred eighty-five-a of the public health law
shall not impair the validity of any order of disposition entered by the
court.
8. No information obtained as a result of a consent, hearing or court
order for testing issued pursuant to this section nor any information
derived therefrom may be used as evidence in any criminal or civil
proceeding against the respondent which relates to events that were the
basis for the respondent`s conviction, provided however that nothing
herein shall prevent prosecution of a witness testifying in any court
hearing held pursuant to this section for perjury pursuant to article
two hundred ten of the penal law.
