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