2006 New York Code - Designated Felony Acts; Restrictive Placement.

 
    §  353.5.  Designated felony acts; restrictive placement. 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 section, 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 section is not required, the  court  shall  enter  any  other
  order  of disposition provided in section 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 section 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 section 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
  section  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 section 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 section
  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  section  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
  section 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
  section may continue beyond the respondent's twenty-first birthday.
    (e)  The  court  may also make an order pursuant to subdivision two of
  section 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
  section  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 section 355.1; provided, however, that
  during  such period a motion to vacate the order may be made pursuant to
  such section, but only upon grounds set forth in section 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
  section 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 section may continue beyond the respondent's twenty-first birthday.
    (e)  The  court  may also make an order pursuant to subdivision two of
  section 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 section 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.