Kings County Criminal Bar Association STATE OF THE COURTS 2019 CLE PROGRAM January 24, 2019

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1 Kings County Criminal Bar Association STATE OF THE COURTS 2019 CLE PROGRAM January 24, 2019 HON. MATTHEW D EMIC ADMINISTRATIVE JUDGE KINGS COUNTY SUPREME COURT, CRIMINAL TERM 1 The Excellence Initiative and What to Expect in Creation of New Felony Arraignment Part ARR o Part ARR will pilot pretrial jail reduction strategies for indicted defendants in Kings County Supreme Court beginning February 11, Jail Reduction Strategies Pilot Program in Part ARR - Supervised Release Programs o A supervised release staff member will be available to perform a paper screening of defendants who are charge eligible and coordinate with the Court and defense attorneys o Eligible Offenses - Alternative Forms of Bail o Court staff will be trained to process all 9 forms of statutory bail pursuant to C.P.L Case Processing Guidelines 1

2 o Guidelines will be in place intended to reduce pretrial detention time and unnecessary delays - Ongoing Pilot Review o Periodic stakeholder meetings will be held to obtain feedback, address concerns and adjust operations, as necessary - Q & A session HON. MICHAEL YAVINSKY SUPERVISING JUDGE NEW YOR CITY CRIMINAL COURT, KINGS COUNTY 1. New Judges in Criminal Court 2. Court Part Changes - MBTC/STEP returns to 120 Schermerhorn Street - Trial-1 and TP-4 moving - AP-5 will become AP-3-3. The Excellence Initiative - Review of Arrest to Disposition/Trial statistics from 2016 through What does this mean in 2019 o Be Ready to resolve or try your case o Standards and Goals targets o Update on Case Conferencing Program o Trial parts available in Supreme and Criminal Courts - Q & A session 2

3 HON. CRAIG S. WALKER PRESIDING JUDGE YOUTH PART KINGS COUNTY SUPREME COURT, CRIMINAL TERM 1. Brief introduction on Raise the Age (RTA) Law 2. Youth Part established CPL Post Raise the Age October 1, 2018 Implementation a. Current statistics 4. Courtroom Layout 5. Procedures upon arrest 6. First appearance Accessible Magistrate 7. First appearance Youth Part Judge a. Removal/Hearing procedures 8. Nuts and Bolts and Guidelines for Practice in YP-1 9. Program Provider Contact List 10. Current Decisions 11. Q & A session 3

4 Brief Intro to Raise the Age Law On April 10, 2017, Governor Andrew Cuomo signed into law, Raise the Age legislation that was included as part of the State Budget. This increased the age of criminal culpability, 16-year olds as of October 1, 2018, and 17-year olds as of October 1, 2019, to bring New York State in line with laws nationally. But why? Well, 1. The U.S. Supreme Court: firmly established that the Criminal Justice System may not treat youth, under the age of eighteen, who commit crimes in the same manner as they treat adults. 2. Science as well as our own experiences and good sense tell us that children, even of this age, are still immature and highly subject to peer influence. 3. Adolescents lack sound judgment and engage in risky behavior without consideration of consequence, as their brain development is not yet complete. 4. Adolescents are uniquely ripe for intervention and rehabilitation. 5. Young people who are prosecuted in the juvenile justice system have a lower rate of recidivism. Three Supreme Court cases transformed the juvenile justice system by requiring that the traditional criminal protections of due process and proof beyond a reasonable doubt be applied in juvenile court. The Court's decisions in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) attacked the juvenile courts' lack of uniformity in sentencing and rejected the idea of "the delinquent." As Justice Abe 4

5 Fortas wrote in Gault, this label carried "only slightly less stigma than the term 'criminal' applied to adults." The Juvenile Justice and Delinquency Prevention Act of 1974 (P.L , 88 Stat. 1109) was the first major federal legislation to shape the content of state policy on the juvenile court system. It was enacted in response to sustained criticism of the juvenile court system that reached its peak based on the three Supreme Court decisions. Through this Act, Congress created federal standards for the treatment of juvenile offenders and provided financial incentives for state systems to comply with those standards. The Act had two main goals: (1) to remove juveniles from adult jails and prisons, and (2) to end the practice of using the juvenile court system as a means of sending both criminal and noncriminal minors to prisonlike institutions for rehabilitation. The theory of rehabilitation holds that people's behavior, especially young people's behavior, can be changed so that individuals can reenter and function normally in society. Congress passed the Juvenile Justice and Delinquency Prevention Act to overhaul the failing practice of intervention and rehabilitation. State juvenile justice systems would no longer institutionalize juveniles for supposedly "pre-criminal" offenses. The Act defined a juvenile as someone under the age of eighteen, and juvenile delinquency as a violation of the law by a juvenile (which if committed by an adult would be treated as a crime). The Act established a system for diverting juveniles away from adult prison through "grants to states and local governments to assist them in planning, establishing, operating, coordinating, and evaluating projects... for the development of more effective education, training, research, prevention, diversion, treatment, and rehabilitation programs in the area of juvenile delinquency and programs to improve the juvenile justice system." 5

6 What was The Effectiveness of the Act? The Act has had mixed results in achieving uniform sentences for juvenile offenders. Many states have attempted to avoid diverting youth from adult prisons by permitting prosecutors to choose whether to try minors in the juvenile or adult justice systems. Other states exclude serious criminal offenses from juvenile court. The emphasis on trying juveniles as adults has undermined the Act's goal of keeping juveniles out of adult prisons, and, in fact, has greatly increased the number of juveniles tried in adult courts and present in the general prison population. In relative terms, however, diversion has worked. Through the 1980s and 1990s, the juvenile prison population grew at one-quarter the rate of the young adult population. In the late twentieth century the idea of rehabilitation gave way to an emphasis on punishment of crime in general, and youth crime was increasingly viewed simply as crime. The Act was part of this shift in attitudes, but it is unclear whether it was directly responsible for the trend. Accordingly, the Act's greatest legacy may be the humane treatment of young offenders through diversion from prison and supervision in the community. Effective October 1, 2018; Youth Part established CPL The chief administrator of the courts is hereby directed to establish, in a superior court in each county of the state, a part of the court to be known as the youth part of the superior court for the county in which such court presides. Judges presiding in the youth part shall be family court judges, as described in article six, section one of the constitution. To aid in their work, such judges shall receive training in specialized 6

7 areas, including, but not limited to, juvenile justice, adolescent development, custody and care of youths and effective treatment methods for reducing unlawful conduct by youths, and shall be authorized to make appropriate determinations within the power of such superior court with respect to the cases of youths assigned to such part. The youth part shall have exclusive jurisdiction in all proceedings in relation to juvenile offenders and adolescent offenders, except as provided in this article or article seven hundred twenty-five of this chapter. 2. The chief administrator of the courts shall also direct the presiding justice of the appellate division, in each judicial department of the state, to designate judges authorized by law to exercise criminal jurisdiction to serve as accessible magistrates, for the purpose of acting in place of the youth part for certain first appearance proceedings involving youths, as provided by law. When designating such magistrates, the presiding justice shall ensure that all areas of a county are within a reasonable distance of a designated magistrate. A judge authorized to preside as such a magistrate shall have received training in specialized areas, including, but not limited to, juvenile justice, adolescent development, custody and care of youths and effective treatment methods for reducing unlawful conduct by youths. Post Raise the Age October 1, 2018 Implementation 1. According to recent data, overall citywide arrest declined by over 20%. 2. Moreover, declines for 16 and 17 years olds decreased by a little over 40%. 3. However, arrest for juveniles, 15 years and younger, only decreased by about 20%. 4. Misdemeanor arrests across all ages declined by a little over 25%. 7

8 5. Non-violent and violent felonies declined by about 10% each. Current statistics 1. Statewide, from October 1, 2018 January 6, 2019, there were 565 Felony Youth Court Dockets created. 2. Bronx, Kings, New York, Queens, and Richmond accounted for 331 FYC s, more than half. 3. Kings County had the most at 128, Felony Youth Court Dockets. (About 42 a month) 4. Statewide, approximately 88% of Adolescent Offenders were removed to Family Court or to Probation for possible adjustment. 5. In NYC, nearly all Adolescent Youths that are removed to Family Court are sent to Probation for possible adjustment, while a very small percentage are sent to Family Court directly for a first appearance (98% v 2%). 6. Top 5 most common charges Adolescent Offender (in descending order) a. PL Rob 2 Aided by Another b. Pl Grand Larceny 4 c. Pl Rob 1 Use of Dangerous Instrument d. Pl Assault 2 e. Pl Rob 2 Physical Injury 7. Top 5 most common charges Juvenile Offender (in descending order) a. Pl Rob 1 Use of Dangerous Instrument b. PL A Rob 2 Physical Injury c. Pl Assault 1 d. Pl Rob 1 Displays Firearm e. Pl Attempted Murder 8

9 Courtroom Layout 1. Judge designated an Acting Supreme Court Justice and Family Court Judge. 2. Resource Coordinator 3. Dedicated ADA s 4. Dedicated Providers Legal Aid Society; Brooklyn Defender Services, 18-B attorneys 5. Program Representatives 6. Probation 7. Presentment Agency/Corporation Counsel 8. Permanent Courtroom Staff Procedures upon arrest 1. Parent/Guardian must be notified. 2. During normal working hours, JO & AO brought before the Youth Part after initial screening by NYPD and Criminal Justice Agency (CJA). 3. After normal working hours, weekends, and/or holidays, JO & AO brought before the Most Accessible Magistrate where release/remand/bail determinations shall be made. (All bail options are available, however there is a presumption to release on all non-violent felonies). Cases will then be adjourned to the first available business day in the Youth Part. *The Accessible Magistrate does not have the authority to adjourn matters directly into Family Court, nor, dispose of the matters, such as setting down for Hearing, Trial, or by Plea. 4. First appearances are considered an Arraignment and Notices should be filed, including Cross-Grand Jury. CPL and time applies, unless expressly waived. 9

10 First appearance Accessible Magistrate I. What is an accessible magistrate? Described in CPL (2) as 1. a Judge; 2. Designated by the PJ of the Appellate Division, in each Judicial Department; 3. Authorized by law to exercise criminal jurisdiction; 4. Will act in place of the youth part for certain first appearance proceedings involving youths; and 5. Must have received training in specialized areas, including but not limited to, juvenile justice, adolescent development, custody and care of youths and effective treatment methods for reducing unlawful conduct by youths. II. Responsibilities of accessible magistrates [CPL (5-a), (8), (3-a), (2)(b) and (1) and FCA 305.2(40(b) and 307.4] 1. Act in place of Youth Part for certain first appearances: a. Arraignment upon arrest AOs & JOs b. Warrant Recalls AOs & JOs c. Pre-Petition Hearings JDs Arraignment: Upon arrest, if not issuing an appearance ticket, AOs & JOs must be brought by police to Youth Part, or if Youth Part is not in session, to Accessible Magistrate. [CPL (5-a) & (3-a)] a. Violations & traffic infractions are excluded proceed pursuant to prior legal practice [CPL (8)] i. Unless Violation arises out of same transaction or occurrence as a crime returnable in Youth Part or Family Court, then tags along 10

11 b. Charging instrument for an AO is called a Felony Youth Complaint c. Counsel Indigent defendants to have counsel including at arraignment i. 16 & 17-year-olds are presumed to be indigent & must have counsel provided to them at arraignment Determine Detention: When Youth Part not in session, arrested youth shall be brought before the Accessible Magistrate to determine whether should be detained. [CPL (1)] a. Presumption of release [CPL (1)(f)] i. Except for Class A Felonies (except controlled substances) or Violent Crimes b. Next appearance must be ordered: i. Must Order Youth to appear at next Youth part session Juvenile Delinquency Pre-Petition hearings What is a Pre-Petition? [FCA 307.3] a. An application to the court seeking immediate relief (e.g., detention or release with conditions). b. Must be filed if Youth is not released by law enforcement. c. Is brought prior to the filing of the accusatory instrument (Petition). d. If later, a Petition is not filed, the Pre-Petition (case) will be dismissed. 11

12 First appearance Youth Part Judge 1. Was defendant arraigned before an accessible magistrate? If so, was there a release with conditions or was a securing order made? 2. Is defendant in court in the custody of the police, on an appearance ticket, or upon direction of an accessible magistrate? Was the defendant remanded to detention by an accessible magistrate? 3. Is there a parent or guardian present in court? If not, were reasonable efforts made to arrange for parent or guardian to appear? What steps are needed to arrange for a parent to appear? 4. Counsel: If counsel has not been retained or assigned by the accessible magistrate, counsel must be assigned prior to arraignment. 5. Arraignment: If the defendant has not been arraigned before an accessible magistrate, arraignment must occur on the felony complaint. 6. Detention decision: Presumption against Detention; Remand to Specialized Secure Detention for AO defendants; Remand to Juvenile Secure Detention for JO defendants. Where does youth live and with whom? Is housing an issue? Is shelter, respite or alternative housing available? Are there alternatives to detention that increase likelihood of a return to court? Release conditions should be provided to the defendant and parent in writing. Is bail appropriate? If so, what is the least restrictive form of bail that will assure return to court? Schedule bail review and consider reduction or alternatives to detention if defendant has been unable to post bail. 12

13 Release if no action by the Grand Jury within 30 days (CPL ). Calendar to monitor. Exceptions: if delay due to defendant s actions or request, or good cause. 7. Does prosecutor and defense counsel agree to a transfer to Family Court at arraignment or first appearance date? If so, defendant and parent/guardian should meet with Probation to coordinate transfer. 8. Probation Voluntary Case Planning: Does the defendant wish to participate in a Probation Voluntary Case Plan? Has defendant and parent/guardian had an opportunity with counsel to conference with Probation? 9. Does defendant request preliminary hearing on the felony complaint? If so, schedule in accordance with CPL Transfer of JO or AO case to Family Court after hearing: if the court determines that there is no reasonable cause to believe that the defendant committed a felony, but there is reasonable cause to believe that the defendant is a juvenile, delinquent case must be transferred to Family Court. For AO charged with non-vfo, non-jo (CPL 1.20 [42]) or class A drug Felony: Does DA object to expedited transfer to Family Court pursuant to CPL [1]? [note: all JO charges are also VFOs] Case may be transferred as early as arraignment before the Youth Part, if DA states no objection will be filed. Court must transfer case to Family Court unless DA files motion to object within 30 calendar days from arraignment. Defense is entitled to reasonable delay to reply. Either party may request an expeditious hearing. Objection must be denied unless DA 13

14 demonstrates extraordinary circumstances exist that should prevent transfer. Court must decide motion to object within 5 days. Decision must include findings of fact and to the extent practicable conclusions of law. If case is transferred to Family Court it is not considered a removal that would make the case ineligible for diversion (but it is still subject to limitations contained in FCA [3], [4] & [8]). For VFOs and non-drug A Felonies: Case must be scheduled no later than 6 calendar days from arraignment for a review by the court of the accusatory instrument per CPL [2]. At 6-day review: The court must review the accusatory instrument and other relevant facts to review whether case should be eligible for transfer under CPL [1]. DA and defense have the opportunity to be heard and submit relevant information. The court shall order that the case proceed pursuant to CPL [1], which allows for transfer subject to DA extraordinary circumstances objection motion, unless the court determines that: 1. The defendant caused significant physical injury to a nonparticipant OR 2. The defendant displayed a firearm, shotgun, rifle or deadly weapon in furtherance of the crime OR 3. The defendant unlawfully engaged in sexual intercourse, oral sexual conduct, anal sexual conduct or sexual contact. 14

15 Where court determines that one or more of the above factors has been proven, the case may not be removed under [1]. For AO charged with VFOs and non-drug A Felonies: Does DA request removal in the interests of justice pursuant to CPL [5]? Even if the defendant has been ordered held for action of the grand jury after a preliminary hearing or upon waiver of the hearing, the court shall remove the case to Family Court after consideration of the statutory interest of justice criteria contained in CPL (same criteria apply to JO youth). If the felony complaint alleges Murder 2 (PL ), Rape 1 (PL [1]), Criminal Sexual Act 1 (PL [1]) or an armed felony defined by CPL 1.20 [41] [a] one or more additional factors must also be present to justify removal: mitigation circumstances relating to the manner in which the crime was committed; where the defendant was not sole participant, the defendant s participation was relatively minor or possible deficiencies in the proof (CPL [5]). The court may make such inquiry relative to the motion as it deems necessary, including holding a hearing. If removal is ordered, the court and DA must state relevant factors on the record. JO defendants have their own removal procedures pursuant to CPL and and are not subject to 6-day reviews or transfers subject to DA objections based on exceptional circumstances. a. Does the defendant request a preliminary hearing? 15

16 Removal to Family Court after preliminary hearing is required if there is no reasonable cause to believe that the defendant committed a crime for which he or she is criminally liable, but reasonable cause has been established for a juvenile delinquency charge. b. Does the defendant request pre-indictment removal? If a preliminary hearing has not commenced or the defendant has not waived a hearing, the defendant may move for a pre-indictment removal per CPL [5] per interest of justice factors outlined in CPL [2]. 1. CPL procedure for motion to dismiss indictment governs, which places the burden on the defendant to prove the essential facts by the preponderance of the evidence. 2. DA consent is not required unless the defendant is charged with Murder 2, Rape 1 (PL [1]), Criminal Sexual Act 1 (PL [1]) or an armed felony defined by CPL 1.20 [41 [a]. In that case the court must consider additional other enumerated factors. 3. The court may consider the motion papers, documentary evidence submitted and may hold a hearing if needed. 4. If the defendant is unsuccessful, no additional motion to remove in the furtherance of justice is permitted by the defendant (CPL [6] [d]). c. Does the DA request pre-indictment removal pursuant to CPL [4]? 16

17 The court must order removal on motion of the DA if after consideration of the statutory factors in CPL [2] the court determines that removal is in the interest of justice (CPL [4]). 1. If the defendant is charged with Murder 2, Rape 1 (PL [1]), Criminal Sexual Act 1 (PL [1]) or an armed felony contained in CPL 1.20 [41] [a], the court must consider additional enumerated factors. 2. The court may make such inquiry as it deems necessary, including holding a hearing. d. Does any party (or the court) request pre-indictment removal in the furtherance of justice pursuant to CPL ? If the defendant has already made a pre-indictment removal motion in the furtherance of justice under CPL , the court or any party (although not the defendant according to CPL [6] [d]) may move for a preindictment removal in the furtherance of justice. 1. CPL procedure for motion to dismiss indictment governs. 2. DA consent is not required unless the defendant is charged with Murder 2, Rape 1 (PL [1]), Criminal Sexual Act 1 (PL [1]) or an armed felony defined by CPL 1.20 [41 [a]. In that case, the court must consider additional enumerated factors. 3. The court may consider the motion papers, documentary evidence submitted and may hold a hearing if needed. 17

18 Nuts and Bolts and Guidelines for Practice in YP-1 I. Individual Case Checklist A. What is defendant s age/nature of offense/prior contacts -JO? AO? Check age against arrest date/tpo -Read complaint. Is the charge an armed felony offense, violent or nonviolent? -For JO defendant, check that charge is applicable felony PL 30.00(2) -Read rap sheet. Does defendant have contacts with Family Court? Order Family Court dispositional records? -Is defendant YO eligible? NOT eligible if: defendant previously granted Youthful Offender Treatment, charged with A-I or A-II, or has an adjudication in family court for a designated felony act? CPL ; FCA Will court change bail from criminal court arraignment? B. What type of program and conditions for release? -In-home family therapy or on-site programming? -Age appropriate curfew -School attendance 18

19 -Drug treatment -Mental health? -Family dynamic? -What if defendant is living in foster care or shelter? -What types of re-arrests warrant what type of response? -Is juvenile already in Family Court close-to-home placement and if so, should juvenile remain there? C. Is this case eligible for removal or transfer to Family Court? II. -Non-violent -Significant physical injury -Other extraordinary circumstances -Removal of JO to Family Court pursuant to criteria in CPL General Disposition Issues A. Is the defendant a juvenile offender (JO)? Is defendant 13 to 15 years old? If so, juvenile offender sentencing applies. CPL 1.20(42) B. Is defendant an adolescent offender (AO)? C. Is the defendant eligible for Youthful Offender (YO) treatment? Court must consider YO in every eligible case. Reasons to be placed on record. CPL Under what circumstances will the Court offer YO over People s objection? People v. Rudolph, 21 N.Y.3d 497 (2013) (Ct must consider YO even if agreed-upon plea offer by prosecution and defendant does not inquire); People v. Middlebrooks, 25 N.Y.3d 516 (2015) (same rule for armed felony offenses, and designated sexual offenses) -Is this an armed felony offense, Rape 1st, Criminal Sexual Act 1st or Agg Sexual Abuse? CPL

20 - If so, are there mitigating circumstances that bear directly on the manner in which the crime was committed or where defendant is not sole/primary actor? -If not an armed felony offense/sex related crime, will the interest of justice be served by relieving eligible youth of onus of criminal record? CPL D. How should a program plea be structured? Three options: 1. An open plea at the start of the case 2. Placement in program without a plea so Court can monitor progress. 3. For JO, plea to a Juvenile Delinquency offense, with sentencing in Family Court. -Probation vs. Conditional Discharge -Will defendant benefit from being put on probation? Three to five years? -Possible termination of probation early if defendant does very well. -Is a CD appropriate - three years on a felony - impose conditions? - NO mandatory surcharges for JOs. People v. McFadden, 205 A.D.2d 560 (2nd Dept 1994); People v Stump, 100 A.D.3d 1457 (4th Dept 2012). 20

21 Youth Part Programs-Contact list Ena Cadesca Resource Coordinator to Hon. Craig S. Walker Kings County Supreme Court- Criminal Term 320 Jay Street Brooklyn, New York, Phone: (347) Fax: (212) Acadia Network Adeleke Owniwinde, Director of Community Relation (718) Andrew Clark Youth Program (212) Brownsville Community Justice Center Erica McSwain, Interim Director (347)

22 Bendel Youth Empowerment Program (718) Bronx Council of the Arts (718) BOOM! Girls Program (718) Camelot Susan Berstein, Director (718) Joe Alexander, Program Manager (718)

23 Community Connections for Youth Kevin (347) CASES Charlotte Johnson, Supervisor of Supreme and family Court (718) Criminal Justice Agency (CJA) Kim Moment, Operations Manager (718) Center for Community Alternatives (CCA) (718) ext. 256 Alice Hamblett Department of Youth & Community Development - New York City 23

24 Esperanza Patricia Ortiz, Director (646) Exalt Youth Gisele Castro, Director (347) ext. 4 Giselecastro@exaltyouth.org Families Rising-NY Foundling Cell Mollie Beebe Mollie.Beebe@NYFoundling.org Shari Norton Shari.Norton@NYFoundling.org Fortune Society Kristina Sapaskis, Director (347) ksapaskis@fortunesociety.org 24

25 Friends of Island Academy Monica Smith, Director (212) Fritz Pelham House (212) G.M.A.C.C Inc Daron Goodman, Program Manager (646) Graham Windham Preventive Program (212) Brooklyn (718) Bronx graham-windham.org Liahona Boys Program (866) liahonaboysprogram.com 25

26 NYC Department of Youth & Community Development Jobs... New York City Department of Youth & Community Development... NYC Department of Youth Community Development - R.A.I.N. Outreach House Andrea Persaud, Youth Program Coordinator (718) Andreapersaud@opny.org The Osborne Association Andrea Goupal-Singh, Program Director (718) agoupalsingh@asborneny.org Promesa Youth Johanna Solano, Director josolano@promesa.org 26

27 Phoenix House phoenixhouse.org (718) Queens Phoenix House - Upper West Side (888) Still Water Academy (866)