17.14 - A. Infancy And “Juvenile Offender” Procedures

• Jurisdiction: New York

A. Infancy and “Juvenile Offender” Procedures

Certain persons under 16 years of age may be prosecuted in criminal courts for certain specified crimes. It is generally recognized that the change from prior law, which forbade prosecution of those younger than 16, came about in response to what the executive and legislative branches saw as the serious problem of violent crimes committed by youthful offenders. The First Department has rejected a constitutional challenge to PL § 30.00 on the ground that reliance on chronological age constituted arbitrary discrimination and violated the due process and equal protection clauses of the federal and state constitutions.²⁶⁸²

A person less than 16 years old is not criminally responsible for conduct unless that person happens to fall within the exceptions listed in PL § 30.00(2).²⁶⁸³ For example, 13-year-olds retain their infancy status except when charged with second-degree murder under PL § 125.25. However, 14- and 15-year-olds, in addition to being chargeable as adults for murder in the second degree, may be held criminally responsible for the following crimes: first-degree kidnapping, under PL § 135.25; first-degree arson, under § 150.20; first-degree assault, under § 120.10(1) and (2); first-degree manslaughter, under § 125.20; first-degree rape, under § 130.35(1) and (2); first-degree sodomy, under § 130.50(1) and (2); first-degree burglary, under § 140.30; first-degree robbery, under § 140.30; second-degree arson, under § 150.15; second-degree burglary, under § 140.25(1); second-degree robbery, under § 160.10(2); an attempt to commit second-degree murder; an attempt to commit first-degree kidnapping.

With the specific adoption of PL § 30.00, the common law doctrine relating to the incapacity of a child between the ages of 7 and 14 has effectively been displaced. The legislation has withstood attacks claiming that it violates provisions of the New York State Constitution.²⁶⁸⁴

A “juvenile offender” is a person whose infancy defense is nullified by any of the above-cited exceptions to the infancy defense statute.²⁶⁸⁵ Notwithstanding these exceptions, a juvenile offender still stands a chance of having his case disposed of in family court, since the CPL permits the case to be removed to family court if certain requirements are met.²⁶⁸⁶ Where the local criminal court finds reasonable cause to believe the juvenile offender has committed a crime for which he is criminally responsible, it may, sua sponte or on motion of any party, order removal, except where the complaint charges second-degree murder or an “armed felony.”²⁶⁸⁷ If the district attorney requests removal, the court must order removal.²⁶⁸⁸ The only determination the local criminal court must make is that removal is “in the interests of justice.”²⁶⁸⁹

Where the complaint does charge second-degree murder or an armed felony, the court may order removal if the district attorney consents and states on the record the reasons for his consent. Further, the court must base its order of removal solely on one or more of several factors enumerated in the statute: (1) mitigating circumstances that bear directly upon the manner in which the crime was committed; (2) 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; or (3) possible deficiencies in proof of the crime.²⁶⁹⁰

The juvenile offender may waive a hearing upon the felony complaint, in which case the court must order him held for action of the grand jury.²⁶⁹¹ If there is a hearing and the court finds reasonable cause to believe the juvenile offender committed a crime for which he is criminally responsible, the court must order him held for action of the grand jury.²⁶⁹² If the court finds that there is not reasonable cause to believe the juvenile offender committed one of the designated felonies, but that there is reasonable cause to believe he is a “juvenile delinquent” as defined in § 301.2(1) of the N.Y. Family Court Act, the court must specify which acts are indicative of delinquency and remove the case to family court.²⁶⁹³

A grand jury may indict a juvenile offender for any of the designated felonies mentioned above.²⁶⁹⁴ The grand jury may vote to remove a case to family court and not indict the juvenile, if it has legally sufficient, competent and admissible evidence...