N.Y. Comp. Codes R. & Regs. tit. 9 § 516.3

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

Section 516.3 - Initiation of charges; apprehension; pretrial restraint; related matters

(a) Report of offense.

(1) Who may report. Any person may report an offense subject to trial by court-martial.

(2) To whom reports conveyed for disposition. Ordinarily, any military authority who receivea a report of an offense shall forward as soon as practicable the report and any accompanying information to the immediate commander of the suspect. Competent authority superior to that commander may direct otherwise.

(b) Apprehension.

(1) Definition and scope.

(i) Definition. Apprehension is the taking of a person into custody. (ML, 130.7 [a]).

(ii) Scope. This subdivision applies only to apprehensions made by persons authorized to do so under paragraph (2) of this subdivision with respect to offenses subject to trial by court-martial. Nothing in this subdivision limits the authority of the Federal or State law enforcement officials to apprehend persons, whether or not subject to trial by court-martial, to the extent permitted by applicable enabling statutes and other law. Nothing in this subdivision shall be construed to limit the authority of persons authorized to apprehend offenders to secure the custody of an alleged offender until proper authority may be notified (ML, 130.9[e]).

(2) Who may apprehend. The following officials may apprehend any person subject to trial by court-martial (see ML, 130.7):

(i) Military law enforcement officials. Security police, military police, master-at-arms personnel, members of the shore patrol, and persons designated by proper authorities to perform military criminal investigative, guard, or police duties, whether subject to the code or not, when, in each of the foregoing instances, the official making the apprehension is in the execution of law enforcement duties.

(ii) Civilian law enforcement officials. Peace officers acting pursuant to their special duties and police officers.

(iii) Commissioned, warrant, petty, and noncommissioned officers. All commissioned, warrant, petty, and noncommissioned officers on active State duty, annual training, or during inactive duty training or when on any ordered military duty.

(iv) Civilians authorized to apprehend deserters. Under ML, 130.8, any civil officer having authority to apprehend offenders under laws of the United States of any state, territory, commonwealth, or possession, when the apprehension is of a deserter from the organized militia.

(3) Grounds for apprehension. A person subject to the code may be apprehended for an offense triable by court-martial upon probable cause to apprehend (see also ML, 130.9[d]). Probable cause to apprehend exists when there are reasonable grounds to believe that an offense has been or is being committed and the person to be apprehended committed or is committing it. Persons authorized to apprehend under subparagraph (2)(iii) of this subdivision may also apprehend persons subject to the code who take part in quarrels, frays, or disorders among persons subject to the code, wherever they occur.

(4) How an apprehension may be made.

(i) In general. An apprehension is made by clearly notifying the person to be apprehended that that person is in custody. This notice must be given orally or in writing (ML, 130.9[b] and [c]).

(ii) Warrants. Neither warrants nor any other authorization shall be required for an apprehension under these rules except as required in subparagraph (5)(ii) of this subdivision.

(iii) Use of force. Any person authorized under these rules to make an apprehension may use such force and means as reasonably necessary under the circumstances to effect the apprehension.

(5) Where an apprehension may be made.

(i) In general. An apprehension may be made at any place, except as provided in subparagraph (ii) of this paragraph.

(ii) Private dwellings. A private dwelling includes dwellings, on or off a military installation, such as single family houses, duplexes, and apartments. The quarters may be owned, leased, or rented by the residents, or assigned, and may be occupied on a temporary or permanent basis. "Private dwelling" does not include the following, whether or not subdivided into individual units: living areas in military barracks, vessels, aircraft, vehicles, tents, bunkers, field encampments, and similar places. No person may enter a private dwelling for the purpose of making an apprehension under these rules unless:

(a) Pursuant to consent under Mil. R. Evid. 314(e) or 316(d)(2);

(b) Under exigent circumstances described in Mil. R. Evid. 315(g) or 316(d)(4)(B);

(c) In the case of a private dwelling which is military property or under military control, or nonmilitary property in a foreign country:

(1) if the person to be apprehended is a resident of the private dwelling, there exists, at the time of the entry, reason to believe that the person to be apprehended is present in the dwelling, and the apprehension has been authorized by an official listed in Mil. R. Evid. 315(d) upon a determination that probable cause to apprehend the person exists; or ordered the arrest or a superior authority, on duty inconsistent with the status of arrest, but this shall not prevent requiring the person arrested to do ordinary cleaning or policing, or to take part in routine training and duties;

(2) if the person to be apprehended is not a resident of the private dwelling, the entry has been authorized by an official listed in Mil. R. Evid. 315(d) upon a determination that probable cause exists to apprehend the person and to believe that the person to be apprehended is or will be present at the time of the entry.

(d) In the case of a private dwelling not included in clause (c) of this subparagraph:

(1) if the person to be apprehended is a resident of the private dwelling, there exists at the time of the entry, reason to believe that the person to be apprehended is present and the apprehension is authorized by an arrest warrant issued by competent civilian authority; or

(2) if the person to be apprehended is not a resident of the private dwelling the apprehension is authorized by an arrest warrant and the entry is authorized by a search warrant, each issued by competent civilian authority.

A person who is not a resident of the private dwelling entered may not challenge the legality of his or her own apprehension on the basis of failure to secure a warrant or authorization to enter that dwelling, or on the basis of the sufficiency of such a warrant or authorization. Nothing in this subparagraph affects the legality of an apprehension which is incident to otherwise lawful presence in a private dwelling.

(c) Preliminary inquiry into reported offenses. Upon receipt of information that a member of the command is accused or suspected of committing an offense or offenses triable by court- martial, the immediate commander shall make or cause to be made a preliminary inquiry into the charges or suspected offenses. The commander should seek the advice of his staff judge advocate before taking any action.

(d) Pretrial restraint.

(1) Types of pretrial restraint. Pretrial restraint is moral or physical restraint on a person's liberty which is imposed before and during disposition of offenses. Pretrial restraint may consist of conditions on liberty, arrest, or confinement. (ML, 130.9[a]).

(i) Conditions on liberty. Conditions on liberty are imposed by orders directing a person to do or refrain from doing specified acts. Such conditions may be imposed in conjunction with other forms of restraint or separately.

(ii) Arrest. Arrest is the restraint of a person by oral or written order not imposed as punishment, directing the person to remain within specified limits; a person in the status of arrest may not be required to perform full military duties such as commanding or supervising personnel, serving as guard, or bearing arms. The status of arrest automatically ends when the person is placed, by the authority who ordered the arrest or a superior authority on duty inconsistent with the status of arrest, but this shall not prevent requiring the person arrested to do ordinary cleaning or policing, or to take part in routine training and duties.

(iii) Confinement. Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of offenses (see N.Y.R.C.M. 305).

(2) Who may order pretrial restraint.

(i) of officers and warrant officers. Only a commanding officer to whose authority the officer or warrant officer is subject may order pretrial restraint of that officer or warrant officer (ML, 130.9[c]).

(ii) Of enlisted persons. Any officer may order pretrial restraint of any enlisted person.

(iii) Delegation of authority. The authority to order pretrial restraint of officers and warrant officers may not be delegated. A commanding officer may delegate to warrant, petty, and noncommissioned officers authority to order pretrial restraint of enlisted persons of the commanding officer's command or subject to the authority of that commanding officer.

(iv) Authority to withhold. A superior competent authority may withhold from a subordinate the authority to order pretrial restraint. An order withholding such authority shall be in writing.

(3) When a person may be restrained. No person may be ordered into restraint before trial except for probable cause. Probable cause to order pretrial restraint exists when there is a reasonable belief that:

(i) an offense triable by court-martial has been committed;

(ii) the person to be restrained committed it; and

(iii) the restraint ordered is required by the circumstances.

(4) Procedures for ordering pretrial restraint. Pretrial restraint other than confinement is imposed by notifying the person orally or in writing of the restraint, including its terms or limits. The order to an enlisted person must be delivered personally by the authority who issues it or through other persons subject to the code (ML, 13.9[b]). The order to an officer must be delivered personally by the authority who issues it or by another commissioned officer (ML, 130.9[c]). Pretrial confinement is imposed pursuant to orders by a competent authority by the delivery of a person to a place of confinement.

(5) Notice of basis for restraint. When a person is placed under restraint, the person shall be informed of the nature of the offense which is the basis for such restraint (ML, 130.10).

(6) Punishment prohibited. Pretrial restraint is not punishment and must not be used as such. No person who is restrained pending trial may be subjected to punishment or penalty for the offense which is the basis for that restraint. Prisoners being held for trial must not be required to undergo punitive duty hours or training, perform punitive labor, or wear special uniforms prescribed only for post-trial prisoners. This subdivision does not prohibit minor punishment during pretrial confinement for infractions of the rules of the place of confinement. (ML, 130.13). Prisoners must be afforded facilities and treatment under regulations of the Department of Corrections of the State of New York.

(7) Release. Except as otherwise provided in N.Y.R.C.M. 305, a person may be released from pretrial restraint by a person authorized to impose it. Pretrial restraint terminates when a sentence is adjudged, the accused is acquitted of all charges, or all charges are dismissed.

(8) Administrative restraint. Nothing in this subdivision prohibits limitations on a service member imposed for operational or other military purposes independent of military justice, including administrative hold or medical reasons.

(e) Pretrial confinement.

(1) In general. Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of charges. It is executed only at a guard house or at a jail, penitentiary, or prison designated by the Governor or Commissioner of the Department of Corrections, State of New York for that purpose (ML, 130.11).

(2) Who may be confined. Any person who is subject to the code may be confined if the requirements of this subdivision are met.

(3) Who may order confinement. (See N.Y.R.C.M. 304 [b].) No provost marshal, commander of a guard, master-at-arms or warden, keeper or officer of a city or county jail or of any other jail, penitentiary, or prison designated by the Governor or Commissioner of the Department of Corrections may refuse to his charge by a commissioned officer of the Armed Forces, when the committing officer furnishes a statement, signed by him, of the offense charged against the prisoner (ML, 130.12[a]).

(4) When a person may be confined. No person may be ordered into pretrial confinement except for probable cause (ML, 130.9[d]). Probable cause to order pretrial confinement exists when there is a reasonable belief that:

(i) an offense triable by court-martial has been committed;

(ii) the person confined committed it; and

(iii) confinement is required by the circumstances.

(5) Advice to the accused upon confinement. Each person must be promptly informed of:

(i) the nature of the offenses for which held;

(ii) the to remain silent and that any statement made by the person may be used against the person;

(iii) the right to retain counsel at no expense to the State, and the right to request assignment of military counsel; and

(iv) the procedures by which pretrial confinement will be reviewed.

(6) Military counsel. If requested by the prisoner, military counsel must be provided to the prisoner before the initial review under paragraph (9) of this subdivision. Counsel may be assigned for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred. If assignment is made for this limited purpose, the prisoner must be so informed. Unless otherwise provided by regulations of the Chief of Staff to the Governor, a prisoner does not have a right under this subdivision to have military counsel of the prisoner's own selection.

(7) Who may direct release from confinement. Any commander of a prisoner, an officer appointed by the Chief of Staff to the Governor to conduct the review under paragraph (9) of this subdivision, or, once charges have been referred, a military judge detailed to the court- martial to which the charges against the accused have been referred may direct release from pretrial confinement. For purposes of this subdivision, any commander includes the immediate or higher commander of the prisoner and the commander of the installation on which the confinement facility is located.

(8) Notification and action by commander.

(i) Report. Unless the commander of the prisoner ordered to pretrial confinement, the commissioned, warrant, non-commissioned, or petty officer, or the commander of a guard, master-at-arms, warden, keeper or officer of a city or county jail or of any other jail, penitentiary or prison designated by the Governor or Commissioner of the Department of Corrections to whose charge the prisoner was committed must, within 24 hours after that commitment, cause to be made a report to the commander which must contain the name of the prisoner, the offenses charged against the prisoner, and the name of the person who ordered or authorized confinement (see ML, 130.12[b]).

(ii) Action by commander.

(a) Decision. Not later than 72 hours after ordering a prisoner into pretrial confinement, or after receipt of a report that a member of the commander's unit or organization has been confined, the commander must decide whether pretrial confinement will continue.

(b) Requirements for confinement. The commander must direct the prisoner's release from pretrial confinement unless the commander believes upon probable cause, that is, upon reasonable grounds, that:

(1) an offense triable by a court-martial has been committed;

(2) the prisoner committed it; and

(3) confinement is necessary because it is foreseeable that:

(i) the prisoner will not appear at a trial, pretrial hearing, or investigation; or

(ii) the prisoner will engage in serious criminal misconduct; and

(iii) less severe forms of restraint are inadequate.

Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, seriously injuring others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States. As used in this subdivision, national security means the national defense foreign relations of the United States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert.

(c) Memorandum. If continued pretrial confinement is approved, the commander must prepare a written memorandum which states the reasons for the conclusion that the requirements for confinement in clause (b) of this subparagraph have been met. This memorandum may include hearsay and may incorporate by reference other documents such as witness statements, investigative reports, or official records. This memorandum must be forwarded to the reviewing officer under paragraph (9) of this subdivision. If such a memorandum was prepared by the commander before ordering confinement, a second memorandum need not be prepared. However, additional information may be added to the memorandum at any time.

(9) Procedures for review of pretrial confinement.

(i) In general. A review of the adequacy of probable cause to believe the prisoner has committed an offense and of the necessity for continued pretrial confinement must be made within seven days of the imposition of confinement.

(ii) By whom made. The review under this paragraph must be made by a neutral and detached officer appointed by the senior commander of the unit to which the prisoner was assigned at the time of the alleged commission of the offense.

(iii) Nature of review.

(a) Matters considered. The review under this paragraph must include a review of the memorandum submitted by the prisoner's commander under clause (8)(ii)(c) of this subdivision. Additional written matters may be considered, including any submitted by the accused. The prisoner, and the prisoner's counsel, if any, must be allowed to appear before the reviewing officer and make a statement, if practicable. A representative of the command may appear before the reviewing officer to make a statement.

(b) Rules of evidence. Except for Mil. R. Evid., section V (Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of Evidence do not apply to the matters considered.

(c) Standard of proof. The requirements for confinement under clause (8)(ii)(b) of this subdivision must be proved by a preponderance of the evidence.

(iv) Extension of time limit. The reviewing officer may, for good cause, extend the time limit for completion of the initial review to 10 days after the imposition of pretrial confinement.

(v) Action by reviewing officer. Upon completion of review, the reviewing officer must approve continued confinement or order immediate release.

(vi) Memorandum. The reviewing officer's conclusions, including the factual findings on which they are based, must be set forth in a written memorandum. A copy of the memorandum and of all documents considered must be maintained and provided to the accused or the government on request.

(vii) Reconsideration of approval of continued confinement. The reviewing officer must, after notice to the parties, reconsider the decision to confine the prisoner upon request based upon any significant information not previously considered.

(10) Review by military judge. Once the charges for which the accused has been confined are referred to trial, the military judge must review the propriety of pretrial confinement upon motion for appropriate relief.

(i) Release. The military judge must order release from pretrial confinement only if:

(a) the reviewing officer's decision was an abuse of discretion and there is not sufficient information presented to the military judge justifying continuation of pretrial confinement under clause (8)(ii)(b) of this subdivision;

(b) information not presented to the reviewing officer establishes that the prisoner should be released under clause (8)(ii)(b) of this subdivision; or

(c) the provisions of subparagraphs (9)(ii) or (iii) of this subdivision have not been compiled with and information presented to the military judge does not establish sufficient grounds for continued confinement under clause (8)(ii)(b) of this subdivision.

(ii) Credit. The military judge must order administrative credit under paragraph (11) of this subdivision for any pretrial confinement served as a result of an abuse of discretion or of failure to comply with the provisions of paragraphs (6), (8), or (9) of this subdivision.

(11) Remedy. The remedy for noncompliance with paragraphs (6), (8), (9), or (10) of this subdivision is an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance. Such credit is computed at the rate of one day credit for each day of confinement served as a result of such noncompliance. This credit is to be applied in addition to any other credit the accused may be entitled as a result of pretrial confinement served. This credit is to be applied first against any confinement adjudged. If no confinement is adjudged, or if the confinement adjudged is insufficient to offset all the credit to which the accused is entitled, the credit is to be applied against fine and forfeiture of pay, in that order, if adjudged. For purposes of this paragraph, one day of confinement is equal to one day of total forfeiture or a like amount of fine. The credit cannot be applied against any other form of punishment.

(12) Confinement after release. No person whose release from pretrial confinement has been directed by a person authorized in paragraph (7) of this subdivision may be confined again before completion of trial except upon the discovery, after the order of release, of evidence of misconduct which, either alone or in conjunction with all other available evidence, justifies confinement.

(13) Exceptions.

(i) Operational necessity. The Chief of Staff to the Governor may suspend application of subparagraphs (5)(ii) and (iii), paragraph (6), clauses (8)(ii)(a) and (c), and paragraph (9) of this subdivision to specific units or in specified areas when operational requirements of such units or in such areas would make application of such provisions impracticable.

(ii) At sea. Subparagraphs (5)(ii) and (iii), paragraph (6), clause (8)(ii)(c), and paragraph (9) of this subdivision does not apply in the case of a person on board a vessel at sea. In such situations, confinement on board the vessel at sea may continue only until the person can be transferred to a confinement facility ashore. Such transfer must be accomplished at the earliest opportunity permitted by the operational requirements and mission of the vessel. Upon such transfer the memorandum required by clause (8)(ii)(c) of this subdivision must be transmitted to the reviewing officer under paragraph (9) of this subdivision and must include an explanation of any delay in the transfer.

(f) Initial disposition.

(1) Who may dispose of offenses. Each commander has discretion to dispose of offenses by members of that command. Ordinarily the immediate commander of a person accused or suspected of committing an offense triable by court-martial initially determines how to dispose of that offense. A superior commander may withhold the authority to dispose of offenses in individual cases, types of cases, or generally. A superior commander may not limit the discretion of subordinate commander to act on cases over which authority has not been withheld.

(2) Policy. Allegations of offenses should be disposed of in a timely manner at the lowest appropriate level of disposition listed in paragraph (3) of this subdivision.

(3) How offenses may be disposed of. Within the limits of the commander's authority, a commander may take the actions set forth in this paragraph to initially dispose of a charge or suspected offense.

(i) No action. A commander may decide to take no action on an offense. If charges have been preferred, they may be dismissed.

(ii) Administrative action. A commander may take or initiate administrative action, in addition to or instead of other action taken under this subdivision. Administrative actions include corrective measures such as counseling, admonition, reprimand, exhortation, disap-proval, criticism, censure, reproach, rebuke, extra military instruction, or the administrative withholding of privileges, or any combination of the above.

(iii) Nonjudicial punishment. A commander may consider the matter pursuant to ML 130.15, nonjudicial punishment. See Part 519 of this Title.

(iv) Disposition of charges. Charges may be disposed of in accordance with N.Y.R.C.M. 401.

(v) Forwarding for disposition. A commander may forward a matter concerning an offense, or charges, to a superior or subordinate authority for disposition.

(4) National security matters. If a commander not authorized to convene general courts- martial finds that an offense warrants trial by court-martial, but believes that trial would be detrimental to the prosecution of a war or harmful to national security, the matter shall be forwarded to the general court- martial convening authority for action under N.Y.R.C.M. 407(b).

(g) Preferral of charges.

(1) Who may prefer charges. Any person subject to the code may prefer charges (ML, 130.30[a]).

(2) How charges are preferred; oath. A person who prefers charges must:

(i) sign the charges and specifications under oath before a person described in ML, 131.2, authorized to administer oaths; and

(ii) state that the signer has personal knowledge of or has investigated the matters set forth in the charges and specifications and that they are true in fact to the best of that person's knowledge and belief (ML, 130.30[a]).

(3) How to allege offenses.

(i) In general. The format of charge and specification is used to allege violations of the code.

(ii) Charge. A charge states the article of the code, which the accused is alleged to have violated.

(iii) Specification. A specification is a plain, concise, and definite statement of the essential fact constituting the offense charged. A specification is sufficient if it alleges every element of the charged offense expressly or by necessary implication. No particular format is required.

(iv) Multiple offenses. Charges and specifications alleging all known offenses by an accused may be preferred at the same time. Each specification shall state only one offense.

(v) Multiple offenders. A specification may name more than one person as an accused if each person so named is believed by the accuser to be a principal in the offense which is the subject of the specification.

(4) Harmless error in citation. Error in or omission of the designation of the article of the code or other regulation violated is not a ground for dismissal of a charge or reversal of a conviction if the error or omission did not prejudicially mislead the accused.

(h) Notification to accused of charges.

(1) Immediate commander. The immediate commander of the accused must cause the accused to be informed of the charges preferred against the accused, and the name of the person who preferred the charges and of any person who ordered the charges to be preferred, if known, as soon as practicable (ML, 130.30[b]).

(2) Commanders at higher echelons. When the accused has not been informed of the charges, commanders at higher echelons to whom the preferred charges are forwarded shall cause the accused to be informed of the matters required under paragraph (1) of this subdivision as soon as practicable.

(3) Remedy. The sole remedy for violation of this subdivision is a continuance or recess of sufficient length to permit the accused to adequately prepare a defense, and no relief may be granted upon a failure to comply with this subdivision unless the accused demonstrates that the accused has been hindered in the preparation of a defense.

N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.3