38-c-2 Being Tried as a Juvenile Offender (jo)

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

38-C-2. Being Tried as a Juvenile Offender (JO)

(a) Transferring to Family Court

There are several advantages to transferring your case from criminal court to Family Court. If you are transferred to Family Court, you will probably have better facilities available to you while you are detained and, if you are convicted, a wider range of sentences the judge can apply to you. Also, you will not have a criminal conviction on your permanent record. Family Court records are automatically sealed if you win your case. If you lose your case, then you will have to file an application to obtain a court order to have the court records sealed.

If you are being treated as a JO, there are three ways to have your case transferred to Family Court:

(1) the district attorney asks for your case to be transferred,

(2) you make a motion to transfer your case, or

(3) the court believes that there is "reasonable cause" that you do not fit in the JO category.

The district attorney can always ask that your case be transferred to family court if doing so would be in the interests of justice.⁶⁴ You should talk to your lawyer to see if the prosecutor in your case is willing to do this for you.

If you did not waive your felony hearing and the hearing has not yet started, you can also make a motion to transfer your case to Family Court in the interests of justice.⁶⁵ Talk to your lawyer if you do not know whether you waived your hearing or if it has started.

After receiving your motion, the court will look at what you are charged with and will examine:

(1) The seriousness and circumstances of the offense;

(2) How much harm the crime caused;

(3) The evidence of guilt against you, even if it will not be admitted in trial;

(4) Your history, character, and condition;

(5) The sentence the court can impose on you for the offense;

(6) Whether removing your case to Family Court will hurt the safety or welfare of the community;

(7) Whether removing your case to Family Court will hurt the public's trust in the criminal justice system;

(8) The way the victim feels about removing your case to Family Court; and

(9) Any other relevant fact that might mean that convicting you in criminal court would serve no useful purpose.

You must convince the court that you are open to rehabilitation and are not a threat to the community. Talk to your lawyer about how to best convince them.

It might be more difficult to have your case transferred to Family Court if you were charged with a "serious offense." If you are charged with second degree murder, first degree rape, a first degree criminal sexual act, or an armed felony, you can argue that you should be transferred to Family Court because it is in the interests of justice. However, the district attorney must consent, and you also have to convince the court that one of the following three reasons applies to your case:

(1) There are "mitigating circumstances," which means that something unique to you or to your case suggests that you should be treated less harshly;

(2) Other people were involved in the crime and your participation was minor (although not so minor that you should not have been charged in the first place); or

(3) There is not enough evidence or there is something wrong with the evidence being used to prove that you committed the crime.⁶⁶

If you waived your felony hearing or if your hearing has already started, then you cannot make a motion to remove your case to Family Court. However, if after the hearing the court finds that there is reasonable cause to believe that you are a "juvenile delinquent," and not a JO, the court will remove your case to Family Court anyway.⁶⁷ A juvenile delinquent is a child between seven and sixteen years old who committed an act that would be criminal if an adult committed it but is not able to be charged because of their age.

If you are younger than sixteen and are charged with both JO and non-JO crimes (charges that would have been heard in Family Court without the JO charges), and you are only found guilty of non-JO crimes, then you have to be sentenced in Family Court. This is true even if your case was heard in criminal court.⁶⁸ If this happens and you are in detention, the Family Court has ten days to make its disposition unless you agree to give the court more time.⁶⁹

You also will be sentenced in Family Court if you reach a plea agreement on a non-JO offense if you were in County Court, not Supreme Court, before being removed.⁷⁰ If you were sentenced for a non-JO crime in criminal court, you can appeal your sentence and have it vacated.

After your case is in Family Court, problems with juvenile delinquency petitions may influence your disposition and punishment.⁷¹ However, New York courts may not allow you to move back into adult criminal court.⁷² Nevertheless, if you are tried in adult court, you may still be able to get yourself declared a "youthful offender" even after entering a plea or after a jury finds you guilty (see (g) below).

(b)...