N.Y. Comp. Codes R. & Regs. tit. 9 § 516.13

Current through Register Vol. 46, No. 25, June 18, 2024

Section 516.13 - Summary courts-martial

(a) Summary courts-martial generally.

(1) Composition. A summary court-martial is composed of one officer. Whenever practicable, a summary court-martial should be an officer whose grade is not below Lieutenant Commander of the Naval Militia or Major of the Army National Guard or Air National Guard. When only one officer is present with a command or detachment, that officer is to be the summary court-martial of that command or detachment. When more than one officer is present with a command or detachment, the convening authority may not be the summary court-martial of that command or detachment.

(2) Function. The function of the summary court-martial is to promptly adjudicate minor offenses under a simple procedure. The summary court-martial is to thoroughly and impartially inquire into both sides of the matter and shall ensure that the interests of both the State and the accused are safeguarded and that justice is done. A summary court-martial may seek advice from a judge advocate or legal officer on questions of law, but the summary court-martial may not seek advice from any person on factual conclusions which should be drawn from evidence or the sentence which should be imposed, as the summary court-martial has the independent duty to make these determinations.

(3) Jurisdiction. Subject to section 516.2 of this Part, summary courts-martial have the power to try persons subject to the code, except officers and warrant officers.

(4) Punishments. Summary courts-martial have the power to sentence to confinement at hard labor not exceeding 25 days; fines not exceeding $25; confinement at hard labor in lieu of fines imposed not exceeding one day for each dollar of fine imposed; forfeiture of pay and allowances not exceeding $25; reprimand; reduction of noncommissioned officers to an inferior grade; and to combine any two or more of such punishments in the sentences imposed (ML, 130.20[c]). Summary courts-martial also may not combine an alternative sentence of confinement at hard labor in lieu of fine with any other sentence authorized in subdivision (d) except reprimand and reduction if the result would exceed the jurisdictional limitations of a summary courts-martial.

(5) Counsel. The accused at a summary court-martial does not have the right to counsel. If the accused has civilian counsel provided by the accused and qualified under N.Y.R.C.M. 502(d)(3), that counsel must be permitted to represent the accused at the summary court-martial if such appearance will not unreasonably delay the proceedings and if military exigencies do not preclude it.

(6) Power to obtain witnesses and evidence. A summary court-martial may obtain evidence pursuant to N.Y.R.C.M. 703.

(b) Convening a summary court-martial.

(1) Who may convene summary courts-martial. Unless limited by competent authority, summary courts-martial may be convened by:

(i) any person who may convene a general or special court-martial;

(ii) the field grade commander of any organization authorized if a commander in the grade of Lieutenant Colonel or equivalent, or higher;

(iii) the commander or officer in charge of any other command when empowered by the Chief of Staff to the Governor;

(iv) a superior competent authority to any of the above.

(2) When convening authority is accuser. If the convening authority or the summary court-martial is the accuser, it is discretionary with the convening authority whether to forward the charges to a superior authority with a recommendation to convene the summary court-martial. If the convening authority or the summary court-martial is the accuser, the jurisdiction of the summary court-martial is not affected.

(3) Procedure. After the requirements of sections 516.3 and 516.4 of this Part have been satisfied, summary courts-martial are to be convened in accordance with N.Y.R.C.M. 504(d)(2). The convening order may be by notation signed by the convening authority on the charge sheet. Charges must be referred to summary courts-martial in accordance with N.Y.R.C.M. 601.

(c) Right to object to trial by summary court-martial. No person who objects thereto before arraignment may be tried by summary court-martial.

(d) Trial procedure.

(1) Pretrial duties.

(i) Examination of file. The summary court-martial must carefully examine the charge sheet, allied papers, and immediately available personnel records of the accused before trial.

(ii) Report of irregularity. The summary court-martial must report to the convening authority any substantial irregularity in the charge sheet, allied papers or personnel records.

(iii) Correction and amendment. The summary court-martial may, subject to N.Y.R.C.M. 603, correct errors on the charge sheet and amend charges and specifications. Any such corrections or amendments must be initialed.

(2) Summary court-martial procedure.

(i) Preliminary proceeding. After complying with N.Y.R.C.M. 1304(a), the summary court-martial must hold a preliminary proceeding during which the accused must be given a copy of the charge sheet and informed of the following:

(a) the general nature of the charges;

(b) the fact that the charges have been referred to a summary court-martial for trial and the date of referral;

(c) the identity of the convening authority;

(d) the name(s) of the accuser(s);

(e) the names of the witnesses who could be called to testify and any documents or physical evidence which the summary court-martial expects to introduce into evidence;

(f) the accused's right to inspect the allied papers and immediately available personnel records;

(g) that during the trial the summary court-martial will not consider any matters, including statements previously made by the accused to the officer detailed as summary court-martial unless admitted in accordance with the Military Rules of Evidence;

(h) the accused's right to plead not guilty or guilty;

(i) the accused's right to cross-examine witnesses and have the summary court- martial cross-examine witnesses on behalf of the accused;

(j) the accused's right to call witnesses and produce evidence with the assistance of the summary court-martial, as necessary;

(k) the accused's right to testify on the merits, or to remain silent with the assurance that no adverse inference will be drawn by the summary court-martial from such silence;

(l) if any findings of guilty are announced, the accused's rights to remain silent, to make an unsworn statement, oral or written or both, and to testify, and to introduce evidence in extenuation or mitigation;

(m) the maximum sentence which the summary court-martial may adjudge if the accused is found guilty of the offense or offenses alleged; and

(n) the accused's right to object to trial by summary court-martial.

(ii) Trial proceeding.

(a) Objection to trial. The summary court-martial must give the accused a reasonable period of time to decide whether to object to trial by summary court-martial. The summary court-martial must thereafter record the response. If the accused objects to trial by summary court-martial, the summary court-martial must return the charge sheet, allied papers, and personnel records to the convening authority. If the accused fails to object to trial by summary court-martial, trial must proceed.

(b) Arraignment. After complying with N.Y.R.C.M. 1304(b)(1) and (2)(A), the summary court-martial must read and show the charges and specifications to the accused and, if necessary, explain them. The accused may waive the reading of the charges. The summary court-martial must then ask the accused to plead to each specification and charge.

(c) Motions. Before receiving pleas the summary court-martial must allow the accused to make motions to dismiss or for other relief. The summary court-martial must take action on behalf of the accused, if requested by the accused, or if it appears necessary in the interests of justice.

(d) Pleas.

(1) Not guilty pleas. When a not guilty plea is entered, the summary court-martial must proceed to trial.

(2) Guilty pleas. If the accused pleads guilty to any offense, the summary court-martial must comply with N.Y.R.C.M. 910.

(3) Rejected guilty pleas. If the summary court-martial is in doubt that the accused's pleas of guilty are voluntarily and understandingly made, or, if at any time during the trial, any matter inconsistent with pleas of guilty arises, which inconsistency cannot be resolved, the summary court-martial must enter not guilty pleas as to the affected charges and specifications.

(4) No pleas. If the accused refuses to plead, the summary court-martial must enter not guilty pleas.

(5) Changed pleas. The accused may change any plea at any time before findings are announced. The accused may change pleas from guilty to not guilty after findings are announced only for good cause.

(e) Presentation of evidence.

(1) The military Rules of Evidence (Part 517 of this Title) apply to summary courts-martial.

(2) The summary court-martial shall arrange for the attendance of necessary witnesses for the prosecution and defense, including those requested by the accused.

(3) Witnesses for the prosecution shall be called first and examined under oath. The accused shall be permitted to cross-examine these witnesses. The summary court-martial must aid the accused in cross-examination if such assistance is requested or appears necessary in the interests of justice. The witnesses for the accused must then be called and similarly examined under oath.

(4) The summary court-martial shall obtain evidence which tends to disprove the accused's guilt or establishes extenuating circumstances.

(f) Findings and sentence.

(1) The summary court-martial shall apply the principles in N.Y.R.C.M. 917 in determining the findings. The summary court-martial shall announce the findings to the accused in open session.

(2) The summary court-martial shall follow the procedures in N.Y.R.C.M. 1001 and apply the principles in the remainder of section 516.10 of this Part in determining a sentence. The summary court-martial shall announce the sentence to the accused in open session.

(3) If the sentence includes confinement, the summary court-martial shall advise the accused of the right to apply to the convening authority for deferment of the service of the confinement.

(4) If the accused is found guilty, the summary court-martial shall advise the accused of the rights under N.Y.R.C.M. 1306(a) and (d) after the sentence is announced.

(5) The summary court-martial shall, as soon as practicable, inform the convening authority of the findings, sentence, recommendations, if any, for suspension of the sentence, and any deferment request.

(6) If the sentence includes confinement, the summary court-martial must cause the delivery of the accused to the accused's commanding officer or the commanding officer's designee.

(e) Record of trial.

(1) In general. The record of trial of a summary court-martial shall be prepared as prescribed in paragraph (2) of this subdivision. The convening or higher authority may prescribe additional requirements for the record of trial.

(2) Contents. The summary court-martial shall prepare an original and at least two copies of the record of trial, which shall include:

(i) the pleas, findings and sentence, and if the accused was represented by counsel at the summary court-martial, a notation to that effect;

(ii) the fact that the accused was advised of the matters set forth in N.Y.R.C.M. 1304(b)(1);

(iii) if the summary court-martial is the convening authority, a notation to that effect.

(3) Authentication. The summary court-martial shall authenticate the record by signing each copy.

(4) Forwarding copies of the record.

(i) Accused's copy.

(a) Service. The summary court-martial shall cause a copy of the record of trial to be served on the accused as soon as it is authenticated.

(b) Receipt. The summary court-martial shall cause the accused's receipt for the copy of the record of trial to be obtained and attached to the original record of trial or shall attach to the original record of trial a certificate that the accused was served a copy of the record. If the record of trial was not served on the accused personally, the summary court- martial shall attach a statement explaining how and when such service was accomplished. If the accused was represented by counsel, such counsel may be served with the record of trial.

(c) Classified information. If classified information is included in the record of trial of a summary court-martial, N.Y.R.C.M. 1104(b)(1)(D) shall apply.

(ii) Forwarding to the convening authority. The original and one copy of the record of trial must be forwarded to the convening authority after compliance with subparagraph (i) of this paragraph.

(iii) Further disposition. After compliance with N.Y.R.C.M. 1306(b) and (c), the record of trial shall be forwarded to DMNA, ATTN: MNPA-PSC for inclusion in the member's permanent 201 file.

(f) Post-trial procedure.

(1) Matters submitted by the accused. After a sentence is adjudged, the accused may submit written matters to the convening authority in accordance with N.Y.R.C.M. 1105.

(2) Convening authority's action.

(i) Who acts. Except as provided herein, the convening authority must take action in accordance with N.Y.R.C.M. 1107. The convening authority cannot take action before the period prescribed in N.Y.R.C.M. 1105(c)(3) has expired, unless the right to submit matters has been waived under N.Y.R.C.M. 1105(d).

(ii) Action. The action of the convening authority must be shown on all copies of the record of trial except that provided the accused if the accused has retained that copy. An order promulgating the result of a trial by summary court-martial need not be issued. A copy of the action must be forwarded to the accused.

(iii) Signature. The action on the original record of trial must be signed by the convening authority. The convening authority's action on other copies of the record of trial must either be signed by the convening authority or be prepared and certified as true copies of the original.

(iv) Subsequent action. Any action on a summary court-martial after the initial action by the convening authority must be in writing, signed by the authority taking the action, and promulgated in appropriate orders.

(3) Review by a judge advocate. The original record of the summary court-martial must be reviewed by a judge advocate in accordance with N.Y.R.C.M. 1112.

(4) Review by the State judge advocate. The accused may request review of a final conviction by summary court-martial by the State judge advocate in accordance with N.Y.R.C.M. 1201(b)(3).

(5) Review by a Board of Military Review. The accused may appeal his conviction or sentence to a Board of Military Review in accordance with N.Y.R.C.M. 1203 where the sentence, as approved, includes confinement.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.13