Family Court Law
New York Law
New York State Consolidated Laws
Part 2 - Article 3 - Family Court
INITIAL APPEARANCE AND PROBABLE CAUSE HEARING
||The initial appearance; definition.
||The initial appearance; timing; adjournment and appointment of counsel.
||Notice of rights.
||The initial appearance; procedures.
||The initial appearance; release or detention.
||The initial appearance; referral to the probation service.
||Entry of an admission or a denial.
||Admissions to part of a petition; admissions concerning other petitions.
||Acceptance of an admission.
||Withdrawal of an admission or denial.
||Incapacitated person; examination reports.
||Proceedings to determine capacity.
||The probable-cause hearing; time.
||The probable-cause hearing; order of proceeding.
||The probable-cause hearing; determination.
S 320.1. The initial appearance; definition. When used in this article
"initial appearance" means the proceeding on the date the respondent
first appears before the court after a petition has been filed and any
adjournments thereof, for the purposes specified in section 320.4.
S 320.2. The initial appearance; timing; adjournment and appointment
of counsel. 1. If the respondent is detained, the initial appearance
shall be held no later than seventy-two hours after a petition is filed
or the next day the court is in session, whichever is sooner. If the
respondent is not detained, the initial appearance shall be held as soon
as practicable and, absent good cause shown, within ten days after a
petition is filed. If a warrant for the respondent's arrest has been
issued pursuant to section 312.2 of this article due to the respondent's
failure to appear for an initial appearance of which he or she had
notice, computation of the time within which the initial appearance must
be held shall exclude the period extending from the date the court
issues the warrant to the date the respondent is returned pursuant to
the warrant or appears voluntarily; provided, however, no period of time
may be excluded hereunder unless the respondent's location cannot be
determined by the exercise of due diligence or, if the respondent's
location is known, his or her presence in court cannot be obtained by
the exercise of due diligence. In determining whether due diligence has
been exercised, the court shall consider, among other factors, the
report presented to the court pursuant to subdivision two of section
312.2 of this article.
2. At the initial appearance the court must appoint an attorney to
represent the respondent pursuant to the provisions of section two
hundred forty-nine if independent legal representation is not available
to such respondent.
3. The initial appearance may be adjourned for no longer than
seventy-two hours or until the next court day, whichever is sooner, to
enable an attorney for the respondent to appear before the court.
4. The clerk of the court shall notify the presentment agency and any
attorney for the respondent of the initial appearance date.
S 320.3. Notice of rights. At the time the respondent first appears
before the court, the respondent and his or her parent or other person
legally responsible for his or her care shall be advised of the
respondent's right to remain silent and of his or her right to be
represented by counsel chosen by him or her or by an attorney assigned
by the court. Provided, however, that in the event of the failure of the
respondent's parent or other person legally responsible for his care to
appear, after reasonable and substantial effort has been made to notify
such parent or responsible person of the commencement of the proceeding
and such initial appearance, the court shall appoint an attorney for the
S 320.4. The initial appearance; procedures. 1. At the initial
appearance the court must inform the respondent, or cause him to be
informed in its presence, of the charge or charges contained in the
petition, and the presentment agency must cause the respondent and his
or her counsel to be furnished with a copy of the petition.
2. At the initial appearance the court shall determine:
(a) whether detention is necessary pursuant to section 320.5; and
(b) whether the case should be referred to the probation service
pursuant to section 320.6; and
(c) if the child is detained, the date of the probable-cause hearing
pursuant to section 325.1 unless such hearing has already been held; and
(d) the date of the fact-finding hearing; and
(e) such other issues as may be properly before it.
S 320.5. The initial appearance; release or detention. 1. At the
initial appearance, the court in its discretion may release the
respondent or direct his detention.
2. Rules of court shall define permissible terms and conditions of
release. The court may in its discretion release the respondent upon
such terms and conditions as it deems appropriate. The respondent shall
be given a written copy of any such terms and conditions. The court may
modify or enlarge such terms and conditions at any time prior to the
expiration of the respondent's release.
3. (a) The court shall not direct detention unless available
alternatives to detention, including conditional release, would not be
appropriate, and the court finds that unless the respondent is detained:
(i) there is a substantial probability that he or she will not appear
in court on the return date; or
(ii) there is a serious risk that he or she may before the return date
commit an act which if committed by an adult would constitute a crime.
(b) Any finding directing detention pursuant to paragraph (a) of this
subdivision made by the court shall state the facts, the level of risk
the youth was assessed pursuant to a detention risk assessment
instrument approved by the office of children and family services, and
the reasons for such finding including, if a determination is made to
place a youth in detention who was assessed at a low or medium risk on
such a risk assessment instrument, the particular reasons why detention
was determined to be necessary.
(c) If the court makes a finding that detention is necessary pursuant
to subparagraphs (i) and (ii) of paragraph (a) of this subdivision, the
court may consider, where applicable, as a condition of release,
electronic monitoring of the respondent, if such electronic monitoring
would significantly reduce the substantial probability that the
respondent would not return to court on the return date, or the serious
risk that the respondent may before the return date commit an act that
if committed by an adult would constitute a crime.
(d) If the respondent may be a sexually exploited child as defined in
subdivision one of section four hundred forty-seven-a of the social
services law, the court may direct the respondent to an available
short-term safe house as a condition of release.
4. At the initial appearance the presentment agency may introduce the
respondent's previous delinquency findings entered by a family court. If
the respondent has been fingerprinted for the current charge pursuant to
section 306.1, the presentment agency may also introduce the fingerprint
records maintained by the division of criminal justice services. The
clerk of court and the probation service shall cooperate with the
presentment agency in making available the appropriate records. At the
conclusion of the initial appearance such fingerprint records shall be
returned to the presentment agency and shall not be made a part of the
5. Upon a finding of facts and reasons which support a detention order
pursuant to subdivision three of this section, the court shall also
determine and state in any order directing detention:
(a) whether the continuation of the respondent in the respondent's
home would be contrary to the best interests of the respondent based
upon, and limited to, the facts and circumstances available to the court
at the time of the initial appearance; and
(b) where appropriate and consistent with the need for protection of
the community, whether reasonable efforts were made prior to the date of
the court appearance that resulted in the detention order issued in
accordance with this section to prevent or eliminate the need for
removal of the respondent from his or her home or, if the respondent had
been removed from his or her home prior to the initial appearance, where
appropriate and consistent with the need for protection of the
community, whether reasonable efforts were made to make it possible for
the respondent to safely return home.
S 320.6. The initial appearance; referral to the probation service. 1.
If the petition alleges the commission of a designated felony act or the
commission of a crime enumerated in subdivision four of section 308.1,
the probation service shall make a recommendation to the court at the
initial appearance regarding the suitability of adjusting the case
pursuant to section 308.1.
2. At the initial appearance the court may, with the consent of the
victim or complainant and the respondent, refer a case to the probation
service for adjustment services. In the case of a designated felony
petition the consent of the presentment agency shall also be required to
refer a case to probation services for adjustment services.
3. If the court refers a case to the probation service pursuant to
this section and the probation service adjusts the case, the petition
shall be dismissed.
4. If such case is referred to the probation service, the provisions
of section 308.1, except subdivision thirteen thereof, shall apply.
S 321.1. Entry of an admission or a denial. 1. At the initial
appearance the respondent shall admit or deny each charge contained in
the petition unless the petition is dismissed or the proceeding
2. If the respondent refuses to admit or deny each such charge or
remains mute, the court must enter a denial in his behalf as to any
charge neither admitted nor denied.
S 321.2. Admissions to part of a petition; admissions concerning other
1. A respondent may as a matter of right enter an admission to those
allegations in the petition which are determinable at the fact-finding
2. Where the petition charges but one crime, a respondent may, with
the consent of the court and the appropriate presentment agency, enter
an admission of a lesser included crime as defined in section 1.20 of
the criminal procedure law.
3. Where the petition charges more than one crime in separate counts a
respondent may, with the consent of the court and the appropriate
presentment agency, enter an admission to part of the petition or a
lesser included crime upon the condition that such admission constitutes
a complete disposition of these allegations in the petition which are
determinable at the fact-finding hearing.
S 321.3. Acceptance of an admission. 1. The court shall not consent to
the entry of an admission unless it has advised the respondent of his
right to a fact-finding hearing. The court shall also ascertain through
allocution of the respondent and his parent or other person legally
responsible for his care, if present, that (a) he committed the act or
acts to which he is entering an admission, (b) he is voluntarily waiving
his right to a fact-finding hearing, and (c) he is aware of the possible
specific dispositional orders. The provisions of this subdivision shall
not be waived.
2. Upon consenting to the entry of an admission pursuant to this
section, the court must state the reasons for granting such consent.
3. Upon the entry of an admission pursuant to this section the court
shall enter an appropriate order pursuant to section 345.1 and schedule
a dispositional hearing pursuant to section 350.1.
S 321.4. Withdrawal of an admission or denial. 1. A respondent who has
entered a denial of a petition may as a matter of right withdraw such
denial at any time before the conclusion of the fact-finding hearing and
enter an admission to the entire petition.
2. At any time prior to the entry of a finding under section 352.1 the
court in its discretion may permit a respondent who has entered an
admission to the entire petition or to part of the petition to withdraw
such admission, and in such event the entire petition as it existed at
the time of the admission shall be restored.
S 322.1. Incapacitated person; examination reports. 1. At any
proceeding under this article, the court must issue an order that the
respondent be examined as provided herein when it is of the opinion that
the respondent may be an incapacitated person. Notwithstanding the
provisions of this or any other law, the court may direct that the
examination be conducted on an outpatient basis when the respondent is
not in custody at the time the court issues an order of examination. The
court shall order that two qualified psychiatric examiners as defined in
subdivision seven of section 730.10 of the criminal procedure law
examine the respondent to determine if he is mentally ill, mentally
retarded or developmentally disabled.
2. If an order of examination has been issued pursuant to subdivision
one, the proceedings shall be adjourned until the examination reports
have been filed with the court. Every such report shall be filed within
ten days after entry of such order. Upon a showing of special
circumstances and a finding that a longer period is necessary to
complete the examination and report, the court may extend the time for
filing the examination report.
3. Each report shall state the examiner's opinion as to whether the
respondent is or is not an incapacitated person, the nature and extent
of his examination and, if he finds the respondent is an incapacitated
person, his diagnosis and prognosis and a detailed statement of the
reasons for his opinion by making particular reference to those aspects
of the proceedings wherein the respondent lacks capacity to understand
or to assist in his own defense. The chief administrator of the courts
shall prescribe the form for the examination report.
S 322.2. Proceedings to determine capacity. 1. Upon the receipt of
examination reports ordered under section 322.1, the court shall conduct
a hearing to determine whether the respondent is an incapacitated
person. The respondent, the counsel for the respondent, the presentment
agency and the commissioner of mental health or the commissioner of
mental retardation and developmental disabilities, as appropriate, shall
be notified of such hearing at least five days prior to the date thereof
and afforded an opportunity to be heard.
2. If the court finds that the respondent is not an incapacitated
person, it shall continue the delinquency proceedings.
3. If the court finds that the respondent is an incapacitated person,
the court shall schedule a hearing to determine whether there is
probable cause to believe that the respondent committed a crime. The
order of proceeding at such hearing shall conform to section 325.2.
4. If the court finds that there is probable cause to believe that the
respondent committed a misdemeanor, the respondent shall be committed to
the custody of the appropriate commissioner for a reasonable period not
to exceed ninety days. The court shall dismiss the petition on the
issuance of the order of commitment.
5. (a) If the court finds that there is probable cause to believe
that the respondent committed a felony, it shall order the respondent
committed to the custody of the commissioner of mental health or the
commissioner of mental retardation and developmental disabilities for an
initial period not to exceed one year from the date of such order. Such
period may be extended annually upon further application to the court by
the commissioner having custody or his or her designee. Such application
must be made not more than sixty days prior to the expiration of such
period on forms that have been prescribed by the chief administrator of
the courts. At that time, the commissioner must give written notice of
the application to the respondent, the counsel representing the
respondent and the mental hygiene legal service if the respondent is at
a residential facility. Upon receipt of such application, the court must
conduct a hearing to determine the issue of capacity. If, at the
conclusion of a hearing conducted pursuant to this subdivision, the
court finds that the respondent is no longer incapacitated, he or she
shall be returned to the family court for further proceedings pursuant
to this article. If the court is satisfied that the respondent continues
to be incapacitated, the court shall authorize continued custody of the
respondent by the commissioner for a period not to exceed one year. Such
extensions shall not continue beyond a reasonable period of time
necessary to determine whether the respondent will attain the capacity
to proceed to a fact finding hearing in the foreseeable future but in no
event shall continue beyond the respondent's eighteenth birthday.
(b) If a respondent is in the custody of the commissioner upon the
respondent's eighteenth birthday, the commissioner shall notify the
clerk of the court that the respondent was in his custody on such date
and the court shall dismiss the petition.
(c) If the court finds that there is probable cause to believe that
the respondent has committed a designated felony act, the court shall
require that treatment be provided in a residential facility within the
appropriate office of the department of mental hygiene.
(d) The commissioner shall review the condition of the respondent
within forty-five days after the respondent is committed to the custody
of the commissioner. He or she shall make a second review within ninety
days after the respondent is committed to his or her custody.
Thereafter, he or she shall review the condition of the respondent every
ninety days. The respondent and the counsel for the respondent, shall
be notified of any such review and afforded an opportunity to be heard.
The commissioner having custody shall apply to the court for an order
dismissing the petition whenever he or she determines that there is a
substantial probability that the respondent will continue to be
incapacitated for the foreseeable future. At the time of such
application the commissioner must give written notice of the application
to the respondent, the presentment agency and the mental hygiene legal
service if the respondent is at a residential facility. Upon receipt of
such application, the court may on its own motion conduct a hearing to
determine whether there is substantial probability that the respondent
will continue to be incapacitated for the foreseeable future, and it
must conduct such hearing if a demand therefor is made by the respondent
or the mental hygiene legal service within ten days from the date that
notice of the application was given to them. The respondent may apply to
the court for an order of dismissal on the same ground.
6. Any order pursuant to this section dismissing a petition shall not
preclude an application for voluntary or involuntary care and treatment
in a facility of the appropriate office of the department of mental
hygiene pursuant to the provisions of the mental hygiene law. Unless the
respondent is admitted pursuant to such an application he shall be
7. If the commissioner having custody of a child committed to a
residential facility determines at any time that such child may be more
appropriately treated in a non-residential facility, he may petition the
family court for a hearing. If the court finds after a hearing that
treatment in a non-residential facility would be more appropriate for
such child, the court shall modify its order of commitment to authorize
transfer of such child to a non-residential facility. Application for
such a hearing may be made by the respondent.
8. If the commissioner having custody of the child determines at any
time that such child is not an incapacitated person, he shall petition
the court for a hearing. The respondent and the presentment agency shall
be notified of such hearing within twenty-four hours of the scheduling
of such hearing and afforded an opportunity to be heard. Application for
such a hearing may be made by the respondent. If the court finds after
the hearing that the child is no longer incapacitated, he shall be
returned to the family court for further proceedings pursuant to this
9. Time spent by the respondent in the custody of a commissioner of an
office within the department of mental hygiene or in a local hospital or
detention facility pending transfer to the custody of the commissioner
after a finding of incapacity, shall be credited and applied towards the
period of placement specified in a dispositional order on the original
S 325.1. The probable-cause hearing; time. 1. At the initial
appearance, if the respondent denies a charge contained in the petition
and the court determines that he shall be detained for more than three
days pending a fact-finding hearing, the court shall schedule a
probable-cause hearing to determine the issues specified in section
2. Such probable-cause hearing shall be held within three days
following the initial appearance or within four days following the
filing of a petition, whichever occurs sooner.
3. For good cause shown, the court may adjourn the hearing for no more
than an additional three court days.
4. The respondent may waive the probable-cause hearing, but the fact
that the respondent is not ready for a fact-finding hearing shall not be
deemed such a waiver.
5. Where the petition consists of an order of removal pursuant to
article seven hundred twenty-five of the criminal procedure law, unless
the removal was pursuant to subdivision three of section 725.05 of such
law and the respondent was not afforded a probable cause hearing
pursuant to subdivision three of section 180.75 of such law for a reason
other than his waiver thereof pursuant to subdivision two of section
180.75 of such law, the petition shall be deemed to be based upon a
determination that probable cause exists to believe the respondent is a
juvenile delinquent and the respondent shall not be entitled to any
further inquiry on the subject of whether probable cause exists. After
the filing of any such petition the court must, however, exercise
independent, de novo discretion with respect to release or detention as
set forth in section 320.5.
S 325.2. The probable-cause hearing; order of proceeding. 1. The order
of a probable-cause hearing held pursuant to section 325.1 or 322.2
shall be as follows:
(a) the presentment agency must call and examine witnesses and offer
evidence in support of the charge;
(b) the respondent may, as a matter of right, testify in his own
behalf; if the respondent so testifies, his testimony may not be
introduced against him in any future proceeding, except to impeach his
testimony at such future proceeding as inconsistent prior testimony;
(c) upon request of the respondent, the court shall, except for good
cause shown, permit him to call and examine other witnesses or to
produce other evidence in his behalf.
2. Each witness, whether called by the presentment agency or by the
respondent, must, unless he would be authorized to give unsworn evidence
at a fact-finding hearing, testify under oath. Each witness, including
any respondent testifying in his own behalf, may be cross-examined.
3. Only non-hearsay evidence shall be admissible to demonstrate
reasonable cause to believe that the respondent committed a crime;
except that reports of experts and technicians in professional and
scientific fields and sworn statements of the kinds admissible at a
hearing upon a felony complaint in a criminal court may be admitted,
unless the court determines, upon application of the respondent, that
such hearsay evidence is, under the particular circumstances of the
case, not sufficiently reliable, in which case the court shall require
that the witness testify in person and be subject to cross-examination.
4. Such hearing should be completed at one session. In the interest of
justice, however, it may be adjourned by the court, but no such
adjournment may be for more than one court day.
S 325.3. The probable-cause hearing; determination. 1. At the
conclusion of a probable-cause hearing held pursuant to section 325.1
the court shall determine in accordance with the evidentiary standards
applicable to a hearing on a felony complaint in a criminal court:
(a) whether it is reasonable to believe that a crime was committed;
(b) whether it is reasonable to believe that the respondent committed
2. The court shall state on the record the section or sections of the
penal law or other law which it is reasonable to believe the respondent
3. If the court finds that there is reasonable cause pursuant to
subdivision one, it shall further determine whether continued detention
is necessary pursuant to section 320.5.
4. If the court does not find that there is reasonable cause to
believe that a crime was committed and that the respondent committed it,
the case shall be adjourned and the respondent released from detention.
If the court or the presentment agency cannot hold a probable cause
hearing within the limits of subdivision two of section 325.1, the court
may dismiss the petition without prejudice or for good cause shown
adjourn the hearing and release the respondent pursuant to section
Top of Page
- A comprehensive on-line digest of New York's criminal code.