Juvenile Indigent Defense Delivery System
In New York, all youth in delinquency proceedings are entitled to defense counsel at state expense. N.Y. Fam. Ct. Act § 249. Court appointed counsel may be provided through a legal aid society, contract attorney system, or panel system. N.Y. Fam. Ct. Act § 243(a)-(c).
In New York, the chief administrator of courts is responsible for prescribing workload standards and developing training programs for attorneys for youth. N.Y. Fam. Ct. Act § 249-b(a)(3). Fourth Department panel attorneys must complete training. R. App. Div. 4th Dep’t. 1032.4.
Eligibility for Attorneys for Children Panel
An attorney is eligible for designation as a member of the attorneys for children panel of a county of this department when the attorney is a member of the bar of the state of New York; has attended 17 hours of attorneys for children introductory training sponsored by the attorneys for children program; and has obtained experience in the representation of children by substantial participation as counsel or co-counsel, in:
(a) a juvenile delinquency or person in need of supervision proceeding;
(b) a child abuse, child neglect, or termination of parental rights proceedings; and
(c) a custody or visitation proceedings; and
(d) participation as counsel or co-counsel in, or observation of, two hearings in Family Court
Annual attorneys for children panel for each county. The panel considers from a list of attorneys who have been found competent by family court judges based on:
- Legal knowledge
- Rapport with clients
- Vigorous advocacy
- Case Preparation
- Courtroom demeanor
- Any information contained in annual panel redesignation application. N.Y. Ct. R. § 1032.4.
To be eligible for redesignation to a panel, an attorney for children shall submit a panel redesignation application to the Office of Attorneys for Children on or before January 2nd of each year.
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 when they are subject to any delinquency or person in need of supervision (PINS) proceeding or detained. N.Y. Fam. Ct. Act § 249(a). If independent legal representation is not available in these proceedings, the family court shall appoint counsel for the youth. N.Y. Fam. Ct. Act § 249(a). The first time the youth appears in court, the youth and their parent or other person legally responsible for their care shall be informed of the right to be represented by counsel. N.Y. Fam. Ct. Act § 320.3. If the child’s parent or guardian fails to attend the initial hearing despite reasonable and substantial efforts at notification, the court must appoint an attorney. 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 an attorney whenever independent counsel is not “available” to a youth. N.Y. Fam. Ct. Act § 249(a). There is no means test for a youth or their parents or guardians. N.Y. Fam. Ct. Act § 249(a). The New York legislature recognized that the right to counsel is “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 attorneys for children 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 youth “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 a youth
- The attorney appears and participates in the hearing to waive counsel and
- The court finds, by clear and convincing evidence that
- The minor understands the nature of the charges, the possible dispositional alternatives and the possible defenses to the charges;
- The minor possesses the maturity, knowledge and intelligence necessary to conduct his or her own defense; and
- Waiver of counsel 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 youth or otherwise place restrictions on the youth’s freedom is defined by statute and court rules. In New York, a detention hearing must occur within 72 hours of the youth being detained or the next day court is in session, whichever comes first. N.Y. Fam. Ct. Act § 307.3(4). 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 youth 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 Hearing, N.Y. Fam. Ct. Act § 360.3(4)
- Extension of Placement Action, N.Y. Fam. Ct. Act §§ 360.3(4), 355.3; see In re Michael J., 691 N.Y.S.2d 277 (N.Y. Fam. Ct. Monroe City. 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 youth 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 youth can be adjudicated delinquent is seven. N.Y. Fam. Ct. Act § 301.2(1).
- Juvenile court has jurisdiction over offenses alleged to have been committed prior to a youth’s 17th birthday; after age 17, the youth is charged in adult court. N.Y. Fam. Ct. Act §§ 301.2(1); 302.1. After October 1, 2019, the juvenile court will have jurisdiction over offenses alleged to have been committed prior to a youth’s 18th birthday. N.Y. Fam. Ct. Act § 302.1.
Youth in Adult Court
Currently, family 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.
Commencing October 1, 2018, youth under 17 can be tried in juvenile court; commencing October 1, 2019, youth under 18 can also be tried in juvenile court.
Youth under 17 (and under 18 commencing October 1, 2019) will be tried in family court for all misdemeanor cases (other than vehicle and traffic law misdemeanors). N.Y. Fam. Ct. Act § 301.2A. New “youth part” in criminal court will have jurisdiction over youth accused of felonies. N.Y. Crim. Proc. L. 722.10(1). Non-violent felony cases will be automatically removed to family court within 30 days, unless the District Attorney files a motion demonstrating “extraordinary circumstances” for the case to remain in criminal court. N.Y. Crim. Proc. L. 722.23. Violent felony cases will be heard in criminal court, unless the court finds “extenuating circumstances” to transfer the case to family court. N.Y. Crim. Proc. L. 722.23(2). Certain violent felonies cannot be transferred to family court. N.Y. Crim. Proc. L. § 720.10.
If the youth remains in adult court, the judge must take the “youthful offender” status into account when sentencing. N.Y. Crim. Proc. L. 720.10.
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.