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New York's Raise the Age Law and the Adolescent Offender Category

On April 10, 2017, the New York State’s Governor Cuomo signed new legislation raising the age of criminal responsibility from 16 to 18 years of age. The law will be implemented in two stages: on October 1, 2018, when the presumptive age for juvenile accountability is raised to 16-years-old and then on October 1, 2019 when the age is raised again to 17-years-old. The law is designed to ensure that young people in New York State who commit non-violent crimes receive intervention and evidence-based treatment instead of being punished in the criminal justice system. What this means is that as of October 1, 2019, New York will no longer automatically prosecute 16- and 17-year-olds as adults.

One area where the law will change concerns Parental Notification. Once in effect, parents must be notified when their children are arrested and question of young offenders must take place in age-appropriate settings and for developmentally appropriate periods of time. Additionally, the questions must have parental involvement, including the waiving of Miranda rights.

The Adolescent Offender Category

The Raise the Age legislation creates a new category titled “Adolescent Offender (AO)”. AOs are defined as 16- or 17-years-olds who are accused of committing a felony-level crime. These individuals have their cases heard in the Youth Part of Criminal Court. If the judge determines there is a need for pre-trial detention, AOs will be held in the newly created “specialized secure juvenile detention facilities for older youth.”

In fact, young people will no longer be permitted to be housed in adult facilities or jails. They will be placed in specialized juvenile detention facility certified by the State Office of Children and Family Services.

Removal to Family Court

Violations:

Violations will continue to be heard in adult criminal/local courts under the law.

Misdemeanors:

All misdemeanor cases (except for Vehicle and Traffic Law misdemeanors) will be heard by the Family Court in accordance with the Family Court Act, which sets forth the procedures for adjustment and confidential records.

Felonies:

All felony cases will start in the Youth Part of the adult criminal court.

For AOs, there is a presumption that the case will be removed to Family Court. This removal can be accomplished in two ways.

First, in cases where a violent felony is involved, the AO must pass a three-part test in order for the case to be removed to Family Court. The three factors considered include: (1) whether the defendant used a firearm or deadly weapon; (2) whether the offense was a sex crime; or (3) whether the individual caused significant physical injury. If none of these are present, and the District Attorney fails to prove the existence of extraordinary, circumstances, the case will be handled in Family Court.

Second, all cases involving non-violent felonies will be transferred from the Youth Part to the Family Court. However, the District Attorney may file a motion within 30 days to prove the existence of extraordinary circumstances, which would prevent the removal of the case to Family Court. Upon the filing of a motion, a hearing may be held and at the conclusion of the hearing, the judge must decide the matter within 5 days.

AOs in Family Court will be treated the same as current juvenile cases.

Age-Appropriate Services

Probation Case Planning

AOs diverted to Family Court will be eligible for adjustment services through probation. These programs will be tailored to the specific needs of each individual.

Program Treatment Model

Youth rehabilitative services will operate under the Program Treatment Model. Each youth will have access to specialized therapeutic programs to develop cognitive skills. Academic transition plans will be developed with the AO student and the school psychologist to transition the student to education programs, vocational training, and/or employment opportunities. Also, substance abuse treatment will be offered to all youth who require it.

Re-Entry and Discharge Planning

The Department of Correction and Community Supervision, County Re-Entry Task Forces, and the Office of Children and Family Services (OCFS) will jointly administer discharge planning services. These services include family reintegration, housing assistance, mental health and medical care, employment support, and educational assistance.

Sealing Provision

The Raise the Age legislation provides certain individuals previously convicted of a crime with the opportunity to have their criminal record sealed. If an individual remains crime free for 10 years, they can apply to have their record sealed. Individuals who were convicted of two or more felonies, a sex offense, violent felony, or other serious felonies will not be eligible to have their records sealed.

Youth Offender (YO)

The new law does not change the current Youthful Offender laws or procedures.

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