Postverdict Proceedings

• Author: Anthony G. Amsterdam/Martin Guggenheim/Randy A. Hertz
• Profession: University Professor and Professor of Law at New York University/Fiorello LaGuardia Professor of Clinical Law at New York University School of Law/Professor of Clinical Law at NYU School of Law
• Pages: 787-792

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CHAPTER 37

POSTVERDICT

PROCEEDINGS

§ 37.01 Scheduling the Disposition Date; Respondent’s

Detention Status Pending Disposition

If the respondent is convicted, ordinarily the court will schedule a date for a disposi-

tional hearing and will order the probation department to investigate the respondent’s

background and prepare a report for the court’s consideration at the hearing. (This is

usually called a “pre-sentence report,” “investigation and report,” or “social study.”) If

the respondent is not detained pending disposition, the disposition date will be sched-

uled so as to give the probation department the amount of time it needs for preparation

of its report—four to eight weeks in most jurisdictions. If the respondent is detained,

most jurisdictions provide (by statute, court rule, or custom) for an accelerated proba-

tion investigation, a nd the dispo sition date is usua lly within two or three week s. See, e.g.,

N.Y. Fa. C. A §350.1 (2012) (disposition within 10 days if respondent is detained;

within 50 days if not detained).

When the offense was relatively minor and the respondent’s prior record is not very

bad, the prosecutor will often be willing to join in—or at least not oppose—a defense

request to waive preparation of a pre-sentence report and for entry of an immediate dis-

position (see § 14. 06(c) (1) supra) of probation or perhaps even a “conditional discharge”

(see § 38.03(c) infra). Us ually, it is in th e respond ent’s inter est to se ize the opport unity for

an immediate disposition rather than take the risk that the pre-sentence report will turn

up some unfavorable aspect of the respondent’s background (such as school problems

that defense counsel does not know about) or indications of the respondent’s bad char-

acter (which might be simply the respondent’s “bad attitude” during the pre-sentence

interview) that might lead the judge to order incarceration. The exception to t his general

rule is the case in wh ich counsel’s own investigat ion of the child’s background and school

records leaves counsel confident that the pre-sentence report will be exemplary and the

juvenile code provides a basis for dismis sing a Petition after conviction on the ground th at

the respondent is not in need of supervision, treatment, or confinement. See§§ 37.02 (e),

38.17(a), 38.19 infra; see also § 19.01 supra.

Occasionally it will be the prosecutor who requests an immediate disposition when

counsel wants time to prepare for the dispositional hearing. In this situation counsel