S 720.10 Youthful offender procedure; definition of terms.
As used in this article, the following terms have the following
meanings:
1. “Youth” means a person charged with a crime alleged to have been
committed when he was at least sixteen years old and less than nineteen
years old or a person charged with being a juvenile offender as defined
in subdivision forty-two of section 1.20 of this chapter.
2. “Eligible youth” means a youth who is eligible to be found a
youthful offender. Every youth is so eligible unless:
(a) the conviction to be replaced by a youthful offender finding is
for (i) a class A-I or class A-II felony, or (ii) an armed felony as
defined in subdivision forty-one of section 1.20, except as provided in
subdivision three, or (iii) rape in the first degree, criminal sexual
act in the first degree, or aggravated sexual abuse, except as provided
in subdivision three, or
(b) such youth has previously been convicted and sentenced for a
felony, or
(c) such youth has previously been adjudicated a youthful offender
following conviction of a felony or has been adjudicated on or after
September first, nineteen hundred seventy-eight a juvenile delinquent
who committed a designated felony act as defined in the family court
act.
3. Notwithstanding the provisions of subdivision two, a youth who has
been convicted of an armed felony offense or of rape in the first
degree, criminal sexual act in the first degree, or aggravated sexual
abuse is an eligible youth if the court determines that one or more of
the following factors exist: (i) mitigating circumstances that bear
directly upon the manner in which the crime was committed; or (ii) where
the defendant was not the sole participant in the crime, the defendant’s
participation was relatively minor although not so minor as to
constitute a defense to the prosecution. Where the court determines that
the eligible youth is a youthful offender, the court shall make a
statement on the record of the reasons for its determination, a
transcript of which shall be forwarded to the state division of criminal
justice services, to be kept in accordance with the provisions of
subdivision three of section eight hundred thirty-seven-a of the
executive law.
4. “Youthful offender finding” means a finding, substituted for the
conviction of an eligible youth, pursuant to a determination that the
eligible youth is a youthful offender.
5. “Youthful offender sentence” means the sentence imposed upon a
youthful offender finding.
6. “Youthful offender adjudication”. A youthful offender adjudication
is comprised of a youthful offender finding and the youthful offender
sentence imposed thereon and is completed by imposition and entry of the
youthful offender sentence.
S 720.15 Youthful offender procedure; sealing of accusatory instrument;
privacy of proceedings; preliminary instructions to jury.
1. When an accusatory instrument against an apparently eligible youth
is filed with a court, the court, with the defendant`s consent, must
order that it be filed as a sealed instrument, though only with respect
to the public.
2. When a youth is initially arraigned upon an accusatory instrument,
such arraignment and all proceedings in the action thereafter may, in
the discretion of the court and with the defendant`s consent, be
conducted in private.
3. The provisions of subdivisions one and two of this section
requiring or authorizing the accusatory instrument filed against a youth
to be sealed, and the arraignment and all proceedings in the action to
be conducted in private shall not apply in connection with a pending
charge of committing any felony offense as defined in the penal law. The
provisions of subdivision one requiring the accusatory instrument filed
against a youth to be sealed shall not apply where such youth has
previously been adjudicated a youthful offender or convicted of a crime.
S 720.20 Youthful offender determination; when and how made;
procedure thereupon.
1. Upon conviction of an eligible youth, the court must order a
pre-sentence investigation of the defendant. After receipt of a written
report of the investigation and at the time of pronouncing sentence the
court must determine whether or not the eligible youth is a youthful
offender. Such determination shall be in accordance with the following
criteria:
(a) If in the opinion of the court the interest of justice would be
served by relieving the eligible youth from the onus of a criminal
record and by not imposing an indeterminate term of imprisonment of more
than four years, the court may, in its discretion, find the eligible
youth is a youthful offender; and
(b) Where the conviction is had in a local criminal court and the
eligible youth had not prior to commencement of trial or entry of a plea
of guilty been convicted of a crime or found a youthful offender, the
court must find he is a youthful offender.
2. Where an eligible youth is convicted of two or more crimes set
forth in separate counts of an accusatory instrument or set forth in two
or more accusatory instruments consolidated for trial purposes, the
court must not find him a youthful offender with respect to any such
conviction pursuant to subdivision one of this section unless it finds
him a youthful offender with respect to all such convictions.
3. Upon determining that an eligible youth is a youthful offender,
the court must direct that the conviction be deemed vacated and replaced
by a youthful offender finding; and the court must sentence the
defendant pursuant to section 60.02 of the penal law.
4. Upon determining that an eligible youth is not a youthful
offender, the court must order the accusatory instrument unsealed and
continue the action to judgment pursuant to the ordinary rules governing
criminal prosecutions.
S 720.30 Youthful offender adjudication; post-judgment motions and
appeal.
The provisions of this chapter, governing the making and determination
of post-judgment motions and the taking and determination of appeals in
criminal cases, apply to post-judgment motions and appeals with respect
to youthful offender adjudications wherever such provisions can
reasonably be so applied.
S 720.35 Youthful offender adjudication; effect thereof; records.
1. A youthful offender adjudication is not a judgment of conviction
for a crime or any other offense, and does not operate as a
disqualification of any person so adjudged to hold public office or
public employment or to receive any license granted by public authority
but shall be deemed a conviction only for the purposes of transfer of
supervision and custody pursuant to section two hundred fifty-nine-m of
the executive law.
2. Except where specifically required or permitted by statute or upon
specific authorization of the court, all official records and papers,
whether on file with the court, a police agency or the division of
criminal justice services, relating to a case involving a youth who has
been adjudicated a youthful offender, are confidential and may not be
made available to any person or public or private agency, other than the
designated educational official of the public or private elementary or
secondary school in which the youth is enrolled as a student provided
that such local educational official shall only have made available a
notice of such adjudication and shall not have access to any other
official records and papers, such youth or such youth’s designated agent
(but only where the official records and papers sought are on file with
a court and request therefor is made to that court or to a clerk
thereof), an institution to which such youth has been committed, the
department of corrections and community supervision and a probation
department of this state that requires such official records and papers
for the purpose of carrying out duties specifically authorized by law;
provided, however, that information regarding an order of protection or
temporary order of protection issued pursuant to section 530.12 of this
chapter or a warrant issued in connection therewith may be maintained on
the statewide automated order of protection and warrant registry
established pursuant to section two hundred twenty-one-a of the
executive law during the period that such order of protection or
temporary order of protection is in full force and effect or during
which such warrant may be executed. Such confidential information may be
made available pursuant to law only for purposes of adjudicating or
enforcing such order of protection or temporary order of protection and,
where provided to a designated educational official, as defined in
section 380.90 of this chapter, for purposes related to the execution of
the student’s educational plan, where applicable, successful school
adjustment and reentry into the community. Such notification shall be
kept separate and apart from such student’s school records and shall be
accessible only by the designated educational official. Such
notification shall not be part of such student’s permanent school record
and shall not be appended to or included in any documentation regarding
such student and shall be destroyed at such time as such student is no
longer enrolled in the school district. At no time shall such
notification be used for any purpose other than those specified in this
subdivision.
3. If a youth who has been adjudicated a youthful offender is enrolled
as a student in a public or private elementary or secondary school the
court that has adjudicated the youth as a youthful offender shall
provide notification of such adjudication to the designated educational
official of the school in which such youth is enrolled as a student.
Such notification shall be used by the designated educational official
only for purposes related to the execution of the student’s educational
plan, where applicable, successful school adjustment and reentry into
the community. Such notification shall be kept separate and apart from
such student’s school records and shall be accessible only by the
designated educational official. Such notification shall not be part of
such student’s permanent school record and shall not be appended to or
included in any documentation regarding such student and shall be
destroyed at such time as such student is no longer enrolled in the
school district. At no time shall such notification be used for any
purpose other than those specified in this subdivision.
4. Notwithstanding subdivision two of this section, whenever a person
is adjudicated a youthful offender and the conviction that was vacated
and replaced by the youthful offender finding was for a sex offense as
that term is defined in article ten of the mental hygiene law, all
records pertaining to the youthful offender adjudication shall be
included in those records and reports that may be obtained by the
commissioner of mental health or the commissioner of developmental
disabilities, as appropriate; the case review panel; and the attorney
general pursuant to section 10.05 of the mental hygiene law.