S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3136
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 23, 2013
                                      ___________
       Introduced  by M. of A. CORWIN, CERETTO -- read once and referred to the
         Committee on Children and Families
       AN ACT to amend the executive law, the family court  act,  the  criminal
         procedure  law and the judiciary law, in relation to enacting "Renee's
         law"
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Short  title. This act shall be known and may be cited as
    2  "Renee's law".
    3    S 2. Legislative findings  and  declaration.  The  legislature  hereby
    4  finds  and  declares  that  it  is a fundamental purpose of this state's
    5  juvenile justice system to provide a safe environment for both the resi-
    6  dents and the staff of programs licensed, certified  and  registered  by
    7  the  office  of  children  and  family services. The legislature further
    8  finds that a safe environment is ensured by providing staff of  programs
    9  licensed, certified and registered by such office with adequate training
   10  and  that  this function is a primary responsibility of the commissioner
   11  of children and family services to ensure. Ensuring the  safety  of  the
   12  communities into which the youth are placed is paramount, requiring that
   13  a youth be placed in appropriate locations to avoid preventable tragedy.
   14  The  legislature finds that residents of programs and agencies licensed,
   15  certified and registered by the office of children and  family  services
   16  are  committing  serious  crimes  within  such  programs, and that these
   17  crimes are not being reported to the proper authorities. The  provisions
   18  of  this act provide a critical framework to improve and maintain safety
   19  within such licensed,  certified  and  registered  programs,  non-profit
   20  community  based  programs and communities throughout the state allowing
   21  youths under the office of children and  family  services'  jurisdiction
   22  the  ability to be rehabilitated and receive skills necessary to inhibit
   23  recidivism.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07087-02-3
       A. 3136                             2
    1    S 3. Section 501 of the executive law is amended  by  adding  two  new
    2  subdivisions 7-a and 12-a to read as follows:
    3    7-A.  TO  PROVIDE  FOR  THE DISSEMINATION OF RECORDS, FILES AND PAPERS
    4  PURSUANT TO SUBDIVISION THREE OF SECTION  FIVE  HUNDRED  ONE-C  OF  THIS
    5  TITLE, PARAGRAPH ONE OF SUBDIVISION (B) OF SECTION ONE HUNDRED SIXTY-SIX
    6  OF  THE  FAMILY  COURT ACT, PARAGRAPH (A) OF SUBDIVISION FIVE OF SECTION
    7  720.35 OF THE CRIMINAL PROCEDURE LAW AND PARAGRAPH  (A)  OF  SUBDIVISION
    8  TWO OF SECTION 725.15 OF THE CRIMINAL PROCEDURE LAW.
    9    12-A.  TO  ESTABLISH AND PROVIDE FOR THE IMPLEMENTATION OF A COURSE OF
   10  TRAINING TO BE COMPLETED BY ALL STAFF MEMBERS AND EMPLOYEES  RESPONSIBLE
   11  FOR  THE CARE, CUSTODY, TREATMENT, HOUSING, EDUCATION, REHABILITATION OR
   12  GUIDANCE OF CHILDREN IN FACILITIES  IN  WHICH  CHILDREN  ARE  PLACED  OR
   13  COMMITTED BY THE OFFICE OF CHILDREN AND FAMILY SERVICES. THE COMMISSION-
   14  ER  OF  SUCH  OFFICE SHALL ESTABLISH PROGRAMS FOR PREEMPLOYMENT TRAINING
   15  AND IN SERVICE STAFF DEVELOPMENT AND TRAINING. ALL SUCH  TRAINING  SHALL
   16  INCLUDE INSTRUCTION IN CHILD ABUSE AND MALTREATMENT PREVENTION AND IDEN-
   17  TIFICATION;  STAFF ABUSE PREVENTION AND IDENTIFICATION; SAFETY AND SECU-
   18  RITY PROCEDURES; THE PRINCIPLES OF CHILD DEVELOPMENT; THE USE  OF  PHYS-
   19  ICAL  INTERVENTION; TECHNIQUES OF GROUP AND INDIVIDUAL CHILD MANAGEMENT;
   20  GANG AWARENESS; ABSENT WITHOUT LEAVE  PROCEDURES;  CONFLICT  RESOLUTION;
   21  AND THE LAWS, RULES AND REGULATIONS GOVERNING THE PROTECTION OF CHILDREN
   22  FROM  ABUSE  AND  MALTREATMENT.  SUCH COMMISSIONER SHALL ENSURE THAT ALL
   23  TRAINING CONDUCTED PURSUANT TO THIS SUBDIVISION IS EVIDENCE  BASED,  AND
   24  EVALUATED  AND  UPDATED  ON AN ANNUAL BASIS.  THE FAILURE TO PROVIDE THE
   25  TRAINING REQUIRED BY THIS SUBDIVISION SHALL CONSTITUTE NEGLECT  OF  DUTY
   26  FOR WHICH THE GOVERNOR MAY REMOVE THE COMMISSIONER OF CHILDREN AND FAMI-
   27  LY SERVICES FROM OFFICE.
   28    S  4.  Section  501-c  of the executive law is amended by adding a new
   29  subdivision 3 to read as follows:
   30    3. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS  SECTION,
   31  THE  RECORDS  AND  FILES INCLUDING, BUT NOT LIMITED TO, UNUSUAL INCIDENT
   32  REPORTS,  MENTAL  HEALTH  AND  DEVELOPMENTAL  DISABILITY  REPORTS,   AND
   33  PROGRESS  REPORTS,  OF  EACH  JUVENILE  DELINQUENT, JUVENILE OFFENDER OR
   34  YOUTHFUL OFFENDER PLACED WITH OR COMMITTED TO THE CUSTODY OF THE  OFFICE
   35  OF CHILDREN AND FAMILY SERVICES SHALL BE MADE AVAILABLE:
   36    (A)  TO THE STAFF MEMBERS AND EMPLOYEES OF THE FACILITY, WHETHER OPER-
   37  ATED BY SUCH OFFICE OR NOT, IN  WHICH  THE  DELINQUENT  OR  OFFENDER  IS
   38  PLACED  OR  COMMITTED,  WHEN THE STAFF MEMBER OR EMPLOYEE IS RESPONSIBLE
   39  FOR THE CARE, CUSTODY, TREATMENT, HOUSING, EDUCATION, REHABILITATION  OR
   40  GUIDANCE OF THE AFFECTED YOUTH;
   41    (B)  IN  THE  EVENT  SUCH DELINQUENT OR OFFENDER ENGAGES IN CONDUCT OR
   42  COMMITS AN ACT WHICH WOULD CONSTITUTE A CRIME DEFINED IN THE  PENAL  LAW
   43  IF  THE  YOUTH WAS AN ADULT OR COMMITS A CRIME DEFINED IN THE PENAL LAW,
   44  TO THE COURT, THE PRESENTMENT  AGENCY  OR  DISTRICT  ATTORNEY,  AND  THE
   45  ATTORNEY  REPRESENTING  THE YOUTH UPON THE FILING OF CHARGES AGAINST THE
   46  YOUTH RELATING TO SUCH CRIME; AND
   47    (C) TO ANY FOSTER PARENTS HAVING CUSTODY OF SUCH DELINQUENT OR  OFFEN-
   48  DER  AFTER RELEASE FROM THE CUSTODY OF THE OFFICE OF CHILDREN AND FAMILY
   49  SERVICES, EXCLUDING MENTAL HEALTH AND DEVELOPMENTAL DISABILITY REPORTS.
   50    S 5. The executive law is amended by adding a  new  section  501-i  to
   51  read as follows:
   52    S  501-I. CUSTODY, CONTROL AND DISCHARGE OF DETAINED YOUTH. 1.  PLACE-
   53  MENT. THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL PLACE EACH  YOUTH
   54  COMMITTED  TO ITS CUSTODY UPON THE BASIS OF SUCH YOUTH'S RISK ASSESSMENT
   55  VALUE AS SET FORTH IN SUBDIVISION THREE OF THIS SECTION.  PROVIDED, THAT
   56  NO YOUTH CONVICTED OF OR ADJUDICATED AS HAVING  COMMITTED  A  DESIGNATED
       A. 3136                             3
    1  FELONY,  OR  FOUND TO HAVE COMMITTED TWO OR MORE LEVEL C RULE VIOLATIONS
    2  WHILE IN CUSTODY, OR FOUND TO HAVE COMMITTED FOUR OR MORE LEVEL  B  RULE
    3  VIOLATIONS  WITHIN  THE  PREVIOUS THREE MONTHS SHALL BE AUTHORIZED TO BE
    4  PLACED  IN  ANY  PROGRAM  OR FACILITY THAT IS NOT DESIGNATED AS A SECURE
    5  FACILITY. FURTHERMORE, NO YOUTH HAVING A RISK  LEVEL  OF  III  SHALL  BE
    6  PLACED IN ANY PROGRAM LICENSED, REGISTERED OR CERTIFIED BY THE OFFICE OF
    7  CHILDREN AND FAMILY SERVICES WHICH IS NOT A SECURE FACILITY.
    8    2.  MOVEMENT  TO  LOWER LEVEL OF CUSTODY. PRIOR TO THE MOVEMENT OF ANY
    9  YOUTH TO A LOWER LEVEL OF CUSTODY, A RISK ASSESSMENT SHALL BE  CONDUCTED
   10  FOR  SUCH YOUTH. SUCH ASSESSMENT SHALL BE COMPLETED BY THE STAFF CHARGED
   11  WITH THE DAILY CARE AND CUSTODY OF THE YOUTH. UPON COMPLETION OF A  RISK
   12  ASSESSMENT  OF  A YOUTH, THE FACILITY OR PROGRAM WHICH WILL RECEIVE SUCH
   13  YOUTH SHALL VERIFY WHETHER IT MEETS THE STAFFING REQUIREMENTS OF  SUBDI-
   14  VISION SIX OF THIS SECTION.
   15    3.  RISK ASSESSMENT. THE COMMISSIONER OF CHILDREN AND FAMILY SERVICES,
   16  OR HIS OR HER DESIGNEE, SHALL ESTABLISH A RISK ASSESSMENT VALUE FOR EACH
   17  YOUTH COMMITTED TO THE CUSTODY OF THE  OFFICE  OF  CHILDREN  AND  FAMILY
   18  SERVICES.  THE  RISK  ASSESSMENT VALUE OF EACH YOUTH SHALL BE DERIVED BY
   19  ADDING THE YOUTH'S FACTORS FOR FACILITY RULE VIOLATIONS TO  HIS  OR  HER
   20  PRIOR  OFFENSE  HISTORY, AND SUBTRACTING THEREFROM HIS OR HER MITIGATING
   21  FACTORS.
   22    (A) FACILITY RULE FACTORS SHALL BE DETERMINED BY:
   23    (I) THE NUMBER OF LEVEL B RULE VIOLATIONS MULTIPLIED BY TWO; AND
   24    (II) THE NUMBER OF LEVEL C RULE VIOLATIONS MULTIPLIED BY THREE.
   25    (B) PRIOR OFFENSE HISTORY FACTOR SHALL BE DETERMINED BY:
   26    (I) THE NUMBER OF OPEN OR PRIOR  JUVENILE  DELINQUENCY  DETERMINATIONS
   27  WITHIN  THE  PREVIOUS  THREE  YEARS:  ONE  POINT PER OFFENSE, BUT NOT TO
   28  EXCEED THREE POINTS;
   29    (II) THE NUMBER OF OFFENSES PENDING PROSECUTION BY THE  COUNTY  ATTOR-
   30  NEY:  ONE POINT PER OFFENSE, BUT NOT TO EXCEED THREE POINTS;
   31    (III) A PENDING FAMILY COURT FELONY OFFENSE: FOUR POINTS;
   32    (IV)  A  PENDING  FAMILY  COURT  MISDEMEANOR  OFFENSE:  ONE  POINT PER
   33  OFFENSE, BUT NOT TO EXCEED THREE POINTS;
   34    (V) A PAST FELONY ADJUDICATION WITHIN THE PREVIOUS THREE  YEARS:  FIVE
   35  POINTS;
   36    (VI)  TWO  OR MORE MISDEMEANOR ADJUDICATIONS WITHIN THE PREVIOUS THREE
   37  YEARS: THREE POINTS; AND
   38    (VII) ONE MISDEMEANOR ADJUDICATION WITHIN THE  PREVIOUS  THREE  YEARS:
   39  ONE POINT.
   40    (C) MITIGATING FACTOR SHALL BE DETERMINED BY:
   41    (I) THE LACK OF PRIOR ARRESTS OR ADJUDICATIONS: ONE POINT;
   42    (II)  NOT  BEING SUBJECT TO A PERSON IN NEED OF SUPERVISION PROCEEDING
   43  WITHIN THE PREVIOUS THREE YEARS: ONE POINT;
   44    (III)  CURRENTLY  ACTIVELY  COOPERATING  IN  COUNSELING,   PREVENTION,
   45  SERVICES OR A PROGRAM: ONE POINT.
   46    4.  DEFINITIONS. AS USED IN THIS ARTICLE:
   47    (A)  "DESIGNATED  FELONY"  SHALL MEAN AND INCLUDE ANY OF THE FOLLOWING
   48  FELONIES DEFINED IN THE PENAL LAW: MURDER IN THE FIRST DEGREE, MURDER IN
   49  THE SECOND DEGREE, MANSLAUGHTER IN THE FIRST DEGREE, MANSLAUGHTER IN THE
   50  SECOND DEGREE, KIDNAPPING IN  THE  FIRST  DEGREE,  ARSON  IN  THE  FIRST
   51  DEGREE,  ASSAULT  IN THE FIRST DEGREE, GANG ASSAULT IN THE FIRST DEGREE,
   52  ARSON IN THE SECOND DEGREE, ROBBERY IN THE FIRST DEGREE, GANG ASSAULT IN
   53  THE SECOND DEGREE, AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE, RAPE  IN
   54  THE  FIRST  DEGREE, CRIMINAL SEXUAL ACT IN THE FIRST DEGREE, BURGLARY IN
   55  THE FIRST DEGREE.
       A. 3136                             4
    1    (B) "DESIGNATED RISK LEVEL" SHALL MEAN AN  ASSESSMENT  OF  EACH  YOUTH
    2  COMMITTED  TO THE CUSTODY OF THE OFFICE OF CHILDREN AND FAMILY SERVICES,
    3  IN WHICH, IN LIGHT OF ALL AVAILABLE RECORDS, THE  NUMBER  AND  TYPES  OF
    4  OFFENSES  AND  RULE VIOLATIONS COMMITTED BY SUCH YOUTH WHILE IN THE CARE
    5  AND  CUSTODY  OF  THE  OFFICE OF CHILDREN AND FAMILY SERVICES AND IN ANY
    6  PROGRAM LICENSED, REGISTERED OR CERTIFIED BY SUCH OFFICE,  AND  PREVIOUS
    7  CRIMINAL  AND  JUVENILE DELINQUENCY DETERMINATIONS, SUCH YOUTH IS DETER-
    8  MINED TO PRESENT A LOW, MODERATE OR  HIGH  RISK  OF  COMMITTING  ANOTHER
    9  CRIME DEFINED IN THE PENAL LAW OR WHICH WOULD CONSTITUTE SUCH A CRIME IF
   10  COMMITTED  BY  AN  ADULT,  OR POSES A THREAT TO THE SAFETY OF HIMSELF OR
   11  HERSELF OR OTHERS.
   12    (I) "RISK LEVEL I" MEANS A YOUTH  HAS  A  LOW  RISK  OF  REPEATING  OR
   13  COMMITTING ADDITIONAL OFFENSES OR RULE VIOLATIONS, OR POSES NO DANGER TO
   14  PUBLIC SAFETY. A YOUTH DETERMINED TO HAVE A RISK LEVEL OF I SHALL HAVE A
   15  RISK FACTOR OF THREE POINTS OR LESS.
   16    (II) "RISK LEVEL II" MEANS A YOUTH HAS A MODERATE RISK OF REPEATING OR
   17  COMMITTING  ADDITIONAL  OFFENSES OR RULE VIOLATIONS, OR POSES A MODERATE
   18  THREAT TO PUBLIC SAFETY. A YOUTH DETERMINED TO HAVE A RISK LEVEL  OF  II
   19  SHALL HAVE A RISK FACTOR OF BETWEEN FOUR AND EIGHT POINTS.
   20    (III)  "RISK  LEVEL III" MEANS A YOUTH HAS A HIGH RISK OF REPEATING OR
   21  COMMITTING ADDITIONAL OFFENSES OR RULE VIOLATIONS, OR  POSES  A  SERIOUS
   22  THREAT  TO  PUBLIC  SAFETY. A YOUTH DETERMINED TO BE A RISK LEVEL OF III
   23  SHALL HAVE A RISK FACTOR OF NINE OR MORE POINTS.
   24    (C) "EGREGIOUS ACT" SHALL MEAN AN ACT WHICH  IS  CONSPICUOUSLY  OFFEN-
   25  SIVE, INTENTIONAL OR BLATANT.
   26    (D) "PERSISTENT PATTERN" SHALL MEAN A COURSE OF CONDUCT THAT IS INTEN-
   27  TIONALLY REPETITIVE.
   28    5.  RULE VIOLATIONS. (A) A YOUTH IS GUILTY OF A LEVEL B VIOLATION WHEN
   29  HE OR SHE:
   30    (I) ATTEMPTS TO, CONSPIRES TO OR ACTS AS AN  ACCESSORY  TO  AN  ESCAPE
   31  ATTEMPT FROM ANY FACILITY, PROGRAM OR CUSTODY;
   32    (II)  WITHHOLDS INFORMATION ABOUT AN ATTEMPTED ESCAPE OR ABSENCE WITH-
   33  OUT LEAVE;
   34    (III) ENGAGES IN ANY VIOLENT CONDUCT INVOLVING THE THREAT OF VIOLENCE;
   35    (IV) PRACTICES OR INSTRUCTS OTHERS IN MARTIAL ARTS, SPARRING  OR  SELF
   36  DEFENSE TECHNIQUES;
   37    (V) ENGAGES IN GANG-RELATED HAND, VERBAL OR WRITTEN COMMUNICATION;
   38    (VI) INTENTIONALLY EXPOSES THE PRIVATE PARTS OF THEIR BODIES;
   39    (VII)  MAKES  ANY  THREAT  VERBALLY,  IN  WRITING OR BY GESTURE TO ANY
   40  PERSON;
   41    (VIII) POSSESSES UNAUTHORIZED SECURITY-RELATED EQUIPMENT SUCH AS KEYS,
   42  VEHICULAR KEYS, COMMUNICATION DEVICES OR RESTRAINT EQUIPMENT;
   43    (IX) MAKES, USES, POSSESSES, SELLS  OR  EXCHANGES,  OR  IS  UNDER  THE
   44  INFLUENCE OF ANY ALCOHOLIC BEVERAGE OR INTOXICANT;
   45    (X) MAKES, USES, POSSESSES, SELLS OR EXCHANGES, OR IS UNDER THE INFLU-
   46  ENCE OF ANY NARCOTIC, NARCOTIC PARAPHERNALIA OR CONTROLLED SUBSTANCE;
   47    (XI) POSSESSES OUTDATED OR UNAUTHORIZED TYPES OR QUANTITIES OF MEDICA-
   48  TION;
   49    (XII)  SELLS  OUTDATED  OR UNAUTHORIZED TYPES OR QUANTITIES OF MEDICA-
   50  TION;
   51    (XIII) ATTEMPTS TO SMUGGLE OR ATTEMPTS TO SOLICIT  OTHERS  TO  SMUGGLE
   52  ANY  ITEM  INTO  OR OUT OF A FACILITY OR PROGRAM OR FROM ONE FACILITY OR
   53  PROGRAM AREA TO ANOTHER;
   54    (XIV) ENGAGES IN ANY VERBAL BEHAVIOR WHICH INTERFERES WITH THE  SECURE
   55  AND ORDERLY OPERATION OF THE FACILITY;
       A. 3136                             5
    1    (XV)  ENGAGES  IN  ANY  VERBAL  BEHAVIOR WHICH MAY RESULT IN INJURY TO
    2  STAFF OR RESIDENTS;
    3    (XVI)  ENGAGES IN ANY PHYSICAL, PERSISTENT OR EGREGIOUS BEHAVIOR WHICH
    4  INTERFERES WITH THE SECURE AND ORDERLY OPERATION OF THE FACILITY;
    5    (XVII) ENGAGES IN ANY PHYSICAL, PERSISTENT OR EGREGIOUS BEHAVIOR WHICH
    6  MAY RESULT IN INJURY TO STAFF OR RESIDENTS;
    7    (XVIII) SPITS, URINATES OR DEFECATES ON THE FLOOR OR ANY OTHER AREA;
    8    (XIX) THROWS URINE OR FECES OR SANITARY ITEMS;
    9    (XX) FAILS TO COMPLY OR OTHERWISE DISRUPTS FACILITY AND PROGRAM  COUNT
   10  PROCEDURES;
   11    (XXI)  MUTILATES OR DEFACES HIS OR HER BODY, OR ENGAGES IN THE MUTILA-
   12  TION OR DEFACEMENT OF ANOTHER PERSON'S BODY; OR
   13    (XXII) ENGAGES IN A PERSISTENT PATTERN OF  INFRACTIONS  AND  FAILS  TO
   14  RESPOND  TO  SANCTIONS  PREVIOUSLY IMPOSED BY AN INDIVIDUAL CHARGED WITH
   15  SUCH YOUTH'S CARE OR CUSTODY.
   16    (B) A YOUTH IS GUILTY OF A LEVEL C VIOLATION WHEN HE OR SHE:
   17    (I) COMMITS OR ATTEMPTS TO COMMIT ANY OFFENSE  DEFINED  IN  THE  PENAL
   18  LAW;
   19    (II) STARTS OR ATTEMPTS TO START A FIRE, WITHOUT AUTHORIZATION;
   20    (III) CAUSES OR ATTEMPTS TO CAUSE AN EXPLOSION;
   21    (IV)  POSSESSES  AN EXPLOSIVE DEVICE OR MATERIALS WHICH CAN BE USED TO
   22  MAKE AN EXPLOSIVE DEVICE;
   23    (V) INFLICTS OR ATTEMPTS TO INFLICT BODILY HARM UPON ANOTHER RESIDENT,
   24  A STAFF MEMBER OR ANY OTHER PERSON;
   25    (VI) ENGAGES IN FIGHTING;
   26    (VII) CONSPIRES OR TAKES ANY ACTION WHICH IS INTENDED TO OR RESULTS IN
   27  THE TAKEOVER OF ANY AREA OF A FACILITY  OR  PROGRAM,  OR,  ACTING  IN  A
   28  GROUP, ENGAGES IN ANY VIOLENT CONDUCT OR CONDUCT INVOLVING THE THREAT OF
   29  VIOLENCE;
   30    (VIII)  ENGAGES  WITH  OTHERS  IN  ANY  VIOLENT  CONDUCT  OR THREAT OF
   31  VIOLENCE;
   32    (IX) LEADS, ORGANIZES OR  URGES  OTHER  RESIDENTS  TO  PARTICIPATE  IN
   33  ACTIONS DETRIMENTAL TO THE ORDER OF A FACILITY OR PROGRAM;
   34    (X)  ENGAGES  IN OR ENCOURAGES OTHERS TO ENGAGE IN UNAUTHORIZED ORGAN-
   35  IZATIONAL ACTIVITIES OR MEETINGS;
   36    (XI) DISPLAYS, WEARS,  POSSESSES,  DISTRIBUTES  OR  USES  UNAUTHORIZED
   37  ORGANIZATIONAL INSIGNIA OR MATERIALS;
   38    (XII)  MAKES,  POSSESSES, SELLS, EXCHANGES OR USES ANY GUN, FIREARM OR
   39  AMMUNITION, KNIFE, RAZOR, SHARPENED INSTRUMENT, TOOL OR OTHER ITEM CLAS-
   40  SIFIED AS A WEAPON BY USE OR APPEARANCE;
   41    (XIII) CONSPIRES TO, IS AN ACCESSORY TO OR  COMMITS  ESCAPE  FROM  ANY
   42  PROGRAM  OR CUSTODY, OR WITHHOLDS INFORMATION ABOUT AN ESCAPE OR ABSENCE
   43  WITHOUT LEAVE;
   44    (XIV) INTENTIONALLY FAILS OR ATTEMPTS TO FAIL TO RETURN AT  OR  BEFORE
   45  THE TIME PRESCRIBED FOR HIS OR HER RETURN;
   46    (XV)  ENGAGES  IN, ENCOURAGES, SOLICITS OR ATTEMPTS TO FORCE OTHERS TO
   47  ENGAGE IN SEXUAL ACTS OR GESTURES;
   48    (XVI) TAMPERS WITH OR THREATENS WITNESSES OR INFORMANTS IN ANY  INVES-
   49  TIGATION; OR
   50    (XVII)  POSSESSES  TOOLS, CULINARY INSTRUMENTS OR OTHER ITEMS THAT MAY
   51  BE CLASSIFIED AS WEAPONS BY USE OR APPEARANCE WITHOUT AUTHORIZATION.
   52    6. STAFFING. PROGRAMS OPERATED, LICENSED, CERTIFIED OR  REGISTERED  BY
   53  THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL COMPLY WITH THE FOLLOW-
   54  ING STAFFING REQUIREMENTS:
       A. 3136                             6
    1    (A)  THOSE  PROGRAMS  ACCEPTING  YOUTHS  WITH RISK LEVEL I ASSESSMENTS
    2  SHALL HAVE STAFFING SUFFICIENT TO ENSURE THE SAFETY OF THE EMPLOYEES AND
    3  RESIDENTS OF THE PROGRAM.
    4    (B)  THOSE  PROGRAMS  ACCEPTING  YOUTHS WITH RISK LEVEL II ASSESSMENTS
    5  SHALL HAVE STAFFING SUFFICIENT TO  ENSURE  THAT  NO  EMPLOYEE  SHALL  BE
    6  REQUIRED  TO  SUPERVISE NO MORE THAN ONE SUCH YOUTH, UNLESS THE EMPLOYEE
    7  IS ACCOMPANIED BY NOT LESS THAN ONE OTHER EMPLOYEE  OF  THE  PROGRAM  OR
    8  ANOTHER APPROPRIATE PERSON.
    9    (C)  THOSE  PROGRAMS  ACCEPTING YOUTHS WITH RISK LEVEL III ASSESSMENTS
   10  SHALL BE SECURE OR LIMITED SECURE FACILITIES.
   11    S 6. Subdivision 4 of section 504 of the executive law, as amended  by
   12  chapter 687 of the laws of 1993, is amended to read as follows:
   13    4.  The [division] OFFICE OF CHILDREN AND FAMILY SERVICES shall deter-
   14  mine, SUBJECT TO THE PROVISIONS OF SECTION FIVE HUNDRED  ONE-I  OF  THIS
   15  ARTICLE, the particular [division] OFFICE facility or program in which a
   16  child  placed  with [the division] SUCH OFFICE shall be cared for, based
   17  upon an evaluation of such child. The [division] OFFICE OF CHILDREN  AND
   18  FAMILY SERVICES shall, SUBJECT TO THE PROVISIONS OF SECTION FIVE HUNDRED
   19  ONE-I  OF  THIS  ARTICLE  AND AFTER A COMPLETE REVIEW OF THE RECORDS AND
   20  FILES OF A CHILD, also have  authority  to  discharge  or  conditionally
   21  release  children  placed  with  it and to transfer such children from a
   22  limited secure or non-secure facility to any  other  limited  secure  or
   23  non-secure  facility,  when  the interest of such children requires such
   24  action; provided that a child transferred to a non-secure facility  from
   25  a  limited  secure facility may be returned to a limited secure facility
   26  upon a determination by the [division] OFFICE that, for any reason, care
   27  and  treatment  at  the  non-secure  facility  is  no  longer  suitable.
   28  PROVIDED,  HOWEVER, THAT NO SUCH DISCHARGE, RELEASE OR TRANSFER SHALL BE
   29  AUTHORIZED IF THE CHILD'S RECORDS AND FILES  INCLUDE  (A)  TWO  OR  MORE
   30  LEVEL  C  RULE VIOLATIONS WITHIN THREE MONTHS PRIOR TO A PROPOSED PLACE-
   31  MENT IN A LESS SECURE FACILITY,  OR  (B)  FOUR  OR  MORE  LEVEL  B  RULE
   32  VIOLATIONS  WITHIN  THREE MONTHS PRIOR TO A PROPOSED PLACEMENT IN A LESS
   33  SECURE FACILITY, OR (C) NOTATION OF ANY CONDUCT OR ACT COMMITTED BY SUCH
   34  CHILD WHICH WOULD CONSTITUTE A CRIME DEFINED IN THE PENAL LAW IF COMMIT-
   35  TED BY AN ADULT.
   36    S 7. Section 507-a of the executive law is amended  by  adding  a  new
   37  subdivision 6 to read as follows:
   38    6.  THE  OFFICE OF CHILDREN AND FAMILY SERVICES NOT LESS THAN TEN DAYS
   39  BEFORE THE MOVEMENT OF ANY YOUTH, COMMITTED TO  THE  CUSTODY  OR  SUPER-
   40  VISION  OF  SUCH  OFFICE, TO ANY FACILITY OR PROGRAM OPERATED, LICENSED,
   41  REGISTERED, CERTIFIED OR AUTHORIZED BY THE OFFICE, SHALL PROVIDE  NOTICE
   42  OF  THE  MOVEMENT  OF SUCH YOUTH TO THE DIVISION OF STATE POLICE AND THE
   43  LOCAL LAW ENFORCEMENT AGENCY HAVING JURISDICTION OVER  THE  FACILITY  OR
   44  PROGRAM  TO  WHICH  THE YOUTH IS TO BE MOVED. SUCH NOTICE SHALL INCLUDE,
   45  BUT NOT BE LIMITED TO, REPORTS OF THE YOUTH'S PRIOR  ASSAULTS,  ACTS  OF
   46  VIOLENCE, ATTEMPTED SUICIDES, ESCAPES AND ATTEMPTED ESCAPES WHILE IN THE
   47  CARE AND CUSTODY OF THE OFFICE, AND CRIMINAL CHARGES.
   48    S 8. Title 2 of article 19-G of the executive law is amended by adding
   49  a new section 510 to read as follows:
   50    S  510.  REPORTS  OF  YOUTH  CRIMINAL ACTIVITY; REQUIRED. 1. (A) EVERY
   51  OFFICER AND EMPLOYEE OF A FACILITY OR PROGRAM, THAT IS  SUBJECT  TO  THE
   52  PROVISIONS OF THIS TITLE, SHALL REPORT OR CAUSE A REPORT TO BE MADE TO A
   53  LAW ENFORCEMENT AGENCY HAVING JURISDICTION WHEN SUCH OFFICER OR EMPLOYEE
   54  HAS  REASONABLE CAUSE TO SUSPECT BASED UPON PERSONAL KNOWLEDGE OF FACTS,
   55  CONDITIONS OR CIRCUMSTANCES THAT A YOUTH IN SUCH FACILITY OR PROGRAM HAS
   56  COMMITTED AN ACT, WHICH IF THE YOUTH WAS AN  ADULT,  WOULD  BE  A  CRIME
       A. 3136                             7
    1  DEFINED  IN THE PENAL LAW, OR HAS COMMITTED A CRIME DEFINED IN THE PENAL
    2  LAW.
    3    (B)  AFTER  SUBMITTING  A  REPORT TO THE LAW ENFORCEMENT AGENCY HAVING
    4  JURISDICTION, THE OFFICER AND EMPLOYEE SHALL PROVIDE NOTICE  THEREOF  TO
    5  HIS  OR  HER EMPLOYER AND TO THE OFFICE OF CHILDREN AND FAMILY SERVICES.
    6  NEITHER OPERATOR OF A  FACILITY  OR  PROGRAM  THAT  IS  SUBJECT  TO  THE
    7  PROVISIONS OF THIS TITLE, NOR THE OFFICE OF CHILDREN AND FAMILY SERVICES
    8  SHALL  DENY  A  LAW  ENFORCEMENT AGENCY ACCESS TO ANY PROGRAM, FACILITY,
    9  OFFICER, EMPLOYEE OR YOUTH WHILE SUCH AGENCY IS  IN  THE  COURSE  OF  AN
   10  INVESTIGATION  RELATING  TO A REPORT SUBMITTED PURSUANT TO PARAGRAPH (A)
   11  OF THIS SUBDIVISION.
   12    (C) NO OPERATOR OF A  PROGRAM  OR  FACILITY  LICENSED,  REGISTERED  OR
   13  CERTIFIED  BY  THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL TAKE ANY
   14  RETALIATORY PERSONNEL ACTION, AS SUCH TERM IS DEFINED IN  PARAGRAPH  (E)
   15  OF  SUBDIVISION  ONE  OF  SECTION  SEVEN HUNDRED FORTY OF THE LABOR LAW,
   16  AGAINST AN EMPLOYEE BECAUSE SUCH EMPLOYEE BELIEVES THAT HE  OR  SHE  HAS
   17  REASONABLE  CAUSE  TO  SUSPECT THAT A YOUTH HAS COMMITTED A CRIMINAL ACT
   18  AND THAT EMPLOYEE THEREFORE MAKES  A  REPORT  IN  ACCORDANCE  WITH  THIS
   19  TITLE. NO FACILITY OR PROGRAM, LICENSED, REGISTERED OR CERTIFIED BY SUCH
   20  OFFICE  SHALL  IMPOSE  ANY CONDITIONS, INCLUDING PRIOR APPROVAL OR PRIOR
   21  NOTIFICATION, UPON A MEMBER OF ITS STAFF SPECIFICALLY REQUIRED TO REPORT
   22  UNDER THIS TITLE. AT THE TIME OF THE MAKING OF A REPORT, OR AT ANY  TIME
   23  THEREAFTER,  SUCH  PERSON  OR OFFICIAL MAY EXERCISE THE RIGHT TO REQUEST
   24  THE FINDINGS OF AN INVESTIGATION MADE PURSUANT TO THIS SECTION.
   25    2. ANY PERSON, OFFICIAL OR  INSTITUTION  REQUIRED  BY  THIS  TITLE  TO
   26  REPORT  A  YOUTH'S CRIMINAL ACT WHO WILLFULLY CONCEALS THE COMMISSION OF
   27  SUCH CRIME SHALL BE GUILTY OF A CLASS A MISDEMEANOR.
   28    3. ANY PERSON, OFFICIAL OR  INSTITUTION  REQUIRED  BY  THIS  TITLE  TO
   29  REPORT  A  YOUTH'S CRIMINAL ACT WHO KNOWINGLY CONCEALS THE COMMISSION OF
   30  SUCH CRIME SHALL BE CIVILLY LIABLE FOR THE DAMAGES PROXIMATELY CAUSED BY
   31  SUCH CONCEALMENT.
   32    4. THE OFFICE OF CHILDREN AND FAMILY SERVICES SHALL  INCLUDE  INSTRUC-
   33  TION  ON THE PROVISIONS OF THIS SECTION AS PART OF THE TRAINING REQUIRED
   34  BY SUBDIVISION TWELVE-A OF SECTION FIVE HUNDRED ONE OF THIS ARTICLE.
   35    S 9. Subdivision 1 of section 510-c of the executive law,  as  amended
   36  by chapter 465 of the laws of 1992, is amended to read as follows:
   37    1.  The [division] OFFICE OF CHILDREN AND FAMILY SERVICES may, SUBJECT
   38  TO THE PROVISIONS OF SECTION FIVE HUNDRED  ONE-I  OF  THIS  ARTICLE  AND
   39  AFTER  A  COMPLETE  REVIEW  OF  THE  RECORDS  AND  THE FILES OF A CHILD,
   40  discharge from its custody any child placed with the  [division]  OFFICE
   41  whenever it deems such discharge to be in the best interest of the child
   42  and  there  is  reasonable  probability that the child can be discharged
   43  without endangering the public safety; provided, however, that no  child
   44  while  absent from a division facility without the consent of the direc-
   45  tor of such facility shall be discharged by the [division] OFFICE solely
   46  by reason of the absence[, and]; provided further that no child  in  the
   47  custody  of  the  division  and  transferred to the department of mental
   48  hygiene, while absent from a department of mental hygiene facility with-
   49  out the consent of the superintendent  or  director  of  such  facility,
   50  shall  be  discharged  by  the  division; AND PROVIDED, FURTHER, THAT NO
   51  CHILD SHALL BE DISCHARGED IF HIS OR HER RECORDS AND  FILES  INCLUDE  (A)
   52  TWO  OR  MORE  LEVEL  C  RULE  VIOLATIONS WITHIN THREE MONTHS PRIOR TO A
   53  PROPOSED PLACEMENT IN A LESS SECURE FACILITY, OR (B) FOUR OR MORE  LEVEL
   54  B RULE VIOLATIONS WITHIN THREE MONTHS PRIOR TO A PROPOSED PLACEMENT IN A
   55  LESS SECURE FACILITY, OR (C) NOTATION OF ANY CONDUCT OR ACT COMMITTED BY
       A. 3136                             8
    1  SUCH  CHILD  WHICH WOULD CONSTITUTE A DESIGNATED FELONY CRIME DEFINED IN
    2  THE PENAL LAW IF COMMITTED BY AN ADULT.
    3    S  10.  Section  837  of  the executive law is amended by adding a new
    4  subdivision 20 to read as follows:
    5    20. ESTABLISH RULES AND REGULATIONS REQUIRING,  UPON  REQUEST  OF  THE
    6  OPERATOR  OF  A FACILITY OR PROGRAM LICENSED, REGISTERED OR CERTIFIED BY
    7  THE OFFICE OF CHILDREN AND FAMILY SERVICES, WHEN A  YOUTH  HAS  ABSENTED
    8  HIMSELF  OR HERSELF FROM SUCH FACILITY OR PROGRAM WITHOUT AUTHORIZATION,
    9  THAT A POLICE OFFICER HAVING JURISDICTION ESCORT  AN  EMPLOYEE  OF  SUCH
   10  FACILITY OR PROGRAM TO THE ABSENT YOUTH'S PLACE OF RESIDENCE TO INVESTI-
   11  GATE  WHERE  SUCH YOUTH HAS FLED. EVERY SUCH POLICE OFFICER SHALL ASSIST
   12  THE EMPLOYEE IN TAKING THE YOUTH INTO CUSTODY AND RETURNING THE YOUTH TO
   13  THE FACILITY OR PROGRAM TO WHICH THE YOUTH IS ASSIGNED.
   14    S 11. Section 166 of the family  court  act  is  amended  to  read  as
   15  follows:
   16    S  166.  Privacy  of records. (A) The records of any proceeding in the
   17  family court shall not be  open  to  indiscriminate  public  inspection.
   18  However,  the  court  in  its  discretion  in  any  case  may permit the
   19  inspection of any papers or records. Any duly authorized agency, associ-
   20  ation, society or institution to which a child is committed may cause an
   21  inspection of the record of investigation to  be  had  and  may  in  the
   22  discretion  of  the  court  obtain  a  copy of the whole or part of such
   23  record.
   24    (B) NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION (A) OF THIS SECTION,
   25  THE RECORDS OF EVERY JUVENILE DELINQUENCY PROCEEDING IN THE FAMILY COURT
   26  OF A PERSON, WHO IS PLACED WITH OR  COMMITTED  TO  THE  CUSTODY  OF  THE
   27  OFFICE  OF  CHILDREN  AND  FAMILY  SERVICES,  SHALL  BE  OPEN  TO AND BE
   28  PROVIDED:
   29    (1) TO THE STAFF MEMBERS AND EMPLOYEES OF THE FACILITY, WHETHER  OPER-
   30  ATED  BY SUCH OFFICE OR NOT, IN WHICH SUCH PERSON IS PLACED OR COMMITTED
   31  AS A JUVENILE DELINQUENT, JUVENILE OFFENDER OR YOUTHFUL OFFENDER BY  THE
   32  OFFICE OF CHILDREN AND FAMILY SERVICES WHEN THE STAFF MEMBER OR EMPLOYEE
   33  IS  RESPONSIBLE  FOR  THE  CARE, CUSTODY, TREATMENT, HOUSING, EDUCATION,
   34  REHABILITATION OR GUIDANCE OF THE PERSON;
   35    (2) IN THE EVENT SUCH PERSON ENGAGES IN  CONDUCT  OR  COMMITS  AN  ACT
   36  WHICH  WOULD  CONSTITUTE  A CRIME DEFINED IN THE PENAL LAW IF THE PERSON
   37  WAS AN ADULT OR COMMITS A CRIME DEFINED IN THE PENAL LAW, TO THE  COURT,
   38  THE  PRESENTMENT AGENCY OR DISTRICT ATTORNEY, AND SUCH PERSON'S ATTORNEY
   39  UPON THE FILING OF CHARGES AGAINST THE PERSON RELATING  TO  SUCH  CRIME;
   40  AND
   41    (3)  TO ANY FOSTER PARENTS HAVING CUSTODY OF SUCH PERSON AFTER RELEASE
   42  FROM THE CUSTODY OF THE OFFICE OF CHILDREN AND FAMILY SERVICES.
   43    S 12. Section 720.35 of the  criminal  procedure  law  is  amended  by
   44  adding a new subdivision 5 to read as follows:
   45    5.  NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION TWO OF THIS SECTION,
   46  ALL OFFICIAL RECORDS AND PAPERS OF A YOUTHFUL OFFENDER, WHO IS COMMITTED
   47  TO THE CUSTODY OF THE OFFICE OF CHILDREN AND FAMILY  SERVICES  SHALL  BE
   48  OPEN TO AND BE PROVIDED TO:
   49    (A)  THE STAFF MEMBERS AND EMPLOYEES OF THE FACILITY, WHETHER OPERATED
   50  BY SUCH OFFICE OR NOT, IN WHICH THE OFFENDER IS COMMITTED BY THE  OFFICE
   51  OF  CHILDREN  AND  FAMILY  SERVICES WHEN THE STAFF MEMBER OR EMPLOYEE IS
   52  RESPONSIBLE FOR THE CARE, CUSTODY, TREATMENT, HOUSING, EDUCATION,  REHA-
   53  BILITATION OR GUIDANCE OF THE YOUTHFUL OFFENDER;
   54    (B)  IN THE EVENT THE YOUTHFUL OFFENDER COMMITS A CRIME DEFINED IN THE
   55  PENAL LAW, TO  THE  COURT,  THE  DISTRICT  ATTORNEY,  AND  THE  YOUTHFUL
       A. 3136                             9
    1  OFFENDER'S  ATTORNEY  UPON  THE  FILING OF CHARGES AGAINST SUCH OFFENDER
    2  RELATING TO SUCH CRIME; AND
    3    (C)  TO  ANY  FOSTER  PARENTS HAVING CUSTODY OF SUCH YOUTHFUL OFFENDER
    4  AFTER RELEASE FROM THE CUSTODY OF THE  OFFICE  OF  CHILDREN  AND  FAMILY
    5  SERVICES.
    6    S  13.  Section  725.15  of  the criminal procedure law, as amended by
    7  chapter 7 of the laws of 2007, is amended to read as follows:
    8  S 725.15 Sealing of records.
    9    1. Except where specifically required or permitted by statute or  upon
   10  specific  authorization  of the court that directed removal of an action
   11  to the family court all official records and papers of the action up  to
   12  and  including  the  order of removal, whether on file with the court, a
   13  police agency or the division of criminal justice services,  are  confi-
   14  dential  and  must  not  be  made  available  to any person or public or
   15  private agency, provided however that availability of copies of any such
   16  records and papers on file with the family court shall  be  governed  by
   17  provisions that apply to family court records, and further provided that
   18  all official records and papers of the action shall be included in those
   19  records and reports that may be obtained upon request by the commission-
   20  er of mental health or commissioner of [mental retardation and] develop-
   21  mental  disabilities,  as  appropriate;  the  case review panel; and the
   22  attorney general pursuant to section 10.05 of the mental hygiene law.
   23    2. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF THIS  SECTION,
   24  ALL  OFFICIAL  RECORDS  AND  PAPERS  OF AN ACTION RELATING TO A JUVENILE
   25  OFFENDER, WHO IS PLACED WITH THE OFFICE OF CHILDREN AND FAMILY  SERVICES
   26  SHALL BE OPEN TO AND BE PROVIDED:
   27    (A)  TO THE STAFF MEMBERS AND EMPLOYEES OF THE FACILITY, WHETHER OPER-
   28  ATED BY SUCH OFFICE OR NOT, IN WHICH  THE  OFFENDER  IS  PLACED  BY  THE
   29  OFFICE OF CHILDREN AND FAMILY SERVICES WHEN THE STAFF MEMBER OR EMPLOYEE
   30  IS  RESPONSIBLE  FOR  THE  CARE, CUSTODY, TREATMENT, HOUSING, EDUCATION,
   31  REHABILITATION OR GUIDANCE OF THE JUVENILE OFFENDER;
   32    (B) IN THE EVENT THE JUVENILE OFFENDER ENGAGES IN CONDUCT  OR  COMMITS
   33  AN  ACT  WHICH  WOULD CONSTITUTE A CRIME DEFINED IN THE PENAL LAW IF THE
   34  OFFENDER WAS AN ADULT OR COMMITS A CRIME DEFINED IN THE  PENAL  LAW,  TO
   35  THE  COURT,  THE  PRESENTMENT  AGENCY  OR  DISTRICT  ATTORNEY,  AND SUCH
   36  OFFENDER'S ATTORNEY UPON THE FILING  OF  CHARGES  AGAINST  THE  JUVENILE
   37  OFFENDER RELATING TO SUCH CRIME; AND
   38    (C)  TO  ANY  FOSTER  PARENTS HAVING CUSTODY OF SUCH JUVENILE OFFENDER
   39  AFTER RELEASE FROM THE CUSTODY OF THE  OFFICE  OF  CHILDREN  AND  FAMILY
   40  SERVICES.
   41    S  14. Subdivision 2 of section 212 of the judiciary law is amended by
   42  adding a new paragraph (s) to read as follows:
   43    (S) ADOPT RULES, ORDERS AND FORMS PROVIDING FOR THE PROVISION  OF  THE
   44  OFFICIAL  RECORDS AND PAPERS OF JUVENILE DELINQUENTS, JUVENILE OFFENDERS
   45  AND YOUTHFUL OFFENDERS  PURSUANT  TO  SUBDIVISION  (A)  OF  SECTION  ONE
   46  HUNDRED  SIXTY-SIX  OF THE FAMILY COURT ACT, SUBDIVISION FIVE OF SECTION
   47  720.35 OF THE CRIMINAL PROCEDURE LAW, AND  SUBDIVISION  TWO  OF  SECTION
   48  725.15 OF THE CRIMINAL PROCEDURE LAW.
   49    S  15.  Severability.  If  any clause, sentence, paragraph, section or
   50  part of this act shall be adjudged by any court of  competent  jurisdic-
   51  tion  to be invalid and after exhaustion of all further judicial review,
   52  the judgment shall not affect, impair or invalidate the remainder there-
   53  of, but shall be confined in its  operation  to  the  clause,  sentence,
   54  paragraph,  section or part of this act directly involved in the contro-
   55  versy in which the judgment shall have been rendered.
       A. 3136                            10
    1    S 16. This act shall take effect on the first of January next succeed-
    2  ing the date on which it shall have become a law; provided that,  effec-
    3  tive  immediately,  any rules and regulations necessary to implement the
    4  provisions of this act on  its  effective  date  are  authorized  to  be
    5  promulgated, repealed and/or amended on or before such date.