Juvenile Indigent Defense Delivery System
In New York, all children in delinquency proceedings are entitled to defense counsel (called a law guardian) at state expense. N.Y. Fam. Ct. Act § 249. The law guardians may be provided through a legal aid society, contract attorney system, or panel system. N.Y. Fam. Ct. Act § 243.
In New York, the Chief Administrator of Courts is responsible for developing training programs for attorneys for children (N.Y. Fam. Ct. Act § 249-b), and Fourth Department panel attorneys must complete training (R. App. Div. 4th Dep’t. 1032.4). Law guardians must receive training about domestic violence. (N.Y. Fam. Ct. Act § 249-b).
In addition to statutes and case law, juvenile court proceedings are governed by court rules. These are often promulgated at the state level, but may also be passed at the local court level instead of or in addition to statewide rules. New York’s delinquency proceedings are governed by the Uniform Rules for N.Y.S. Trial Courts, Part 205, Uniform Rules for the Family Court.
Right to Counsel
Beyond the right to counsel in juvenile court guaranteed by the Due Process Clause of the United States Constitution and In re Gault, 387 U.S. 1 (1967), states often have state constitution or statutory provisions further expanding upon on or delineating that right.
In New York, youth in juvenile court have the right to counsel in any delinquency or Person In Need of Supervision proceeding. N.Y. Fam. Ct. Act § 249(a). If “independent legal representation is not available to a minor” in these proceedings, the family court shall appoint counsel for the minor. N.Y. Fam. Ct. Act § 249(a). The first time the youth appears in court, the youth and his or her parent or other person legally responsible for his or her care shall be informed of the right to counsel. N.Y. Fam. Ct. Act § 320.3. If the child’s parent or guardian fails to attend the initial hearing despite reasonable efforts at notification, the court must appoint a law guardian. N.Y. Fam. Ct. Act § 320.3.
Determination of Indigence
New York has no stated presumption of indigence in juvenile court proceedings, but the court appoints a law guardian whenever independent counsel is not “available” to a child. N.Y. Fam. Ct. Act § 249. There is no means test for the child or his or her parents or guardians. N.Y. Fam. Ct. Act § 249. The NY legislature recognized that “counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition” and it established “a system of law guardians for minors who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court.” N.Y. Fam. Ct. Act § 241.
Waiver of Counsel
New York law presumes that juveniles “lack the requisite knowledge and maturity to waive the appointment of an attorney.” N.Y. Fam. Ct. Act § 249-a. The presumption may be rebutted only after:
- A court hearing is held on the waiver;
- An attorney has been appointed for the child and participates in the hearing to waive counsel;
- The court finds, by clear and convincing evidence that:
(a) The minor understands the nature of the charges, the possible dispositional alternatives and the possible defenses to the charges;
(b) The minor possesses the maturity, knowledge and intelligence necessary to conduct his or her own defense.
(c) Waiver is in the best interest of the minor.
N.Y. Fam. Ct. Act § 249-a.
When and how the court may decide to detain a child or otherwise place restrictions on the child’s freedom is defined by statute and court rules. In New York, a detention hearing must occur within 72 hours of the child being detained or the next day court is in session, whichever comes first. N.Y. Fam. Ct. Act § 307.3. Provisions for the detention of juveniles are found in N.Y. Fam. Ct. Act §§ 305.2, 307.3, 307.4, 320.2, 320.5, and 325.1, and N.Y. Crim. Proc. Law § 510.15.
The U.S. Constitution and Supreme Court case law are also sources of due process rights beyond local and state statutes and provisions. NJDC’s Detention Page provides more information about detaining youth.
The legal needs of children in the delinquency system rarely end at disposition, and states vary in the way they provide a right to representation on these post-disposition issues. New York statutes list three post-disposition proceedings at which youth have a right to counsel.
In New York, youth have a right to counsel in the following post-disposition proceedings:
- Appeal, N.Y. Fam. Ct. Act §§ 354.2; 1120.
- Probation Violation, N.Y. Fam. Ct. Act § 360.3
- Extension of placement action, N.Y. Fam. Ct. Act §§ 360.3; 355.3; see In re Michael J., 180 Misc.2d 538 (N.Y. Fam. Ct. Monroe Cty. 1999).
NJDC’s Post-Disposition Page has more information on this topic from a national perspective.
Ages of Juvenile Court Jurisdiction
The age of a child who comes within the jurisdiction of the state’s juvenile courts is defined by state law. In New York:
- The youngest age at which a juvenile can be adjudicated delinquent is seven, N.Y. Fam. Ct. Act § 301.2;
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a child’s 16th birthday; after age 16, the youth is charged in adult court, N.Y. Fam. Ct. Act §§ 301.2, 302.1;
Youth in Adult Court
Despite the existence of juvenile courts, many youth are still tried as adults. Aside from the fact that New York tries all youth 16 or older as adults, New York has one other way that juveniles can be prosecuted as adults:
- Statutory Exclusion: youth aged 13 and older are tried in adult court for certain statutorily-delineated felonies. N.Y. Fam. Ct. Act § 301.2.
NJDC conducts statewide assessments of access to counsel and the quality of juvenile defense representation in delinquency proceedings around the country. These assessments provide a state with baseline information about the nature and efficacy of its juvenile indigent defense structures, highlight the strengths and weaknesses of the indigent juvenile defense system, and provide tailored recommendations that address each state’s distinctive characteristics to help decision-makers focus on key trouble spots and highlight best practices. The NJDC State Assessment Page provides more information about state assessments.
NJDC has not yet conducted an assessment of the juvenile indigent defense system in New York. If you would like to collaborate with NJDC to fundraise for, plan, or engage in an assessment in this state, please contact us.