N.Y. Comp. Codes R. & Regs. tit. 9 § 354.5

Current through Register Vol. 46, No. 45, November 2, 2024

Section 354.5 - Preliminary probation procedures at intake

(a) Criterion for determining a suitable case.

(1) A suitable case shall meet all the following conditions:

(i) probation intake determines that the case is in the apparent jurisdiction of the Family Court;

(ii) probation intake advises the persons seeking to originate the court proceeding that a petition may be filed any time prior to or during the adjustment period;

(iii) the potential petitioner, the potential respondent and other interested persons, including the victim or injured person, if made a part of the adjustment process, all understand that such process and any agreement derived therein is entirely voluntary and such persons agree to proceed with the adjustment process;

(iv) it appears to probation intake that the case can be adjusted within the time periods required by The Family Court Act and the uniform Family Court rules;

(v) all circumstances in determining whether or not the case is suitable for adjustment under the provisions of The Family Court Act and the uniform Family Court rules have been considered; and

(vi) The Family Court Act, the uniform Family Court rules, a court order, or this Part do not exclude the case from an adjustment.

(b) Excluding nonsuitable cases from adjustment based upon lack of jurisdiction and designation as information only:

(1) Cases shall be excluded from any opportunity for adjustment where the subject of the case is outside the scope of The Family Court Act or where the court otherwise does not appear to have jurisdiction over the case. All other cases which are not preliminary probation procedure cases shall be excluded from any opportunity for adjustment where probation intake does not render intake services although such case is within the jurisdiction of the Family Court.

(2) Where is appears to probation intake that the court would not have jurisdiction over the case, and such case is thereby excluded from any opportunity for adjustment, the potential petitioner shall be informed by probation intake that it is declining to adjust the case for that reason and that a petition may be filed with the court in order to test the question of jurisdiction. All excluded cases shall be designated as information-only cases and do not necessitate the opening of a case file; however, a numerical count shall, at the minimum, be maintained. (Information given over the telephone about a matter within the scope of the act, where an official case file is not opened, shall be recorded as information only.)

(c) Excluding suitable cases from adjustment based upon exclusionary criteria:

(1) Except as provided in the previous subdivision, all other cases shall be excluded from any opportunity for adjustment only whenever one or more of the below-listed exclusionary criteria are present. When a case is so excluded from any opportunity for adjustment, the potential petitioner shall be advised that a petition may be filed with the court. A record shall be maintained whenever a case is excluded from any opportunity for adjustment.

(2) The exclusionary criteria are as follows:

(i) Cases arising under article 4 of the Family Court Act:

(a) the potential petitioner insists upon access to the court and declines to participate in the adjustment process;

(b) the potential petitioner has secured or insists on securing an order of protection including a temporary order of protection;

(c) the potential respondent insists upon access to the court, declines or is unavailable to participate in the adjustment process;

(d) it appears to the probation service that a voluntary agreement will not result during the adjustment process; and

(e) additional written criteria provided by the probation director requires an immediate referral for petition.

(ii) Cases arising under article 8 of the Family Court Act:

(a) the potential petitioner insists upon access to the court and declines to participate in the adjustment process;

(b) the potential petitioner has secured or wishes to secure an order of protection including a temporary order of protection;

(c) the potential respondent insists upon access to the court, declines or is unavailable to participate in the adjustment process;

(d) the person seeking relief wishes to commence a criminal proceeding. (A person wishing to commence a criminal proceeding would not file a petition, but would be referred to the proper official for the filing of an accusatory instrument);

(e) it appears to probation intake that the potential respondent may inflict or threaten to inflict series physical injury to the person seeking relief or any other member of the same family or household if the filing of a petition is delayed;

(f) it appears to probation intake that the conduct which is the basis for a family offense complaint will not cease as a result of any attempt to adjust the complaint; and

(g) additional written criteria provided by a probation director requires an immediate referral for petition.

(d) Criteria for determining when a suitable case is adjusted.

(1) Cases shall be considered adjusted based upon the below-listed criteria:

(i) where the potential petitioner and the potential respondent reach a voluntary agreement that is filed with the court in a case arising under article 4 of The Family Court Act, or achieve a resolution of the complaint or issues raised in the complaint;

(ii) where probation intake in a case arising under article 8 of The Family Court Act has received no other family offense complaints against the potential respondent during the adjustment process, and either a voluntary written agreement between the person seeking relief and the potential respondent to cease the offensive conduct has been filed with the court, or the person seeking relief and the potential respondent have resolved the complaint through conciliation; and

(iii) where the spouses in a matter arising under article 9 of The Family Court Act have agreed to consult with a community agency or have agreed that further court intervention, or counseling, is not necessary to alleviate their marital difficulties.

(e) Termination of adjustment process and criteria.

(1) Where the adjustment process is terminated, based upon the below-listed criteria, the potential petitioner shall be notified that a petition may be filed.

(2) Criteria for termination of the adjustment process are as follows:

(i) the potential petitioner insists upon access to the court;

(ii) the potential petitioner has secured or insists on securing an order of protection including a temporary order of protection;

(iii) the potential respondent fails to cooperate, or fulfill any voluntary agreement;

(iv) it appears to probation intake that in a case arising under article 4 of the Family Court Act there is no reasonable likelihood that a voluntary agreement will be derived;

(v) it appears to probation intake that the conduct forming the basis of a family offense complaint will not cease, or the potential respondent may inflict or threaten to inflict serious physical injury upon the person seeking relief in the family offense case or upon any other member of the same family or household, or the potential respondent in the family offense case may threaten to inflict physical injury on the person seeking relief or any other member of the same family or household;

(vi) those acts or activities agreed upon in the adjustment process have not been completed, are incomplete in their performance, or have been completed unsuccessfully; and

(vii) additional written criteria provided by a probation director require an immediate referral for petition.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 354.5