New York Codes, Rules and Regulations
Title 9 - EXECUTIVE DEPARTMENT
Subtitle H - DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES
Chapter I - ADMINISTRATION OF PROBATION
Part 354 - Intake
Section 354.5 - Preliminary probation procedures at intake
Universal Citation: 9 NY Comp Codes Rules and Regs ยง 354.5
Current through Register Vol. 46, No. 12, March 20, 2024
(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.
Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.