§ 305.2 — Custody by a peace officer or a police officer without a warrant

New York § 305.2

• Jurisdiction: New York
• Law FCT: Family Court Act
• Part 1: Jurisdiction and Preliminary Procedures
• Art. 3: Juvenile Delinquency

Text

§ 305.2. Custody by a peace officer or a police officer without a\nwarrant. 1. For purposes of this section, the word "officer" means a\npeace officer or a police officer.\n 2. An officer may take a child who may be subject to the provisions of\nthis article for committing an act that would be a crime if committed by\nan adult into custody without a warrant in cases in which the officer\nmay arrest a person for a crime under article one hundred forty of the\ncriminal procedure law.\n 3. If an officer takes such child into custody or if a child is\ndelivered to him under section 305.1, he shall immediately notify the\nparent or other person legally responsible for the child's care, or if\nsuch legally responsible person is unavailable the person with whom the\nchild resides, that the child has been taken into custody.\n 4. After making every reasonable effort to give notice under\nsubdivision three, the officer shall:\n (a) release the child to the custody of his parents or other person\nlegally responsible for his care upon the issuance in accordance with\nsection 307.1 of a family court appearance ticket to the child and the\nperson to whose custody the child is released; or\n (b) forthwith and with all reasonable speed take the child directly,\nand without his first being taken to the police station house, to the\nfamily court located in the county in which the act occasioning the\ntaking into custody allegedly was committed, or, when the family court\nis not in session, to the most accessible magistrate, if any, designated\nby the appellate division of the supreme court in the applicable\ndepartment to conduct a hearing under section 307.4 of this part, unless\nthe officer determines that it is necessary to question the child, in\nwhich case he or she may take the child to a facility designated by the\nchief administrator of the courts as a suitable place for the\nquestioning of children or, upon the consent of a parent or other person\nlegally responsible for the care of the child, to the child's residence\nand there question him or her for a reasonable period of time; or\n (c) take the child to a place certified by the office of children and\nfamily services as a juvenile detention facility for the reception of\nchildren; or\n (d) take the child who such officer has decided to take into custody\nin accordance with this section or section 305.1 of this part for\nviolating the provisions of section 230.00 of the penal law, to an\navailable short-term safe house as defined in subdivision two of section\nfour hundred forty-seven-a of the social services law; or\n (e) take the child, if it appears that such child is a sexually\nexploited child as defined in paragraph (a), (c) or (d) of subdivision\none of section four hundred forty-seven-a of the social services law, to\nan available short-term safe house, but only if the child consents to be\ntaken.\n 5. If such child has allegedly committed a designated felony act as\ndefined in subdivision eight of section 301.2, and the family court in\nthe county is in session, the officer shall forthwith take the child\ndirectly to such family court, unless the officer takes the child to a\nfacility for questioning in accordance with paragraph (b) of subdivision\nfour. If such child has not allegedly committed a designated felony act\nand such family court is in session, the officer shall either forthwith\ntake the child directly to such family court, unless the officer takes\nthe child to a facility for questioning in accordance with paragraph (b)\nof subdivision four or release the child in accordance with paragraph\n(a) of subdivision four.\n 5-a. Where a child is subject to interrogation at a facility\ndesignated by the chief administrator of the courts as a suitable place\nfor the questioning of juveniles pursuant to subdivision four of this\nsection, the entire interrogation, including the giving of any required\nnotice to the child as to his or her rights and the child's waiver of\nany rights, shall be video recorded in a manner consistent with\nstandards established by rule of the division of criminal justice\nservices pursuant to paragraph (e) of subdivision three of section 60.45\nof the criminal procedure law. The interrogation shall be recorded in a\nmanner such that the persons in the recording are identifiable and the\nspeech is intelligible. A copy of the recording shall be subject to\ndiscovery pursuant to section 331.2 of this article.\n 6. In all other cases, and in the absence of special circumstances,\nthe officer shall release the child in accordance with paragraph (a) of\nsubdivision four.\n 7. A child shall not be questioned pursuant to this section unless he\nand a person required to be notified pursuant to subdivision three if\npresent, have been advised:\n (a) of the child's right to remain silent;\n (b) that the statements made by the child may be used in a court of\nlaw;\n (c) of the child's right to have an attorney present at such\nquestioning; and\n (d) of the child's right to have an attorney provided for him without\ncharge if he is indigent.\n 8. In determining the suitability of questioning and determining the\nreasonable period of time for questioning such a child, the child's age,\nthe presence or absence of his or her parents or other persons legally\nresponsible for his or her care, notification pursuant to subdivision\nthree and, where the child has been interrogated at a facility\ndesignated by the chief administrator of the courts as a suitable place\nfor the questioning of juveniles, whether the interrogation was in\ncompliance with the video-recording and disclosure requirements of\nsubdivision five-a of this section shall be included among relevant\nconsiderations.\n