N.Y. Comp. Codes R. & Regs. tit. 9 § 516.1

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

Section 516.1 - General provisions

(a) Scope, title.

(1) In general. The administration of military justice in the State Military Forces is governed by relevant sections of the State Military Law (ML), article 7 and this Chapter with this Part being the rules for courts-martial.

(2) Title. These rules may be known and cited as the New York Rules for Courts-Martial (N.Y.R.C.M.).

(b) Purpose and construction.

(1) Purpose. These rules are intended to provide for the just determination of every proceeding relating to trial by court-martial.

(2) Construction. These rules shall be construed in such a manner as to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay; and shall be construed consistently with the principles of law and rules of evidence generally recognized in the trial of cases in the courts-martial of the United States, where not contrary to or inconsistent with the code. See 130.36, ML.

(c) Definitions and rules of construction. The following definitions and rules of construction apply throughout the Chapter, unless otherwise expressly provided.

(1) Accuser means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.

(2) Active State duty means full time military duty in the active service of the State ordered by the Governor or under his authority, and while going to and returning from such duty.

(3) Code means the State Code of Military Justice, set forth in ML, article 7.

(4) Commander means a commissioned officer in command or an officer in charge except in Part 519 of this Title or unless the context indicates otherwise.

(5) Commanding officer includes only commissioned officers.

(6) Convening authority includes a commissioned officer in command for the time being and successors in command.

(7) Copy means an accurate reproductions however made. Whenever necessary and feasible, a copy may be made by handwriting.

(8) Court-martial includes, depending on the context:

(i) the military judge and members of a general or special court-martial; or

(ii) the military judge when a session of a general or special court-martial is conducted without members under 130.39, ML; or

(iii) the military judge when a request for trial by military judge alone has been approved under N.Y.R.C.M. 903; or

(iv) the members of a special court-martial when a military judge has not been detailed; or

(v) the summary court-martial officer.

(9) Days. When a period of time is expressed in a number of days, the period shall be in calendar days, unless otherwise specified. Unless otherwise specified, the date on which the period begins shall not count, but the date on which the period ends shall count as one day.

(10) Detail means to order a person to perform a specific temporary duty, unless the context indicates otherwise.

(11) Enlisted member means a person in an enlisted grade in any force of the organized militia.

(12) Explosive means gunpowders, powders used for blasting, all forms of high explosives, blasting materials, fuses (other than electrical circuit breakers), detonators, and other detonating agents, smokeless powders, any explosive bomb, grenade, missile, or similar device, and any incendiary bomb or grenade, fire bomb, or similar device, and any other compound, mixture, or device which is an explosive within the meaning of 18 U.S.C. and 232(5) or 844(j).

(13) Firearm means any weapon which is designed to or may be readily converted to expel any projectile by the action of an explosive.

(14) General officer means an officer of a force of the organized militia serving in or having the grade of general, lieutenant general, major general, brigadier general, admiral, vice admiral, rear admiral, or commodore.

(15) Grade means a step or degree, in a graduated scale of office or military rank, that is established and designated as a grade by law or regulation.

(16) Includes means "includes but is not limited to."

(17) Joint in connection with military organization connotes activities, operations, organizations, and the like in which elements of more than one military service of the same nation participate.

(18) Judge advocate means an officer of a force of the organized militia who is member of the judge advocate general's corps or who is designated as a judge advocate.

(19) Legal officer means an officer of the New York Naval Militia designated to perform legal duties for a command.

(20) May is used in a permissive sense. The words no person may. . . mean that no person is required, authorized, or permitted to do the act prescribed.

(21) Members. The members of a court-martial are the voting members detailed by the convening authority.

(22) Military judge means the presiding officer of a general or special court-martial detailed in accordance with section ML, 130.26. Except as otherwise expressly provided, in the context of a summary court-martial military judge includes the summary court-martial officer or in the context of a special court-martial without a military judge, the president. Unless otherwise indicated in the context, the military judge means the military judge detailed to the court-martial to which charges in a case have been referred for trial.

(23) Officer means commissioned officer, including a commissioned warrant officer.

(24) Officer in charge means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.

(25) Organized militia means the organized militia, the composition of which is stated in ML, section 2.

(26) Original, with the respect to the appointment of a member of the Armed Forces in a regular or reserve component, refers to his most recent appointment in that component that is neither a promotion nor a demotion.

(27) Party, in the context of parties to a court-martial, means:

(i) the accused and any defense or associate or assistant defense counsel and agents of the defense counsel when acting on behalf of the accused with respect to the court-martial in question; and

(ii) any trial or assistant trial counsel representing the State, and agents of the trial counsel when acting on behalf of the trial counsel with respect to the court-martial in question.

(28) Pay includes basic pay, special pay, retainer pay, incentive pay, retired pay, and equivalent pay, but does not include allowances.

(29) Shall is used in an imperative sense.

(30) Spouse means husband or wife, as the case may be.

(31) Staff judge advocate means a judge advocate so designated in the Army, Air Force or Marine Corps, and means the principal legal advisor of a command in the Navy and Coast Guard who is a judge advocate.

(32) Sua sponte means that the individual involved acts on his or her initiative, without the need for a request, motion, or application.

(33) Supplies includes material, equipment and stores of all kinds.

(34) Superior commissioned officer means a commissioned officer superior in rank or command.

(35) The word vehicle includes every description of carriage or other artificial contrivance used or capable of being used, as a means of transportation on land.

(36) The word vessel includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.

(d) Unlawful command influence.

(1) General prohibitions.

(i) Convening authorities and commanders. No convening authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court-martial or tribunal, or with respect to any other exercise of the functions of the court-martial or tribunal or such persons in the conduct of the proceedings (see ML, 130.37[a]).

(ii) All persons subject to the code. No person subject to the code may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case of the action of any convening, approving, or reviewing authority with respect to such authority's judicial acts (see ML, 130.37[a]).

(iii) Exceptions.

(a) Instructions. Subparagraphs (1)(i) and (ii) of this subdivision do not prohibit general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing personnel of a command in the substantive and procedural aspects of courts-martial (see ML, 130.37[a]).

(b) Court-martial statements. Subparagraphs (1)(i) and (ii) of this subdivision do not prohibit statements and instructions given in open session by the military judger or counsel (see ML, 130.37[a]).

(c) Offense. Subparagraphs (1)(i) and (ii) of this subdivision do not prohibit appropriate action against a person for an offense committed while detailed as a military judge, counsel, or member of a court-martial, or while serving as individual counsel.

(2) Prohibitions concerning evaluations.

(i) Evaluation of member of defense counsel. In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a member of the organized militia is qualified to be advanced in grade, or in determining the assignment or transfer of a member of the organized militia, or in determining whether a member of the organized militia should be retained, no person subject to the code may:

(a) consider or evaluate the performance of duty of any such person as a member of a court-martial; or

(b) give a less favorable rating or evaluation of any defense counsel because of the zeal with which such counsel represented any accused (see ML, 130.37 [b]).

(ii) Evaluation of military judge.

(a) General courts-martial. Neither the convening authority nor any member of the convening authority's staff may prepare or review any report concerning the effectiveness, fitness, or efficiency or the military judge detailed to a general court-martial, which relates to the performance of duty as a military judge.

(b) Special courts-martial. The convening authority may not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to a special court-martial which relates to the performance of duty as a military judge. When the military judge is normally rated or the military judge's report is reviewed by the convening authority, the manner in which such military judge will be rated or evaluated upon the performance of duty as a military judge may be as prescribed in regulations of the Chief of Staff to the Governor which shall ensure the absence of any command influence in the rating or evaluation of the military judge's judicial performance.

(e) Direct communications: convening authorities and staff judge advocates; among staff judge advocates.

(1) Convening authorities and staff judge advocates. Convening authorities shall at all times communicate directly with their staff judge advocates in matters relating to the administration of military justice.

(2) Among staff judge advocates and with the judge advocate general. The staff judge advocate of any command is entitled to communicate directly with the staff judge advocate of a superior or subordinate command, or with the State judge advocate (see 130.6[b], ML).

(f) Delivery of military offenders to civilian authorities.

(1) In general. A person subject to the code and under military control accused of an offense against civilian authority may be delivered, upon request, to the civilian authority for trial. A member may be placed in restraint by military authorities for this purpose only upon receipt of a duly issued warrant for the apprehension of the member or upon receipt of information establishing probable cause that the member committed an offense, and upon reasonable belief that such restraint is necessary. Such restraint may continue only for such time as is reasonably necessary to effect the delivery (see ML, 130.14).

(2) Offenses not under the code. In each case not involving an offense cognizable under the code, the determination to deliver or to refuse to deliver, a person subject to the code and under military control to civil authority must be made by or under the authority of a general officer. That officer or his designee may (if delivery is made) and must (if delivery is refused), make an immediate telephone report to the Chief of Staff to the Governor, giving the circumstances surrounding the commission of the alleged offense, the evidence leading to a reasonable belief that the person committed that offense, and, in the case of refusal, the reason for the failure to make delivery.

(3) Delivery of prisoner. When delivery under this subdivision is made to any civil authority of a person undergoing sentence of a court-martial if followed by conviction in a civilian criminal tribunal, will be interrupt the execution of the sentence of the court-martial; and the person, after having answered to the civil authorities for his offense, must be returned to military custody upon the request of the Chief of Staff to the Governor, for completion of the court-martial sentence.

(g) Rules of court. The Chief of Staff to the Governor and persons designated by him, may make rules off court not inconsistent with the N.Y.R.C.M. and the code for the conduct of court-martial proceedings (see ML, 130.36). In the event such rule or rules are not promulgated, the conduct of court-martial proceedings shall be in compliance with the UCMJ, so long as same is not inconsistent with the N.Y.R.C.M.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.1