N.Y. Comp. Codes R. & Regs. tit. 22 § 205.22

Current through Register Vol. 46, No. 45, November 2, 2024

Section 205.22 - Preliminary probation conferences and procedures (juvenile delinquency)

(a) The probation service shall conduct preliminary conferences with any person seeking to have a juvenile delinquency petition filed, the potential respondent and other interested persons, including the complainant or victim, on the same day that such persons appear at a probation service pursuant to section 305.2 (4)(a), 307.1 or 320.6 of the Family Court Act, concerning the advisability of requesting that a juvenile delinquency petition be filed and in order to gather information needed for a determination of the suitability of the case for adjustment. The probation service shall permit any participant who is represented by a lawyer to be accompanied by the lawyer at any preliminary conference.

(b) During the preliminary probation conferences, the probation service shall ascertain, from the person seeking to have a juvenile delinquency petition filed, a brief statement of the underlying events and, if known to that person, a brief statement of factors that would be of assistance to the court in determining whether the potential respondent should be detained or released in the event that a petition is filed.

(c) In order to determine whether the case is suitable for the adjustment process, the probation service shall consider the following circumstances, among others:

(1) the age of the potential respondent; and

(2) whether the conduct of the potential respondent allegedly involved:

(i) an act or acts causing or threatening to cause death, substantial pain or serious physical injury to another;

(ii) the use or knowing possession of a dangerous instrument or deadly weapon;

(iii) the use or threatened use of violence to compel a person to engage in sexual intercourse, deviant sexual intercourse or sexual contact;

(iv) the use or threatened use of violence to obtain property;

(v) the use or threatened use of deadly physical force with the intent to restrain the liberty of another;

(vi) the intentional starting of a fire or the causing of an explosion which resulted in damage to a building;

(vii) a serious risk to the welfare and safety of the community; or

(viii) an act which seriously endangered the safety of the potential respondent or another person;

(3) whether there is a substantial likelihood that a potential respondent will not appear at scheduled conferences with the probation service or with an agency to which he or she may be referred;

(4) whether there is a substantial likelihood that the potential respondent will not participate in or cooperate with the adjustment process;

(5) whether there is a substantial likelihood that, in order to adjust the case successfully, the potential respondent would require services that could not be administered effectively in less than four months;

(6) whether there is a substantial likelihood that the potential respondent will, during the adjustment process:

(i) commit an act which, if committed by an adult, would be a crime; or

(ii) engage in conduct that endangers the physical or emotional health of the potential respondent or a member of the potential respondent's family or household; or

(iii) harass or menace the complainant, victim or person seeking to have a juvenile delinquency petition filed, or a member of that person's family or household, where demonstrated by prior conduct or threats;

(7) whether there is pending another proceeding to determine whether the potential respondent is a person in need of supervision, a juvenile delinquent or a juvenile offender;

(8) whether there have been prior adjustments or adjournments in contemplation of dismissal in other juvenile delinquency proceedings;

(9) whether there has been a prior adjudication of the potential respondent as a juvenile delinquent or juvenile offender;

(10) whether there is a substantial likelihood that the adjustment process would not be successful unless the potential respondent is temporarily removed from his or her home and that such removal could not be accomplished without invoking the court process; and

(11) whether a proceeding has been or will be instituted against another person for acting jointly with the potential respondent.

(d) At the first appearance at a conference by each of the persons listed in subdivision (a) of this section, the probation service shall inform such person concerning the function and limitations of, and the alternatives to, the adjustment process, and that:

(1) he or she has the right to participate in the adjustment process;

(2) the probation service is not authorized to and cannot compel any person to appear at any conference, produce any papers or visit any place;

(3) the person seeking to have a juvenile delinquency petition filed is entitled to have access to the appropriate presentment agency at any time for the purpose of requesting that a petition be filed under article 3 of the Family Court Act;

(4) the adjustment process may continue for a period of two months and may be extended for an additional two months upon written application to the court and approval thereof;

(5) statements made to the probation service are subject to the confidentiality provisions contained in section 308.1 (6) and (7) of the Family Court Act; and

(6) if the adjustment process is commenced but is not successfully concluded, the persons participating therein may be notified orally or in writing of that fact and that the case will be referred to the appropriate presentment agency; oral notification will be confirmed in writing.

(e) If the adjustment process is not commenced:

(1) the record of the probation service shall contain a statement of the grounds therefor; and

(2) the probation service shall give written notice to the persons listed in subdivision (a) of this section who have appeared that:

(i) the adjustment process will not be commenced;

(ii) the case will be referred to the appropriate presentment agency; and

(iii) they are entitled to have access to the presentment agency for the purpose of requesting that a petition be filed under article 3 of the Family Court Act.

N.Y. Comp. Codes R. & Regs. Tit. 22 § 205.22