MEMORANDUM
TO: New York State Criminal Justice Executives
FROM: Michael C. Green
Executive Deputy Commissioner, Division of Criminal Justice Services
SUBJECT: Raise the Age Legislation
Background
The State Fiscal Year 2017-18 Budget included legislation to raise the age of criminal responsibility to 18 years of age.1 This newly enacted legislation includes statutory amendments that a) create a new Adolescent Offender (AO) classification; b) establish a new Youth Part in the Superior Court; and c) require misdemeanor cases, with the exception of Vehicle and Traffic Law (VTL) misdemeanors, to be heard in Family Court. All statutory amendments pertaining to 16-year-olds take effect October 1, 2018, and for 17-year-olds are effective October 1, 2019.
Outlined below and in the attached chart is a summary of how the new legislation will impact law enforcement officers when taking 16- and 17-year-old offenders into custody.
16- And 17-Year-Old Charged With A Misdemeanor, Traffic Infraction, Or Violation Misdemeanors:
(Other than VTL Misdemeanors and Misdemeanors accompanied with a Felony Charge) Upon the relevant effective dates, a 16- or 17-year-old arrested for a misdemeanor2 will be considered a juvenile delinquent and the case heard in Family Court.3 Law enforcement should utilize the same arrest procedures for juvenile delinquents when processing 16- and 17-year-olds charged with a qualifying misdemeanor and should use the juvenile delinquent custody determinations set forth in Family Court Act 305.2. If, pursuant to Family Court Act 305.2(4)(b), law enforcement takes the child directly to family court and court is not in session, the statute now requires the youth be taken to the most accessible magistrate, if any, designated by the Appellate Division of the Supreme Court. A 16- or 17-year-old may not be housed with adults in these circumstances.4
VTL Misdemeanors:
If a custodial arrest is made, a 16- or 17-year-old charged with a VTL misdemeanor should continue to be processed as an adult5 since the case will be heard in adult criminal/local court.6
Traffic Infractions and Violations:
Like VTL misdemeanors, the process will remain the same for any 16- and-17-year-old charged with a traffic infraction7 or a violation.8 The case will be heard in adult criminal/local court.9 Note that, unlike persons 15 years of age or less, 16- and 17-year-olds may still be charged with violations and traffic infractions.
16- And 17-Year-Old Charged With Felonies - Adolescent Offenders (AOs)
Violent Felonies10 and Non-Violent Felonies:11
A 1612- or 1713- year-old charged with a felony is an AO.14 AOs will be arraigned15 in the newly established Youth Part of the Superior Court, or when Court is not in session they must be brought before the designated magistrate for arraignment.16
The Criminal Procedure Law authorizes a police officer to issue appearance tickets, instead of a physical arrest, when a person is charged with most E felonies as designated in CPL § 150.20. Nearly one third of felony arrests of 16- and 17-year-olds are for Class E felonies that, pursuant to statute, are eligible for issuance of an appearance ticket.
Misdemeanor Charges Accompanied with a Felony: A 16- or 17-year-old charged with a misdemeanor and a felony, alleged to have been committed as a part of the same criminal transaction, will be considered an AO and processed as an adult prior to arraignment in the Youth Part.17
13- To 15-Year-Olds
Juvenile Delinquents (JD): The processing and custody determination18 of juvenile delinquents ages 13 to 15 will generally remain the same. However, as mentioned previously, in custodial arrest situations where Family Court is not in session, the statute now requires law enforcement to take the child before the most accessible magistrate.19
Juvenile Offenders (JO):
The processing of JOs,20 will remain the same for youths ages 13 to 15 who commit certain qualifying serious crimes. However, all 13- to 15-year-olds charged as JOs will now have their cases adjudicated in the Youth Part - when the Youth Part is not in session they must be brought before a designated magistrate for arraignment.21 Arrest Procedures
Arrest on a Warrant: CPL § 120.30 has been amended to add that an AO or JO arrested on a warrant issued from the Youth Part must be brought before the Youth Part of the Superior Court in which the warrant is returnable, provided that court is in session. If the Youth Part is not in session, the officer must bring the individual before the designated magistrate for arraignment purposes. Fingerprinting:
Traffic Infractions, Violations, and Misdemeanors Similar to adults, 16- and 17-year-olds charged with traffic infractions and violations may not be fingerprinted. Misdemeanors (other than VTL misdemeanors) will no longer be printable offenses for 1622- or 1723-year-olds since they will be considered JDs.24 As such, any attempts to submit fingerprints via Livescan for these non-printable offenses will be rejected.
Felonies or Fingerprintable VTL Misdemeanors
A 16- or 17-year-old charged with a felony or a VTL printable misdemeanor should still be fingerprinted pursuant to CPL § 160.10(1). Parental Notification: A parent or other person legally responsible for the 1625- or 1726-year-old’s care must be immediately notified that the individual has been arrested, and the location of the facility where he or she is being detained.27
Questioning:
If questioning of a 1628- or 1729-year-old is to occur, it must be held in a facility suitable for the questioning of a juvenile pursuant to the requirements of 22 N.Y.C.R.R. 205.20. The youth may also be questioned for a reasonable period of time at his or her residence, upon the consent of a parent or other legally responsible person. Miranda rights are always required during a custodial interrogation, regardless of suspect age. If present during questioning, a parent or other person legally responsible for the care of the juvenile, must also be advised of the Miranda warnings.30
Video Recording of Custodial Interrogations:
A custodial interrogation must31 be recorded if a 16- or 17-year-old, regardless of classification, commits a qualifying offense.32
