Rpld §720.15 sub 3, amd CP L, generally; amd §§60.00, 60.02, 80.00 & 80.05, Pen L
Relates to granting certain individuals youthful offender status; adds a new category of individuals eligible for young adult offender status; provides for process and sentencing requirements related to such statuses.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4238
SPONSOR: O'Donnell TITLE OF BILL:
An act to amend the criminal procedure law and the penal law, in
relation to granting certain individuals youthful offender status; to
add a new category of individuals eligible for young adult offender
status; and to repeal certain provisions of the criminal procedure law
relating thereto
PURPOSE OR GENERAL IDEA OF BILL:
To update New York's criminal law to reflect twenty-first century under-
standing of the adolescent brain and criminal culpability, by creating a
new Young Adult Offender status to apply to those who are 19 to 25 years
old at the time of the alleged offense, as well as a new First Offender
status for those 22 or older at the time of the alleged offense.
SUMMARY OF PROVISIONS:
Section 1 of the bill amends section 720.10 of the Criminal Procedure
Law ("CPL"). Section 2 of the bill repeals CPL section 720.15, subdivi-
sions 3 and 4. Section 3 of the bill amends subdivision 1 of CPL section
720.20.
Section 4 of the bill amends CPL section 220.30, subdivision 3, para-
graph (b), subparagraph (i).
Section 5 of the bill amends CPL section 420.30, subdivision 3.
Section 6 of the bill amends CPL section 420.35, subdivision2.
Section 7 of the bill adds a new article 721 to the CPL, entitled Young
Adult Status.
Section 8 of the bill adds a new section 440.48 to the CPL, entitled
Resentencing; youthful offender.
Section 10 of the bill amends Penal Law ("PL") section 60.00, subdivi-
sion 2.
Section 11 of the bill amends PL section 60.02, subdivisions 1 and 3.
Section 12 of the bill amends PL section 80.00, subdivision 4.
Section 13 of the bill amends PL section 80.05, subdivision 6.
Section 14 of the bill is the effective date.
JUSTIFICATION:
Modem neuroscience research shows that an adolescent's brain is not
fully developed until their mid-twenties. As the United States Supreme
Court recognized in Roper v. Simmons, 54.3 U.S. 551 (2005), adolescents
have diminished culpability for their actions as compared to adults.
"Youth are less mature and have an underdeveloped sense of responsibil-
ity; they are more vulnerable to outside pressures, including peer pres-
sure, and other negative influences; and their characters are less well
formed and still developing." Id. at 569-570. Youthful offender (YO)
status recognizes the differences in legal culpability between adoles-
cents and adults and provides a mechanism for different treatment of
young offenders when appropriate. Under the existing YO statute, youth
benefit from reduced sentencing, including alternatives to incarceration
and, because a YO adjudication is sealed to the public, the young person
is protected from devastating collateral consequences associated with a
permanent criminal record, including deportation, eligibility for
student loans, and employment and housing discrimination. All of these
protections are appropriate given the age of the offender. Studies
reviewed and summarized by the National Conference of State Legislatures
support a conclusion that the neurobiological, psychosocial and develop-
mental differences between juveniles and adults continue into the late
teens and early twenties. A longitudinal study conducted by the chief of
Brain Imaging in the Child Psychiatry Branch of the National Institute
of Mental Health concluded that the average human brain is not fully
developed until age 25; critically, the frontal lobe, which is responsi-
ble for functions such as advanced cognition, controlling impulses and
judging consequences, continues to develop into the early twenties. The
MacArthur Foundation has conducted psychosocial and developmental
research that corroborates the neurobiological findings.
New York must update its criminal procedure laws to reflect twenty-first
century understanding of the adolescent brain and criminal culpability.
This bill provides judges the discretion to grant the sealing and
sentencing protections of youthful offender status for youth until their
26th birthday. The bill is also retroactive, in recognition of the enor-
mous harm that New York State has inflicted on youth - and almost exclu-
sively only youth of color - over the past forty years by saddling youth
with a permanent criminal record that stays with them their entire life.
PRIOR LEGISLATIVE HISTORY:
A.3536A (21-22) A.8381A (19-20)
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
November first next succeeding the date on which it shall have become a
law.
STATE OF NEW YORK
________________________________________________________________________
4238
2023-2024 Regular Sessions
IN ASSEMBLY
February 13, 2023
___________
Introduced by M. of A. O'DONNELL -- read once and referred to the
Committee on Codes
AN ACT to amend the criminal procedure law and the penal law, in
relation to granting certain individuals youthful offender status; to
add a new category of individuals eligible for young adult offender
status; and to repeal certain provisions of the criminal procedure law
relating thereto
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 720.10 of the criminal procedure law, as added by
2 chapter 981 of the laws of 1971, subdivision 1 as amended by chapter 411
3 of the laws of 1979, subdivision 2 as amended by chapter 416 of the laws
4 of 1986, paragraph (a) of subdivision 2 as amended by chapter 316 of the
5 laws of 2006, subdivision 3 as amended by chapter 264 of the laws of
6 2003, and subdivisions 4, 5 and 6 as renumbered by chapter 481 of the
7 laws of 1978, is amended to read as follows:
8 § 720.10 Youthful offender procedure; definition of terms.
9 As used in this article, the following terms have the following mean-
10 ings:
11 1. "Youth" means a person charged with a crime alleged to have been
12 committed when he or she was at least sixteen years old and less than
13 nineteen years old or a person charged with being a juvenile offender as
14 defined in subdivision forty-two of section 1.20 of this chapter.
15 2. "Eligible youth" means a youth who is eligible to be found a youth-
16 ful offender. Every youth is so eligible unless:
17 (a) the conviction to be replaced by a youthful offender finding is
18 for (i) a class A-I or class A-II felony, or (ii) [an armed felony as
19 defined in subdivision forty-one of section 1.20, except as provided in
20 subdivision three, or (iii)] rape in the first degree, criminal sexual
21 act in the first degree, or aggravated sexual abuse, except as provided
22 in subdivision three, or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06207-01-3
A. 4238 2
1 (b) such youth has previously been convicted and sentenced for a felo-
2 ny[, or
3 (c) such youth has previously been adjudicated a youthful offender
4 following conviction of a felony or has been adjudicated on or after
5 September first, nineteen hundred seventy-eight a juvenile delinquent
6 who committed a designated felony act as defined in the family court
7 act].
8 3. Notwithstanding the provisions of subdivision two of this section,
9 a youth who has been convicted of [an armed felony offense or of] rape
10 in the first degree, criminal sexual act in the first degree, or aggra-
11 vated sexual abuse is an eligible youth if the court determines that
12 [one or more of the following factors exist:] the interest of justice
13 would be served by relieving the youth from the onus of a criminal
14 record and by not imposing an indeterminate sentence of more than four
15 years. In making such determination, the court shall weigh the follow-
16 ing factors: (i) the circumstances and seriousness of the offense with
17 due regard to the extent of the harm caused by it; (ii) any mitigating
18 circumstances that bear [directly upon] on the manner in which the crime
19 was committed; [or (ii)] (iii) where the [defendant] youth was not the
20 sole participant in the crime, the [defendant's participation was rela-
21 tively minor although not so minor as to constitute a defense to the
22 prosecution] level and extent of his or her direct involvement in the
23 criminal activity; (iv) the history and background of the youth; and (v)
24 prospects for rehabilitation of the youth or opportunities for inter-
25 ventions that would assist the youth in leading a law-abiding life.
26 Where the court determines that the eligible youth is a youthful offen-
27 der, the court shall make a statement on the record of the reasons for
28 its determination, a transcript of which shall be forwarded to the state
29 division of criminal justice services, to be kept in accordance with the
30 provisions of subdivision three of section eight hundred thirty-seven-a
31 of the executive law.
32 4. "Youthful offender finding" means a finding, substituted for the
33 conviction of an eligible youth, pursuant to a determination that the
34 eligible youth is a youthful offender.
35 5. "Youthful offender sentence" means the sentence imposed upon a
36 youthful offender finding.
37 6. "Youthful offender adjudication". A youthful offender adjudication
38 is comprised of a youthful offender finding and the youthful offender
39 sentence imposed thereon and is completed by imposition and entry of the
40 youthful offender sentence.
41 § 2. Subdivision 3 of section 720.15 of the criminal procedure law is
42 REPEALED.
43 § 3. Subdivision 1 of section 720.20 of the criminal procedure law, as
44 amended by chapter 652 of the laws of 1974, is amended to read as
45 follows:
46 1. Upon conviction of an eligible youth, the court must order a pre-
47 sentence investigation of the defendant. After receipt of a written
48 report of the investigation and at the time of pronouncing sentence the
49 court must determine whether or not the eligible youth is a youthful
50 offender. Such determination shall be in accordance with the following
51 criteria:
52 (a) If [in the opinion of the court the interest of justice would be
53 served by relieving the eligible] the eligible youth is charged with a
54 misdemeanor offense, a class D or E felony offense, a class C felony as
55 described in subdivision one of section 160.10 of the penal law or any
56 offense contained in article two hundred twenty of the penal law other
A. 4238 3
1 than a class A-I or A-II felony offense, the court shall find that he or
2 she is a youthful offender.
3 (b) In all other cases, except when the youth is charged with rape in
4 the first degree, and aggravated sexual abuse, there shall be a presump-
5 tion to grant youthful offender status to an eligible youth in order to
6 relieve such youth from the onus of a criminal record [and by not impos-
7 ing], other consequences of a criminal conviction, and the imposition of
8 an indeterminate term of imprisonment of more than four years[, the
9 court may, in its discretion, find the eligible youth is a youthful
10 offender; and
11 (b) Where the conviction is had in a local criminal court and the
12 eligible youth had not prior to commencement of trial or entry of a plea
13 of guilty been convicted of a crime or found a youthful offender, the
14 court must find he is a youthful offender]. Upon motion of not less
15 than seven days' notice, the prosecutor may challenge the presumption to
16 grant youthful offender status. The court shall grant youthful offender
17 status unless the prosecutor rebuts the presumption and establishes by
18 clear and convincing evidence that the criteria set forth in subdivision
19 two of section 720.10 of this article require that youthful offender
20 status be denied.
21 § 4. Section 720.35 of the criminal procedure law, as added by chapter
22 981 of the laws of 1971, subdivision 1 as amended by chapter 23 of the
23 laws of 2021, subdivisions 2 and 4 as amended by section 87 of subpart B
24 of part C of chapter 62 of the laws of 2011 and subdivision 3 as amended
25 by chapter 181 of the laws of 2000, is amended to read as follows:
26 § 720.35 Youthful offender adjudication; effect thereof; records.
27 1. A youthful offender or young adult adjudication is not a judgment
28 of conviction for a crime or any other offense, and does not operate as
29 a disqualification of any person so adjudged to hold public office or
30 public employment or to receive any license granted by public authority
31 but shall be deemed a conviction only for the purposes of transfer of
32 supervision and custody pursuant to section two hundred fifty-nine-m of
33 the executive law. A defendant for whom a youthful offender adjudication
34 was substituted, who was originally charged with prostitution as defined
35 in section 230.00 of the penal law, shall be deemed a "sexually
36 exploited child" as defined in subdivision one of section four hundred
37 forty-seven-a of the social services law and therefore shall not be
38 considered an adult for purposes related to the charges in the youthful
39 offender proceeding or a proceeding under section 170.80 of this chap-
40 ter.
41 2. Except where specifically required or permitted by statute or upon
42 specific authorization of the court, all official records and papers,
43 whether on file with the court, a police agency or the division of crim-
44 inal justice services, relating to a case involving a youth or young
45 adult who has been adjudicated a youthful offender or granted a young
46 adult status finding, are confidential and may not be made available to
47 any person or public or private agency, other than the designated educa-
48 tional official of the public or private elementary or secondary school
49 in which the youth or young adult is enrolled as a student provided that
50 such local educational official shall only have made available a notice
51 of such adjudication and shall not have access to any other official
52 records and papers, such youth or young adult or such youth's or young
53 adult's designated agent (but only where the official records and papers
54 sought are on file with a court and request therefor is made to that
55 court or to a clerk thereof), an institution to which such youth or
56 young adult has been committed, the department of corrections and commu-
A. 4238 4
1 nity supervision and a probation department of this state that requires
2 such official records and papers for the purpose of carrying out duties
3 specifically authorized by law; provided, however, that information
4 regarding an order of protection or temporary order of protection issued
5 pursuant to section 530.12 of this chapter or a warrant issued in
6 connection therewith may be maintained on the statewide automated order
7 of protection and warrant registry established pursuant to section two
8 hundred twenty-one-a of the executive law during the period that such
9 order of protection or temporary order of protection is in full force
10 and effect or during which such warrant may be executed. Such confiden-
11 tial information may be made available pursuant to law only for purposes
12 of adjudicating or enforcing such order of protection or temporary order
13 of protection and, where provided to a designated educational official,
14 as defined in section 380.90 of this chapter, for purposes related to
15 the execution of the student's educational plan, where applicable,
16 successful school adjustment and reentry into the community. Such
17 notification shall be kept separate and apart from such student's school
18 records and shall be accessible only by the designated educational offi-
19 cial. Such notification shall not be part of such student's permanent
20 school record and shall not be appended to or included in any documenta-
21 tion regarding such student and shall be destroyed at such time as such
22 student is no longer enrolled in the school district. At no time shall
23 such notification be used for any purpose other than those specified in
24 this subdivision.
25 3. If a youth or young adult who has been adjudicated a youthful
26 offender or granted a young adult status finding is enrolled as a
27 student in a public or private elementary or secondary school the court
28 that has [adjudicated the youth as a] made the youthful offender or
29 young adult adjudication shall provide notification of such adjudication
30 to the designated educational official of the school in which such youth
31 or young adult is enrolled as a student. Such notification shall be
32 used by the designated educational official only for purposes related to
33 the execution of the student's educational plan, where applicable,
34 successful school adjustment and reentry into the community. Such
35 notification shall be kept separate and apart from such student's school
36 records and shall be accessible only by the designated educational offi-
37 cial. Such notification shall not be part of such student's permanent
38 school record and shall not be appended to or included in any documenta-
39 tion regarding such student and shall be destroyed at such time as such
40 student is no longer enrolled in the school district. At no time shall
41 such notification be used for any purpose other than those specified in
42 this subdivision.
43 4. Notwithstanding subdivision two of this section, whenever a person
44 is adjudicated a youthful offender or granted young adult status and the
45 conviction that was vacated and replaced by the youthful offender or
46 young adult status finding was for a sex offense as that term is defined
47 in article ten of the mental hygiene law, all records pertaining to the
48 youthful offender or young adult adjudication shall be included in those
49 records and reports that may be obtained by the commissioner of mental
50 health or the commissioner of developmental disabilities, as appropri-
51 ate; the case review panel; and the attorney general pursuant to section
52 10.05 of the mental hygiene law.
53 § 5. Subparagraph (i) of paragraph (b) of subdivision 3 of section
54 220.30 of the criminal procedure law, as amended by chapter 410 of the
55 laws of 1979, is amended to read as follows:
A. 4238 5
1 (i) A plea of guilty, whether to the entire indictment or to part of
2 the indictment for any crime other than a class A felony, may not be
3 accepted on the condition that it constitutes a complete disposition of
4 one or more other indictments against the defendant wherein is charged a
5 class A-I felony as defined in article two hundred twenty of the penal
6 law or the attempt to commit any such class A-I felony, except that [an
7 eligible youth, as defined in subdivision two of section 720.10, may
8 plea to a class B felony, upon consent of the district attorney, for
9 purposes of adjudication as a youthful offender] this restriction shall
10 not apply to an eligible youth, as defined in subdivision two of section
11 720.10 of this chapter, or an eligible young adult, as defined in subdi-
12 vision two of section 721.10 of this chapter.
13 § 6. Subdivision 3 of section 420.30 of the criminal procedure law, as
14 amended by chapter 144 of the laws of 2020, is amended to read as
15 follows:
16 3. Restrictions. Except as provided for in subdivision two-a of
17 section 420.35 of this article, in no event shall a mandatory surcharge,
18 sex offender registration fee, DNA databank fee or crime victim assist-
19 ance fee be remitted. In no event shall such fees be imposed for a
20 juvenile offender, a youthful offender or a young adult status finding.
21 § 7. Subdivision 2 of section 420.35 of the criminal procedure law, as
22 amended by chapter 23 of the laws of 2021, is amended as follows:
23 2. Except as provided in this subdivision or subdivision two-a of this
24 section, under no circumstances shall the mandatory surcharge, sex
25 offender registration fee, DNA databank fee or the crime victim assist-
26 ance fee be waived. A court shall waive any mandatory surcharge, DNA
27 databank fee and crime victim assistance fee when: (i) the defendant is
28 convicted of prostitution under section 230.00 of the penal law; (ii)
29 the defendant is convicted of a violation in the event such conviction
30 is in lieu of a plea to or conviction for prostitution under section
31 230.00 of the penal law; (iii) the court finds that a defendant is a
32 victim of sex trafficking under section 230.34 of the penal law or a
33 victim of trafficking in persons under the trafficking victims
34 protection act (United States Code, Title 22, Chapter 78); [or] (iv) the
35 court finds that the defendant is a victim of sex trafficking of a child
36 under section 230.34-a of the penal law; or (v) the court determines
37 that the defendant is a youthful offender pursuant to section 720.00 of
38 this chapter or the court grants the defendant young adult status pursu-
39 ant to section 721.00 of this chapter.
40 § 8. The criminal procedure law is amended by adding a new article 721
41 to read as follows:
42 ARTICLE 721
43 YOUNG ADULT STATUS
44 Section 721.10 Young adult status procedure; definition of terms.
45 721.15 Young adult status procedure; sealing of accusatory
46 instrument; privacy of proceedings; preliminary
47 instructions to jury.
48 721.20 Young adult status determination; when and how made;
49 procedure thereupon.
50 721.30 Young adult adjudication; post-judgment motions and
51 appeal.
52 721.35 Young adult adjudication; effect thereof; records.
53 § 721.10 Young adult status procedure; definition of terms.
54 As used in this article, the following terms have the following mean-
55 ings:
A. 4238 6
1 1. "Young adult" means a person charged with a crime alleged to have
2 been committed when he or she was at least nineteen years old and less
3 than twenty-six years old.
4 2. "Eligible young adult" means a person who is at least nineteen
5 years old and less than twenty-six years old who is eligible for young
6 adult status. Every young adult is so eligible unless: (a) the
7 conviction to be replaced by young adult adjudication is for (i) a class
8 A-I or class A-II felony, or (ii) rape in the first degree, criminal
9 sexual act in the first degree, or aggravated sexual abuse, except as
10 provided in subdivision three of this section, or (b) such young adult
11 has previously been convicted and sentenced for a felony.
12 3. Notwithstanding the provisions of subdivision two of this section,
13 a young adult who has been convicted of rape in the first degree, crimi-
14 nal sexual act in the first degree, or aggravated sexual abuse is an
15 eligible youth if the court determines, without applying the presumption
16 defined in paragraph (b) of subdivision one of section 721.20 of this
17 article, that the interest of justice would be served by relieving the
18 young adult from the onus of a criminal record and by not imposing an
19 indeterminate sentence of more than four years. In making such determi-
20 nation, the court shall weigh the following factors:
21 (a) The circumstances and seriousness of the offense with due regard
22 to the extent of the harm caused by it.
23 (b) Any mitigating circumstances that bear on the manner in which the
24 crime was committed.
25 (c) Where the young adult was not the sole participant in the crime,
26 the level and extent of his or her direct involvement in the criminal
27 activity.
28 (d) The history and background of the young adult.
29 (e) Prospects for rehabilitation of the young adult or opportunities
30 for interventions that would assist the young adult in leading a law-a-
31 biding life.
32 Where the court makes a young adult status finding, the court shall
33 make a statement on the record of the reasons for its determination, a
34 transcript of which shall be forwarded to the state division of criminal
35 justice services, to be kept in accordance with the provisions of subdi-
36 vision three of section eight hundred thirty-seven-a of the executive
37 law.
38 4. "Young adult finding" means a finding, substituted for the
39 conviction of an eligible young adult, pursuant to a determination that
40 the eligible young adult shall be granted young adult status.
41 5. "Young adult sentence" means the sentence imposed upon a young
42 adult finding.
43 6. "Young adult adjudication" means an adjudication comprised of a
44 young adult finding and the young adult sentence imposed thereon and is
45 completed by imposition and entry of the young adult sentence.
46 § 721.15 Young adult status procedure; sealing of accusatory instrument;
47 privacy of proceedings; preliminary instructions to jury.
48 1. When an accusatory instrument against an apparently eligible young
49 adult is filed with a court, it shall be filed as a sealed instrument,
50 though only with respect to the public.
51 2. When an eligible young adult is initially arraigned upon an accusa-
52 tory instrument, such arraignment and all proceedings in the action
53 thereafter may, in the discretion of the court and with the consent of
54 the accused, be conducted in private.
55 § 721.20 Young adult status determination; when and how made; procedure
56 thereupon.
A. 4238 7
1 1. Upon conviction of an eligible young adult, the court shall order a
2 pre-sentence investigation of the defendant. After receipt of a written
3 report of the investigation and at the time of pronouncing sentence the
4 court shall determine whether or not the eligible youth will receive
5 young adult status. Such determination shall be in accordance with the
6 following criteria:
7 (a) If the eligible young adult is charged with a misdemeanor offense,
8 the court shall grant him or her young adult status;
9 (b) In all other cases, except rape in the first degree, criminal
10 sexual act in the first degree, and aggravated sexual abuse, there shall
11 be a presumption to grant eligible young adult status to an eligible
12 young adult in order to relieve such young adult from the onus of a
13 criminal record, other consequences of a criminal conviction, and the
14 imposition of an indeterminate term of imprisonment of more than four
15 years. Upon motion on not less than seven days' notice, the prosecutor
16 may challenge the presumption to grant young adult status. The court
17 shall grant young adult status unless the prosecutor rebuts the presump-
18 tion and establishes by clear and convincing evidence that the criteria
19 set forth in subdivision two of section 721.10 of this article require
20 that young adult status be denied.
21 2. Where an eligible young adult is convicted of two or more crimes or
22 offenses set forth in separate counts of an accusatory instrument or set
23 forth in two or more accusatory instruments consolidated for trial
24 purposes, the court shall not grant him or her young adult status with
25 respect to any such conviction pursuant to subdivision one of this
26 section unless it grants young adult status with respect to all such
27 convictions.
28 3. Upon determining to grant young adult status, the court shall
29 direct that the conviction be deemed vacated and replaced by a young
30 adult status finding; and the court shall sentence the young adult
31 pursuant to section 60.02 of the penal law.
32 4. Upon determining that an eligible young adult shall not be granted
33 young adult status, the court shall order the accusatory instrument
34 unsealed and continue the action to judgment pursuant to the ordinary
35 rules governing criminal prosecutions.
36 § 721.30 Young adult adjudication; post-judgment motions and appeal.
37 The provisions of this chapter, governing the making and determination
38 of post-judgment motions and the taking and determination of appeals in
39 criminal cases, apply to post judgment motions and appeals with respect
40 to young adult adjudications wherever such provisions can reasonably be
41 so applied.
42 § 721.35 Young adult adjudication; effect thereof; records.
43 1. A young adult adjudication is not a judgment of conviction for a
44 crime or any other offense, and does not operate as a disqualification
45 of any person so adjudged to hold public office or public employment or
46 to receive any license granted by public authority but shall be deemed a
47 conviction only for the purposes of transfer of supervision and custody
48 pursuant to section two hundred fifty-nine-m of the executive law.
49 2. Upon receipt of notification of a young adult adjudication, such
50 adjudication and all records thereof shall be sealed in the same manner
51 as defined in section 720.35 of this title; and such records shall not
52 be available except where specifically required by statute or upon
53 specific authorization by the court.
54 § 9. The criminal procedure law is amended by adding a new section
55 440.49 to read as follows:
56 § 440.49 Resentencing; youthful offender.
A. 4238 8
1 1. Any person under the age of twenty-six at the time the crime was
2 committed who was convicted of a misdemeanor or violation offense who
3 would have been considered an "eligible youth" pursuant to subdivision
4 two of section 720.10 of this chapter and an "eligible young adult"
5 pursuant to subdivision two of section 721.10 of this chapter after the
6 effective date of this section shall have their conviction automatically
7 replaced with a youthful offender adjudication or young adult offender
8 adjudication within six months of the statute's effective date. The
9 division of criminal justice services shall establish standards to
10 ensure that such process occurs automatically for all persons prior to
11 such six month deadline.
12 2. Any person under the age of twenty-six at the time the crime was
13 committed who would have been considered an "eligible youth" pursuant to
14 subdivision two of section 720.10 of this chapter and an "eligible young
15 adult" pursuant to subdivision two of section 721.10 of this chapter
16 after the effective date of this section, upon notice to the appropriate
17 district attorney, may petition to be resentenced to a youthful offender
18 adjudication or young adult offender adjudication in accordance with
19 articles seven hundred twenty and seven hundred twenty-one of this chap-
20 ter in the court which imposed such sentence. Even if a person is eligi-
21 ble for automatic youthful offender adjudication or young adult offender
22 adjudication sealing pursuant to subdivision one of this section, such
23 person may still petition the court for resentencing prior to the six
24 month period described in subdivision one of this section.
25 3. The court shall consider the factors outlined in subdivision two of
26 section 720.20 and subdivision two of section 721.20 of this chapter in
27 determining whether or not a person who would have been an eligible
28 youth may or shall be granted youthful offender status or young adult
29 offender status for the prior conviction.
30 (a) In cases where granting youthful offender status or young adult
31 offender status is discretionary and not required by paragraph (a) of
32 subdivision one of section 720.20 or paragraph (a) of subdivision one of
33 section 721.20 of this chapter, the court shall also consider any addi-
34 tional evidence presented by the person seeking resentencing, including:
35 (i) the amount of time that has elapsed since the petitioner's last
36 conviction;
37 (ii) the character of the petitioner, including any measures that he
38 or she has taken towards rehabilitation, such as participating in treat-
39 ment programs, work, or schooling, and participating in community
40 service or other volunteer programs;
41 (iii) the circumstances and seriousness of the offense for which the
42 petitioner is seeking relief;
43 (iv) the impact of sealing the petitioner's record upon his or her
44 rehabilitation and upon his or her successful and productive reentry and
45 reintegration into society; and
46 (v) the impact of collateral consequences of the conviction on the
47 defendant and his or her family.
48 (b) The district attorney may challenge the presumption to grant
49 youthful offender status pursuant to paragraph (b) of subdivision one of
50 section 720.20 and paragraph (b) of subdivision one of section 721.20 of
51 this chapter.
52 4. Subdivision one of section seven hundred seventeen and subdivision
53 four of section seven hundred twenty-two of the county law, and the
54 related provisions of article eighteen-A of such law shall apply to the
55 preparation and proceedings on motions pursuant to this section, includ-
56 ing any appeals.
A. 4238 9
1 § 10. Section 450.10 of the criminal procedure law is amended by
2 adding a new subdivision 6 to read as follows:
3 6. An order denying a motion, made pursuant to section 440.49 of this
4 title, for granting youthful offender or young adult status.
5 § 11. Subdivision 2 of section 60.00 of the penal law, as added by
6 chapter 481 of the laws of 1978, is amended and a new subdivision 3 is
7 added to read as follows:
8 2. The sole provision of this article that shall apply in the case of
9 an offense committed by a juvenile offender [is] or a defendant adjudi-
10 cated a youthful offender or young adult in section 60.10 of this arti-
11 cle and no other provisions of this article shall be deemed or construed
12 to apply in any such case.
13 3. The sole provisions of this article that may apply in the case of
14 an offense committed by a defendant adjudicated a youthful offender or
15 young adult status are sections 60.02 and 60.10-a of this article and no
16 other provisions of this article shall be deemed or construed to apply
17 in any such case.
18 § 12. Subdivisions 1 and 2 of section 60.02 of the penal law, as
19 amended by chapter 471 of the laws of 1980, are amended and a new subdi-
20 vision 3 is added to read as follows:
21 (1) If the sentence is to be imposed upon a youthful offender or young
22 adult status finding which has been substituted for a conviction of an
23 offense other than a felony, the court must impose a sentence authorized
24 for the offense for which the youthful offender or young adult finding
25 was substituted[, except that if the youthful offender finding was
26 entered pursuant to paragraph (b) of subdivision one of section 720.20
27 of the criminal procedure law,] where the conviction is for a misdemea-
28 nor the court must not impose a definite or intermittent sentence of
29 imprisonment with a term of more than six months; or
30 (2) If the sentence is to be imposed upon a youthful offender finding
31 which has been substituted for a conviction for any felony, the court
32 must impose a sentence authorized to be imposed upon a person convicted
33 of a class E felony [provided, however, that the court must not impose a
34 sentence of conditional discharge or unconditional discharge if the
35 youthful offender finding was substituted for a conviction of a felony
36 defined in article two hundred twenty of this chapter].
37 3. If the sentence is to be imposed upon a young adult status finding
38 which has been substituted for a conviction for any felony, the court
39 shall impose a sentence authorized to be imposed upon a person convicted
40 of a class E felony.
41 § 13. Subdivision 4 of section 80.00 of the penal law, as amended by
42 chapter 338 of the laws of 1989, is amended to read as follows:
43 4. Exception. The provisions of this section shall not apply to a
44 corporation, or to a youthful offender finding as defined in section
45 720.10 of the criminal procedure law or young adult status finding as
46 defined in section 721.10 of the criminal procedure law.
47 § 14. Subdivision 6 of section 80.05 of the penal law is amended to
48 read as follows:
49 6. Exception. The provisions of this section shall not apply to a
50 corporation, or to a youthful offender finding as defined in section
51 720.10 of the criminal procedure law or young adult status finding as
52 defined in section 721.10 of the criminal procedure law.
53 § 15. Subdivision 4 of section 340.40 of the criminal procedure law,
54 as amended by chapter 806 of the laws of 2021, is amended to read as
55 follows:
A. 4238 10
1 4. Notwithstanding any other provision of law, [in any local criminal
2 court] the trial of a person who is an eligible youth within the meaning
3 of the youthful offender procedure set forth in article seven hundred
4 twenty of this chapter [and who has not prior to commencement of the
5 trial been convicted of a crime or adjudicated a youthful offender must
6 be] shall be a jury trial or, where the eligible youth has waived a jury
7 trial pursuant to section 320.10 of this part, a single judge trial.
8 § 16. This act shall take effect on the first of November next
9 succeeding the date on which it shall have become a law and shall apply
10 to any criminal case pending on such effective date.
