Family Court Act, Article 3, Juvenile Delinquency Part 5, § 353.5: Designated Felony Acts; Restrictive Placement

A juvenile delinquency case has two major parts: the fact-finding hearing and the dispositional hearing. The fact-finding hearing is the phase during which the presentment agency submits evidence to a Family Court judge indicating that the minor committed acts that if committed by an adult would amount to a crime. It is analogous to a criminal trial. Should the Family Court judge conclude that by a preponderance of evidence the minor did in fact commit the acts described in the petition, the next step is the dispositional hearing. The dispositional hearing involves a determination of what type of treatment the minor should receive such as probation, placement or conditional discharge. Under New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.5, an additional disposition is that the minor may be placed in restrictive placement. Restrictive placement means confinement for a period of 3-5 years.

If a minor has been found to have committed acts that amount to a felony, the court will determine whether or not a restrictive placement is required. In making such a determination, the court will consider the following:

1. The needs and best interests of the minor;
2. The minor's background;
3. The nature and circumstances of the offense, including whether any injury was inflicted by the minor;
4. The need for protection of the community; and
5. The age and physical condition of the victim.

If the minor committed a felony and also seriously injured another person, the minor must be ordered to restrictive placement.

A petition was filed alleging that 15-year-old Luis D. committed three designated felony acts as well as three non-designated felonies. After a fact-finding hearing, the Family Court found beyond a reasonable doubt, that Luis D. committed each crime charged. After a lengthy dispositional hearing, pursuant to Family Court Act § 353.5(4) Luis was sent to restrictive placement for the maximum five year period with credit for his time spent in detention. Luis D. was also ordered to complete 200 hours of community service and was required to complete vocational training.

1. Order of disposition: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 352.2
2. Order of protection: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 352.3
3. Conditional discharge: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.1
4. Placement: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.3
5. Restitution: New York Family Court Act, Article 3, Juvenile Delinquency, Part 5, § 353.6

1. Where the respondent is found to have committed a designated felony act, the order of disposition shall be made within twenty days of the conclusion of the dispositional hearing and shall include a finding based on a preponderance of the evidence as to whether, for the purposes of this article, the respondent does or does not require a restrictive placement under this §, in connection with which the court shall make specific written findings of fact as to each of the elements set forth in paragraphs (a) through (e) in subdivision two as related to the particular respondent. If the court finds that a restrictive placement under this § is not required, the court shall enter any other order of disposition provided in § 352.2. If the court finds that a restrictive placement is required, it shall continue the proceeding and enter an order of disposition for a restrictive placement. Every order under this § shall be a dispositional order, shall be made after a dispositional hearing and shall state the grounds for the order.
2. In determining whether a restrictive placement is required, the court shall consider: (a) the needs and best interests of the respondent; (b) the record and background of the respondent, including but not limited to information disclosed in the probation investigation and diagnostic assessment; (c) the nature and circumstances of the offense, including whether any injury was inflicted by the respondent or another participant; (d) the need for protection of the community; and (e) the age and physical condition of the victim.
3. Notwithstanding the provisions of subdivision two, the court shall order a restrictive placement in any case where the respondent is found to have committed a designated felony act in which the respondent inflicted serious physical injury, as that term is defined in subdivision ten of § 10.00 of the penal law, upon another person who is sixty-two years of age or more.
4. When the order is for a restrictive placement in the case of a youth found to have committed a designated class A felony act, (a) the order shall provide that: (i) the respondent shall be placed with the division for youth for an initial period of five years. If the respondent has been in detention pending disposition, the initial period of placement ordered under this § shall be credited with and diminished by the amount of time spent by the respondent in detention prior to the commencement of the placement unless the court finds that all or part of such credit would not serve the needs and best interests of the respondent or the need for protection of the community. (ii) the respondent shall initially be confined in a secure facility for a period set by the order, to be not less than twelve nor more than eighteen months provided, however, where the order of the court is made in compliance with subdivision five the respondent shall initially be confined in a secure facility for eighteen months. (iii) after the period set under clause (ii), the respondent shall be placed in a residential facility for a period of twelve months. (iv) the respondent may not be released from a secure facility or transferred to a facility other than a secure facility during the period provided in clause (ii) of this paragraph, nor may the respondent be released from a residential facility during the period provided in clause (iii). No home visits shall be permitted during the period of secure confinement set by the court order or one year, whichever is less, except for emergency visits for medical treatment or severe illness or death in the family. All home visits must be accompanied home visits: (A) while a youth is confined in a secure facility, whether such confinement is pursuant to a court order or otherwise; (B) while a youth is confined in a residential facility other than a secure facility within six months after confinement in a secure facility; and (C) while a youth is confined in a residential facility other than a secure facility in excess of six months after confinement in a secure facility unless two accompanied home visits have already occurred. An "accompanied home visit" shall mean a home visit during which the youth shall be accompanied at all times while outside the secure or residential facility by appropriate personnel of the division for youth designated pursuant to regulations of the director of the division. (b) Notwithstanding any other provision of law, during the first twelve months of the respondent's placement, no motion, hearing or order may be made, held or granted pursuant to § 355.1; provided, however, that during such period a motion to vacate the order may be made pursuant to 355.1, but only upon grounds set forth in § 440.10 of the criminal procedure law. (c) During the placement or any extension thereof: (i) after the expiration of the period provided in clause (iii) of paragraph (a), the respondent shall not be released from a residential facility without the written approval of the director of the division for youth or his designated deputy director. (ii) the respondent shall be subject to intensive supervision whenever not in a secure or residential facility. (iii) the respondent shall not be discharged from the custody of the division for youth, unless a motion therefor under § 355.1 is granted by the court, which motion shall not be made prior to the expiration of three years of the placement. (iv) unless otherwise specified in the order, the division shall report in writing to the court not less than once every six months during the placement on the status, adjustment and progress of the respondent. (d) Upon the expiration of the initial period of placement, or any extension thereof, the placement may be extended in accordance with § 355.3 on a petition of any party or the division for youth after a dispositional hearing, for an additional period not to exceed twelve months, but no initial placement or extension of placement under this § may continue beyond the respondent's twenty-first birthday. (e) The court may also make an order pursuant to subdivision two of § 353.4.
5. When the order is for a restrictive placement in the case of a youth found to have committed a designated felony act, other than a designated class A felony act, (a) the order shall provide that: (i) the respondent shall be placed with the division for youth for an initial period of three years. If the respondent has been in detention pending disposition, the initial period of placement ordered under this § shall be credited with and diminished by the amount of time spent by the respondent in detention prior to the commencement of the placement unless the court finds that all or part of such credit would not serve the needs and best interests of the respondent or the need for protection of the community. (ii) the respondent shall initially be confined in a secure facility for a period set by the order, to be not less than six nor more than twelve months. (iii) after the period set under clause (ii), the respondent shall be placed in a residential facility for a period set by the order, to be not less than six nor more than twelve months. (iv) the respondent may not be released from a secure facility or transferred to a facility other than a secure facility during the period provided by the court pursuant to clause (ii), nor may the respondent be released from a residential facility during the period provided by the court pursuant to clause (iii). No home visits shall be permitted during the period of secure confinement set by the court order or one year, whichever is less, except for emergency visits for medical treatment or severe illness or death in the family. All home visits must be accompanied home visits: (A) while a youth is confined in a secure facility, whether such confinement is pursuant to a court order or otherwise; (B) while a youth is confined in a residential facility other than a secure facility within six months after confinement in a secure facility; and (C) while a youth is confined in a residential facility other than a secure facility in excess of six months after confinement in a secure facility unless two accompanied home visits have already occurred. An "accompanied home visit" shall mean a home visit during which the youth shall be accompanied at all times while outside the secure or residential facility by appropriate personnel of the division for youth designated pursuant to regulations of the director of the division. (b) Notwithstanding any other provision of law, during the first six months of the respondent's placement, no motion, hearing or order may be made, held or granted pursuant to § 355.1; provided, however, that during such period a motion to vacate the order may be made pursuant to such §, but only upon grounds set forth in § 440.10 of the criminal procedure law. (c) During the placement or any extension thereof: (i) after the expiration of the period provided in clause (iii) of paragraph (a), the respondent shall not be released from a residential facility without the written approval of the director of the division for youth or his designated deputy director. (ii) the respondent shall be subject to intensive supervision whenever not in a secure or residential facility. (iii) the respondent shall not be discharged from the custody of the division for youth. (iv) unless otherwise specified in the order, the division shall report in writing to the court not less than once every six months during the placement on the status, adjustment and progress of the respondent. (d) Upon the expiration of the initial period of placement or any extension thereof, the placement may be extended in accordance with § 355.3 upon petition of any party or the division for youth, after a dispositional hearing, for an additional period not to exceed twelve months, but no initial placement or extension of placement under this § may continue beyond the respondent's twenty-first birthday. (e) The court may also make an order pursuant to subdivision two of § 353.4.
6. When the order is for a restrictive placement in the case of a youth found to have committed any designated felony act and such youth has been found by a court to have committed a designated felony act on a prior occasion, regardless of the age of such youth at the time of commission of such prior act, the order of the court shall be made pursuant to subdivision four.
7. If the dispositional hearing has been adjourned on a finding of specific circumstances pursuant to subdivision six of § 350.1 while the respondent is in detention, where a restrictive placement is subsequently ordered, time spent by the respondent in detention during such additional adjournment shall be credited and applied against any term of secure confinement ordered by the court pursuant to subdivision four or five.
8. The division for youth shall retain the power to continue the confinement of the youth in a secure or other residential facility beyond the periods specified by the court, within the term of the placement.

If your child is a respondent in a juvenile delinquency proceeding, it is important that he or she is represented by experienced counsel both during the fact-finding hearing and during the dispositional hearing. Should your child be adjudicated to be a juvenile delinquent an order of disposition will be issued. The specifics of the order could include the minor being sent to restrictive placement. 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: