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The Raise Age Legislation & its Effect on Juveniles in Westchester County, NY

On April 10, 2017, the New York State’s Governor Cuomo signed new legislation raising the age of criminal responsibility from 16 to 18 years of age. The law was implemented in two stages. The first stage occurred on October 1, 2018, when the presumptive age for juvenile accountability was raised to 16-years-old. The second stage went into effect on October 1, 2019, when the age was raised again to 17-years-old.

Why the Change and What Does It Do?

The law was crafted by the New York State Legislature over a period of years and is specifically designed to ensure that young people in Westchester County and throughout New York State who are charged with non-violent crimes receive intervention and evidence-based treatment instead of being punished in the criminal justice system. As of October 1, 2019, New York no longer automatically prosecutes 16- and 17-year-olds as adults.

Another very significant change in the law concerns Parental Notification. Parents must now be notified when their children are arrested and those young offenders may not be questioned unless said questioning takes place in age-appropriate settings and are for developmentally appropriate periods of time. Additionally, the questioning must involve parents, including the important step of waiving the child’s Miranda rights.

The Adolescent Offender Category

A new category of young offender is also created by the Raise the Age Legislation, titled “Adolescent Offender (AO)”. AOs are defined as 16- or 17-years-olds who are accused of felony-level crimes. These young individuals will have their cases heard in the Youth Part of the Westchester Criminal Court.

Notably, if the presiding judge concludes that there is a need for pre-trial detention, AOs will be held in the newly created “specialized secure juvenile detention facilities for older youth.”

This change in the law prevents young people from being housed in adult facilities or jails. They will be placed in specialized juvenile detention facility certified by the State Office of Children and Family Services.

Westchester Family Court Removals and Criminal Court Designations

Violations under the Law:

Violations will continue to be heard in adult criminal/local courts of throughout Westchester County under the law.

Criminal Misdemeanors:

All misdemeanor cases (except for Vehicle and Traffic Law misdemeanors) will be heard by the Westchester Family Court in accordance with the Family Court Act, which sets forth the procedures for adjustment and confidential records.

Felony Crimes:

All felony cases will start in the Youth Part of the adult criminal court.

For AOs, there is a presumption that the case will be removed to Westchester Family Court. The Law sets forth two ways under which this will occur.

Violent Felonies:

In cases where a violent felony is involved, the AO must pass a three-part test in order for the case to be removed to the Westchester Family Court. The three factors considered include: (1) whether the defendant used a firearm or deadly weapon; (2) whether the offense was a sex crime; or (3) whether the individual caused significant physical injury. If none of these are present, and the Westchester County District Attorney fails to prove the existence of “extraordinary circumstances”, the case will be handled in Family Court.

Non-Violent Felonies:

All cases involving non-violent felonies will be transferred from the Youth Part to the Family Court. However, the District Attorney has the legal option of filing a motion within 30 days to prove the existence of extraordinary circumstances, which would prevent the removal of the case to Family Court. Once a motion is filed by the District Attorney, a hearing must be held and at the conclusion of the hearing, the judge must decide the matter within 5 days.

AOs in Family Court will be treated the same as current juvenile cases.

Age-Appropriate Services

Probation Case Planning:

Adolescent Offenders diverted to Westchester Family Court will be eligible for adjustment services through probation. These programs will be tailored to the specific needs of each individual.

Program Treatment Model:

Youth rehabilitative services will operate under the Program Treatment Model. Each young offender will have access to specialized therapeutic programs to develop cognitive skills. Academic transition plans will be developed with the AO student and the school psychologist to transition the student to education programs, vocational training, and/or employment opportunities. Also, substance abuse treatment will be offered to all youth who require it.

Re-Entry and Discharge Planning:

The Department of Correction and Community Supervision, County Re-Entry Task Forces, and the Office of Children and Family Services (OCFS) will jointly administer discharge planning services. These services include family reintegration, housing assistance, mental health, and medical care, employment support, and educational assistance.

Sealing Provision:

The Raise the Age legislation provides certain individuals previously convicted of a crime with the opportunity to have their criminal record sealed. If an individual remains crime-free for 10 years, they can apply to have their record sealed. Individuals who were convicted of two or more felonies, a sex offense, violent felony, or other serious felonies will not be eligible to have their records sealed.

Youth Offender (YO):

The new law does not change the current Youthful Offender laws or procedures.

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