N.Y. Comp. Codes R. & Regs. tit. 9 § 356.6

Current through Register Vol. 46, No. 50, December 11, 2024

Section 356.6 - Probation Intake

(a) Prior to commencing eligibility and suitability determination, probation shall review the complaint to determine whether it is within the scope of FCA article 3.

(b) Eligibility Criteria: Cases within the scope of FCA article 3 shall be considered eligible for adjustment services, except when one or more of the below-listed exclusionary criteria are present:

(1) the potential respondent insists upon accessing the presentment agency for the purpose s of having a petition filed, or declines, or is unavailable to participate in the adjustment process;

(2) the presentment agency and the family court have not given written approval for adjustment, where such approval is required by the FCA §308.1 (4);

(3) the family court has not given written approval where the alleged conduct of the potential respondent would constitute a designated felony act as defined by FCA § 301.2(8), as required by FCA §308.1(3); and

(4) the family court has not given written approval for adjustment where the alleged conduct of the potential respondent, if committed by an adult, would constitute a class A or B felony which is not a designated felony act.

(c) Suitability Criteria: In order to determine whether the case is suitable for the adjustment process, the probation service shall :

(1) consider the views of the complainant and the impact of the alleged act or acts of juvenile delinquency upon the complainant and upon the community; and

(2) consider the provisions of the URFC §205.22(c).

(d) Detention Cases:

(1) Coordinate local efforts for the screening of appropriate cases for release, identifying alternative to detention programs and services, and communication with law enforcement and the detention agency. When a youth is detained and the facility is located outside of the county of jurisdiction, the probation department in the jurisdiction where the youth is detained may assist in screening the youth for consideration for release;

(i) Determine eligibility for probation intake and adjustment services in accordance with FCA provisions;

(ii) Make a determination as to whether alternatives to detention are appropriate to avoid remand of a youth;

(iii) Determine suitability for probation intake and adjustment services in accordance with URFC provisions;

(iv) Consider the results of a completed state-approved detention risk assessment instrument on the instant offense;

(2) The fact that a youth is detained prior to the filing of a petition shall not, where authorized, preclude the probation department from adjusting a case. Where feasible, the probation department shall coordinate with the detention administrator to have the youth released on an appearance ticket when screened and determined to be eligible and suitable for adjustment services under Article 3 of the Family Court Act unless the youth is remanded on a Family Court order;

(3) When a youth is released from detention before filing of a petition, and probation operates the detention facility, the agency responsible for operating a detention facility shall issue a Family Court Appearance Ticket to the youth and the person legally responsible for the youth's care, in accordance with FCA §§ 307.1 and 307.3(3). Such Family Court Appearance Tickets shall be issued unless special circumstances exist which require the detention of the youth, including:

(i) there is a substantial probability that the youth will not appear or be produced at the appropriate probation department at a specified time and place; or

(ii) there is a serious risk that, before the petition is filed, the youth may commit an act which, if committed by an adult, would constitute a crime.

(4) When a youth is being considered for release from detention before filing of a petition, and probation does not operate the detention facility, Probation shall:

(i) Seek the release of detained youth eligible and suitable for Probation intake and adjustment services;

(ii) Seek the issuance of a Family Court Appearance Ticket from the agency responsible for operating a detention facility in accordance with FCA §§ 307.1 and 307.3(3). A Family Court Appearance Ticket shall be issued unless special circumstances exist which require the detention of the youth, including:

(a) there is a substantial probability that the youth will not appear or be produced at the appropriate probation department at a specified time and place; or

(b) there is a serious risk that, before the petition is filed, the youth may commit an act which, if committed by an adult, would constitute a crime.

(5) If a youth is detained or about to be detained, and the Probation Department's initial review reveals the case may be appropriate for release or alternative to detention, the Probation Department shall conduct a screening interview with the youth alleged to be a juvenile delinquent to determine eligibility and suitability for adjustment services.

i. Screening and interviewing to determine suitability for intake and adjustment services shall take place at the earliest possible time after arrest.

ii. Probation shall deploy staff and services in a manner consistent with achieving the earliest possible intervention and release.

iii. The interview should take place as soon as possible to affect the earliest possible release decision. For youth detained after regular business hours, such interviews shall take place within two (2) business days of detention.

(e) Where it is determined that the complaint is within the scope of FCA article 3, and both eligible and suitable for adjustment services probation shall conduct an initial conference and provide such services in accordance with URFC. This shall include:

(1) Making reasonable efforts to confer with any persons seeking to have a juvenile delinquency petition filed, the potential respondent and other interested persons including the victim or complainant, on the same day that such persons appear at the probation department 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;

(2) Permitting any youth who is represented by an attorney to be accompanied by the attorney at any preliminary conference;

(3) Ascertaining from the complainant pursuant to URFC, a brief statement of the underlying events and a brief statement of factors, if known to that person that would assist the court in determining whether the potential respondent should be detained or released in the event that a petition is filed;

(4) Promptly informing the complainant, the potential respondent, parent or other person legally responsible for his/her care, or any other interested person(s) at the first conference regarding the petition and Family Court processes as set forth in the URFC and explain the benefits of probation intake and adjustment and the services that may be made available to address the needs of the youth, as compared to proceeding directly to petition; and

(5) For youth determined to be eligible and suitable for adjustment services, the probation department may conduct a pre-screen assessment at the Initial Intake Conference using a state approved, risk and need assessment instrument that measures the risk of recidivism. This assessment may be completed by a Probation Assistant, Probation Officer, or an employee of the Probation department specially trained and approved by the Probation Director, and under the direct oversight and review by a Probation Supervisor.

(6) Informing the complainant where it appears to probation that the court would not have jurisdiction over the case, and such case is thereby excluded from any opportunity for adjustment. In such instances, the juvenile delinquency complaint filed may be referred to a presentment agency for the purpose of requesting that a petition be filed with the court. The reason for excluding the complaint for consideration for adjustment shall be documented in the case record. The record shall contain all required documentation, including a statement of the grounds for not commencing adjustment, and a copy of the written notification to the complainant, pursuant to URFC.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 356.6

Amended New York State Register March 27, 2019/Volume XLI, Issue 13, eff. 3/27/2019

Amended New York State Register April 17, 2024/Volume XLIV, Issue 16, eff. 4/17/2024