N.Y. Comp. Codes R. & Regs. Tit. 9 § 516.1 - General provisions
(a)
Scope, title.
(1) In general. The
administration of military justice in the State Military Forces is governed by
relevant sections of the State Military Law (ML), article 7 and this Chapter
with this Part being the rules for courts-martial.
(2) Title. These rules may be known and cited
as the New York Rules for Courts-Martial (N.Y.R.C.M.).
(b) Purpose and construction.
(1) Purpose. These rules are intended to
provide for the just determination of every proceeding relating to trial by
court-martial.
(2) Construction.
These rules shall be construed in such a manner as to secure simplicity in
procedure, fairness in administration, and the elimination of unjustifiable
expense and delay; and shall be construed consistently with the principles of
law and rules of evidence generally recognized in the trial of cases in the
courts-martial of the United States, where not contrary to or inconsistent with
the code. See 130.36, ML.
(c) Definitions and rules of construction.
The following definitions and rules of construction apply throughout the
Chapter, unless otherwise expressly provided.
(1) Accuser means a person who signs and
swears to charges, any person who directs that charges nominally be signed and
sworn to by another, and any other person who has an interest other than an
official interest in the prosecution of the accused.
(2) Active State duty means full time
military duty in the active service of the State ordered by the Governor or
under his authority, and while going to and returning from such duty.
(3) Code means the State Code of Military
Justice, set forth in ML, article 7.
(4) Commander means a commissioned officer in
command or an officer in charge except in Part 519 of this Title or unless the
context indicates otherwise.
(5)
Commanding officer includes only commissioned officers.
(6) Convening authority includes a
commissioned officer in command for the time being and successors in
command.
(7) Copy means an accurate
reproductions however made. Whenever necessary and feasible, a copy may be made
by handwriting.
(8) Court-martial
includes, depending on the context:
(i) the
military judge and members of a general or special court-martial; or
(ii) the military judge when a session of a
general or special court-martial is conducted without members under 130.39, ML;
or
(iii) the military judge when a
request for trial by military judge alone has been approved under N.Y.R.C.M.
903; or
(iv) the members of a
special court-martial when a military judge has not been detailed; or
(v) the summary court-martial
officer.
(9) Days. When
a period of time is expressed in a number of days, the period shall be in
calendar days, unless otherwise specified. Unless otherwise specified, the date
on which the period begins shall not count, but the date on which the period
ends shall count as one day.
(10)
Detail means to order a person to perform a specific temporary duty, unless the
context indicates otherwise.
(11)
Enlisted member means a person in an enlisted grade in any force of the
organized militia.
(12) Explosive
means gunpowders, powders used for blasting, all forms of high explosives,
blasting materials, fuses (other than electrical circuit breakers), detonators,
and other detonating agents, smokeless powders, any explosive bomb, grenade,
missile, or similar device, and any incendiary bomb or grenade, fire bomb, or
similar device, and any other compound, mixture, or device which is an
explosive within the meaning of 18 U.S.C. and 232(5) or 844(j).
(13) Firearm means any weapon which is
designed to or may be readily converted to expel any projectile by the action
of an explosive.
(14) General
officer means an officer of a force of the organized militia serving in or
having the grade of general, lieutenant general, major general, brigadier
general, admiral, vice admiral, rear admiral, or commodore.
(15) Grade means a step or degree, in a
graduated scale of office or military rank, that is established and designated
as a grade by law or regulation.
(16) Includes means "includes but is not
limited to."
(17) Joint in
connection with military organization connotes activities, operations,
organizations, and the like in which elements of more than one military service
of the same nation participate.
(18) Judge advocate means an officer of a
force of the organized militia who is member of the judge advocate general's
corps or who is designated as a judge advocate.
(19) Legal officer means an officer of the
New York Naval Militia designated to perform legal duties for a
command.
(20) May is used in a
permissive sense. The words no person may. . . mean that no person is required,
authorized, or permitted to do the act prescribed.
(21) Members. The members of a court-martial
are the voting members detailed by the convening authority.
(22) Military judge means the presiding
officer of a general or special court-martial detailed in accordance with
section ML, 130.26. Except as otherwise expressly provided, in the context of a
summary court-martial military judge includes the summary court-martial officer
or in the context of a special court-martial without a military judge, the
president. Unless otherwise indicated in the context, the military judge means
the military judge detailed to the court-martial to which charges in a case
have been referred for trial.
(23)
Officer means commissioned officer, including a commissioned warrant
officer.
(24) Officer in charge
means a member of the Navy, the Marine Corps, or the Coast Guard designated as
such by appropriate authority.
(25)
Organized militia means the organized militia, the composition of which is
stated in ML, section 2.
(26)
Original, with the respect to the appointment of a member of the Armed Forces
in a regular or reserve component, refers to his most recent appointment in
that component that is neither a promotion nor a demotion.
(27) Party, in the context of parties to a
court-martial, means:
(i) the accused and any
defense or associate or assistant defense counsel and agents of the defense
counsel when acting on behalf of the accused with respect to the court-martial
in question; and
(ii) any trial or
assistant trial counsel representing the State, and agents of the trial counsel
when acting on behalf of the trial counsel with respect to the court-martial in
question.
(28) Pay
includes basic pay, special pay, retainer pay, incentive pay, retired pay, and
equivalent pay, but does not include allowances.
(29) Shall is used in an imperative
sense.
(30) Spouse means husband or
wife, as the case may be.
(31)
Staff judge advocate means a judge advocate so designated in the Army, Air
Force or Marine Corps, and means the principal legal advisor of a command in
the Navy and Coast Guard who is a judge advocate.
(32) Sua sponte means that the individual
involved acts on his or her initiative, without the need for a request, motion,
or application.
(33) Supplies
includes material, equipment and stores of all kinds.
(34) Superior commissioned officer means a
commissioned officer superior in rank or command.
(35) The word vehicle includes every
description of carriage or other artificial contrivance used or capable of
being used, as a means of transportation on land.
(36) The word vessel includes every
description of watercraft or other artificial contrivance used, or capable of
being used, as a means of transportation on water.
(d) Unlawful command influence.
(1) General prohibitions.
(i) Convening authorities and commanders. No
convening authority or commander may censure, reprimand, or admonish a
court-martial or other military tribunal or any member, military judge, or
counsel thereof, with respect to the findings or sentence adjudged by the
court-martial or tribunal, or with respect to any other exercise of the
functions of the court-martial or tribunal or such persons in the conduct of
the proceedings (see ML, 130.37[a]).
(ii) All persons subject to the code. No
person subject to the code may attempt to coerce or, by any unauthorized means,
influence the action of a court-martial or any other military tribunal or any
member thereof, in reaching the findings or sentence in any case of the action
of any convening, approving, or reviewing authority with respect to such
authority's judicial acts (see ML, 130.37[a]).
(iii) Exceptions.
(a) Instructions. Subparagraphs (1)(i) and
(ii) of this subdivision do not prohibit general instructional or informational
courses in military justice if such courses are designed solely for the purpose
of instructing personnel of a command in the substantive and procedural aspects
of courts-martial (see ML, 130.37[a]).
(b) Court-martial statements. Subparagraphs
(1)(i) and (ii) of this subdivision do not prohibit statements and instructions
given in open session by the military judger or counsel (see ML,
130.37[a]).
(c) Offense.
Subparagraphs (1)(i) and (ii) of this subdivision do not prohibit appropriate
action against a person for an offense committed while detailed as a military
judge, counsel, or member of a court-martial, or while serving as individual
counsel.
(2)
Prohibitions concerning evaluations.
(i)
Evaluation of member of defense counsel. In the preparation of an
effectiveness, fitness, or efficiency report or any other report or document
used in whole or in part for the purpose of determining whether a member of the
organized militia is qualified to be advanced in grade, or in determining the
assignment or transfer of a member of the organized militia, or in determining
whether a member of the organized militia should be retained, no person subject
to the code may:
(a) consider or evaluate the
performance of duty of any such person as a member of a court-martial;
or
(b) give a less favorable rating
or evaluation of any defense counsel because of the zeal with which such
counsel represented any accused (see ML, 130.37 [b]).
(ii) Evaluation of military judge.
(a) General courts-martial. Neither the
convening authority nor any member of the convening authority's staff may
prepare or review any report concerning the effectiveness, fitness, or
efficiency or the military judge detailed to a general court-martial, which
relates to the performance of duty as a military judge.
(b) Special courts-martial. The convening
authority may not prepare or review any report concerning the effectiveness,
fitness, or efficiency of a military judge detailed to a special court-martial
which relates to the performance of duty as a military judge. When the military
judge is normally rated or the military judge's report is reviewed by the
convening authority, the manner in which such military judge will be rated or
evaluated upon the performance of duty as a military judge may be as prescribed
in regulations of the Chief of Staff to the Governor which shall ensure the
absence of any command influence in the rating or evaluation of the military
judge's judicial performance.
(e)
Direct communications: convening authorities and staff judge advocates; among
staff judge advocates.
(1) Convening
authorities and staff judge advocates. Convening authorities shall at all times
communicate directly with their staff judge advocates in matters relating to
the administration of military justice.
(2) Among staff judge advocates and with the
judge advocate general. The staff judge advocate of any command is entitled to
communicate directly with the staff judge advocate of a superior or subordinate
command, or with the State judge advocate (see 130.6[b], ML).
(f) Delivery of military offenders
to civilian authorities.
(1) In general. A
person subject to the code and under military control accused of an offense
against civilian authority may be delivered, upon request, to the civilian
authority for trial. A member may be placed in restraint by military
authorities for this purpose only upon receipt of a duly issued warrant for the
apprehension of the member or upon receipt of information establishing probable
cause that the member committed an offense, and upon reasonable belief that
such restraint is necessary. Such restraint may continue only for such time as
is reasonably necessary to effect the delivery (see ML, 130.14).
(2) Offenses not under the code. In each case
not involving an offense cognizable under the code, the determination to
deliver or to refuse to deliver, a person subject to the code and under
military control to civil authority must be made by or under the authority of a
general officer. That officer or his designee may (if delivery is made) and
must (if delivery is refused), make an immediate telephone report to the Chief
of Staff to the Governor, giving the circumstances surrounding the commission
of the alleged offense, the evidence leading to a reasonable belief that the
person committed that offense, and, in the case of refusal, the reason for the
failure to make delivery.
(3)
Delivery of prisoner. When delivery under this subdivision is made to any civil
authority of a person undergoing sentence of a court-martial if followed by
conviction in a civilian criminal tribunal, will be interrupt the execution of
the sentence of the court-martial; and the person, after having answered to the
civil authorities for his offense, must be returned to military custody upon
the request of the Chief of Staff to the Governor, for completion of the
court-martial sentence.
(g) Rules of court. The Chief of Staff to the
Governor and persons designated by him, may make rules off court not
inconsistent with the N.Y.R.C.M. and the code for the conduct of court-martial
proceedings (see ML, 130.36). In the event such rule or rules are not
promulgated, the conduct of court-martial proceedings shall be in compliance
with the UCMJ, so long as same is not inconsistent with the
N.Y.R.C.M.
Notes
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