Family Court Act, Article 3, Juvenile Delinquency Part 4 § 340.2: Presiding Judge

When a minor who is under 16 years old and who is at least 7 years old, commits an act which would be classified as a "crime" if the minor was an adult, the minor is referred to as a "juvenile delinquent". The act committed is not called a crime, but a "delinquent act". All juvenile delinquency cases are heard in Family Court. The proceeding is not referred to as a criminal trial but as a fact-finding hearing as described in New York Family Court Act, Article 3, Juvenile Delinquency, Part 4. As outlined in the juvenile delinquency rules, the judge who presides over a juvenile delinquency fact-finding case must preside over the entire fact-finding case until there is a disposition. This is referred to as judicial continuity. However, there are a few exceptions to this general rule. Under New York Family Court Act, Article 3, Juvenile Delinquency, Part 4, § 340.2, the judge presiding over a fact-finding juvenile delinquency may not be excused unless:

1. The judge falls ill, becomes disabled, is on vacation, or is no longer a judge in the county
2. The judge is biased or prejudiced
3. It is not practicable for the judge to preside over the proceedings

Barry G and another minor were accused of acts that if committed by adults would be assault in the third degree, attempted assault in the third degree and menacing in the third degree. The law guardian assigned to the case filed a motion for a mistrial on the basis of judicial bias. The motion was denied. The court noted that in order for a judge to be found to be biased, the evidence must come from external sources. In this case the law guardian based his accusation of bias on a ruling the judge made in the case. In the Matter of Barry G., 2004 NY Slip Op 50885 (NY, 2004)

1. Fact-finding hearing; order of procedure: New York Family Court Act, Article 3, Juvenile Delinquency, Part 4, § 342.1
2. Evidence in fact-finding hearings; required quantum: New York Family Court Act, Article 3, Juvenile Delinquency, Part 4, § 342.2
3. Fact-finding hearing; removal: New York Family Court Act, Article 3, Juvenile Delinquency, Part 4, § 346.1

If a judge is replaced for any reason before a juvenile delinquency case has been resolved, then it would be appropriate for a mistrial to be declared.

1. The judge who presides at the commencement of the fact-finding hearing shall continue to preside until such hearing is concluded and an order entered pursuant to § 345.1 unless a mistrial is declared.
2. The judge who presides at the fact-finding hearing or accepts an admission pursuant to § 321.3 shall preside at any other subsequent hearing in the proceeding, including but not limited to the dispositional hearing.
3. Notwithstanding the provisions of subdivision two, the rules of the family court shall provide for the assignment of the proceeding to another judge of the court when the appropriate judge cannot preside:
   1. by reason of illness, disability, vacation or no longer being a judge of the court in that county; or
   2. by reason of removal from the proceeding due to bias, prejudice or similar grounds; or
   3. because it is not practicable for the judge to preside.
4. The provisions of this § shall not be waived.

If your child has been accused of committing a crime, it is critical that your child has experienced representation. Juvenile delinquency procedure is complicated. The outcome of your child's case could have a significant impact on his or her future. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully representing juvenile clients in New York Family Court as well as in criminal court who have been accused of committing misdemeanors and felonies. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those involved in juvenile delinquency matters in the following locations:

• Bronx
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