Motion to remove juvenile offender to family court

* § 210.43 Motion to remove juvenile offender to family court.

1. After a motion by a juvenile offender, pursuant to subdivision five
of section 180.75 of this chapter, or after arraignment of a juvenile
offender upon an indictment, the superior court may, on motion of any
party or on its own motion:

(a) except as otherwise provided by paragraph (b), order removal of
the action to the family court pursuant to the provisions of article
seven hundred twenty-five of this chapter, if, after consideration of
the factors set forth in subdivision two of this section, the court
determines that to do so would be in the interests of justice; or

(b) with the consent of the district attorney, order removal of an
action involving an indictment charging a juvenile offender with murder
in the second degree as defined in section 125.25 of the penal law; rape
in the first degree, as defined in subdivision one of section 130.35 of
the penal law; criminal sexual act in the first degree, as defined in
subdivision one of section 130.50 of the penal law; or an armed felony
as defined in paragraph (a) of subdivision forty-one of section 1.20, to
the family court pursuant to the provisions of article seven hundred
twenty-five of this chapter if the court finds one or more of the
following factors: (i) mitigating circumstances that bear directly upon
the manner in which the crime was committed; (ii) where the defendant
was not the sole participant in the crime, the defendant's participation
was relatively minor although not so minor as to constitute a defense to
the prosecution; or (iii) possible deficiencies in the proof of the
crime, and, after consideration of the factors set forth in subdivision
two of this section, the court determined that removal of the action to
the family court would be in the interests of justice.

2. In making its determination pursuant to subdivision one of this
section the court shall, to the extent applicable, examine individually
and collectively, the following:

(a) the seriousness and circumstances of the offense;

(b) the extent of harm caused by the offense;

(c) the evidence of guilt, whether admissible or inadmissible at
trial;

(d) the history, character and condition of the defendant;

(e) the purpose and effect of imposing upon the defendant a sentence
authorized for the offense;

(f) the impact of a removal of the case to the family court on the
safety or welfare of the community;

(g) the impact of a removal of the case to the family court upon the
confidence of the public in the criminal justice system;

(h) where the court deems it appropriate, the attitude of the
complainant or victim with respect to the motion; and

(i) any other relevant fact indicating that a judgment of conviction
in the criminal court would serve no useful purpose.

3. The procedure for bringing on a motion pursuant to subdivision one
of this section, shall accord with the procedure prescribed in
subdivisions one and two of section 210.45 of this article. After all
papers of both parties have been filed and after all documentary
evidence, if any, has been submitted, the court must consider the same
for the purpose of determining whether the motion is determinable on the
motion papers submitted and, if not, may make such inquiry as it deems
necessary for the purpose of making a determination.

4. For the purpose of making a determination pursuant to this section,
any evidence which is not legally privileged may be introduced. If the
defendant testifies, his testimony may not be introduced against him in
any future proceeding, except to impeach his testimony at such future
proceeding as inconsistent prior testimony.

5. a. If the court orders removal of the action to family court, it
shall state on the record the factor or factors upon which its
determination is based, and, the court shall give its reasons for
removal in detail and not in conclusory terms.

b. The district attorney shall state upon the record the reasons for
his consent to removal of the action to the family court. The reasons
shall be stated in detail and not in conclusory terms.

* NB See ch. 59/2017 Pt. WWW § 106 sb b for further contingencies for
10/1/2019