Bill Text: NY A02809 | 2013-2014 | General Assembly | Introduced
Bill Title: Authorizes courts to issue orders of protection of further or permanent duration in the presence of aggravating circumstances; applies to criminal and family courts; requires a motion to vacate or modify an order of protection to be made on notice to the non-moving party.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2014-01-08 - referred to codes [A02809 Detail]
Download: New_York-2013-A02809-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
2809
2013-2014 Regular Sessions
I N A S S E M B L Y
January 18, 2013
___________
Introduced by M. of A. WRIGHT -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law and the family court act, in
relation to the duration of orders of protection
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The opening paragraph of subdivision 5 of section 530.12 of
2 the criminal procedure law, as amended by section 1 of chapter 9 of the
3 laws of 2011, is amended to read as follows:
4 Upon sentencing on a conviction for any crime or violation between
5 spouses, between a parent and child, or between members of the same
6 family or household as defined in subdivision one of section 530.11 of
7 this article, the court may in addition to any other disposition,
8 including a conditional discharge or youthful offender adjudication,
9 enter an order of protection. Where a temporary order of protection was
10 issued, the court shall state on the record the reasons for issuing or
11 not issuing an order of protection. The duration of such an order shall
12 be fixed by the court and: (A) in the case of a felony conviction, shall
13 not exceed the greater of: (i) eight years from the date of such
14 sentencing, or (ii) eight years from the date of the expiration of the
15 maximum term of an indeterminate or the term of a determinate sentence
16 of imprisonment actually imposed; or (B) in the case of a conviction for
17 a class A misdemeanor, shall not exceed the greater of: (i) five years
18 from the date of such sentencing, or (ii) five years from the date of
19 the expiration of the maximum term of a definite or intermittent term
20 actually imposed; or (C) in the case of a conviction for any other
21 offense, shall not exceed the greater of: (i) two years from the date of
22 sentencing, or (ii) two years from the date of the expiration of the
23 maximum term of a definite or intermittent term actually imposed. For
24 purposes of determining the duration of an order of protection entered
25 pursuant to this subdivision, a conviction shall be deemed to include a
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00635-01-3
A. 2809 2
1 conviction that has been replaced by a youthful offender adjudication.
2 IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVI-
3 SION FIVE-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF
4 PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS
5 SET FORTH ABOVE, OR MAY ENTER A PERMANENT ORDER OF PROTECTION. THE
6 COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE
7 ORDER OF PROTECTION. In addition to any other conditions, such an order
8 may require the defendant:
9 S 2. The opening paragraph of subdivision 5 of section 530.12 of the
10 criminal procedure law, as amended by section 2 of chapter 9 of the laws
11 of 2011, is amended to read as follows:
12 Upon sentencing on a conviction for any crime or violation between
13 spouses, between a parent and child, or between members of the same
14 family or household as defined in subdivision one of section 530.11 of
15 this article, the court may in addition to any other disposition,
16 including a conditional discharge or youthful offender adjudication,
17 enter an order of protection. Where a temporary order of protection was
18 issued, the court shall state on the record the reasons for issuing or
19 not issuing an order of protection. The duration of such an order shall
20 be fixed by the court and, in the case of a felony conviction, shall not
21 exceed the greater of: (i) five years from the date of such sentencing,
22 or (ii) three years from the date of the expiration of the maximum term
23 of an indeterminate sentence of imprisonment actually imposed; or in the
24 case of a conviction for a class A misdemeanor, shall not exceed three
25 years from the date of such sentencing; or in the case of a conviction
26 for any other offense, shall not exceed one year from the date of
27 sentencing. For purposes of determining the duration of an order of
28 protection entered pursuant to this subdivision, a conviction shall be
29 deemed to include a conviction that has been replaced by a youthful
30 offender adjudication. IF THE COURT FINDS THAT AGGRAVATING CIRCUM-
31 STANCES AS DEFINED IN SUBDIVISION FIVE-A OF THIS SECTION EXIST, THE
32 COURT MAY ENTER AN ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN
33 EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR MAY ENTER A PERMANENT
34 ORDER OF PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES
35 SHALL BE STATED UPON THE ORDER OF PROTECTION. In addition to any other
36 conditions, such an order may require the defendant:
37 S 3. Section 530.12 of the criminal procedure law is amended by adding
38 a new subdivision 5-a to read as follows:
39 5-A. FOR THE PURPOSES OF SUBDIVISION FIVE OF THIS SECTION, "AGGRAVAT-
40 ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
41 TO THE COMPLAINANT CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS
42 INSTRUMENT AGAINST THE COMPLAINANT BY THE DEFENDANT, A HISTORY OF
43 REPEATED VIOLATIONS OF PRIOR ORDERS OF PROTECTION BY THE DEFENDANT,
44 PRIOR CONVICTIONS FOR CRIMES AGAINST THE COMPLAINANT BY THE DEFENDANT OR
45 THE EXPOSURE OF ANY FAMILY OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE
46 DEFENDANT, AND LIKE INCIDENTS, BEHAVIORS, AND OCCURRENCES WHICH TO THE
47 COURT CONSTITUTE AN IMMEDIATE AND ONGOING DANGER TO THE COMPLAINANT OR
48 ANY MEMBER OF THE COMPLAINANT'S FAMILY OR HOUSEHOLD.
49 S 4. The closing paragraph of subdivision 6 of section 530.12 of the
50 criminal procedure law, as added by chapter 222 of the laws of 1994, is
51 amended to read as follows:
52 [Such] WHEN AN ORDER OF PROTECTION IS OF FIXED DURATION, THE order of
53 protection shall plainly state the date that such order expires, AND
54 WHERE THE ORDER IS OF PERMANENT DURATION, THE ORDER SHALL CLEARLY SO
55 STATE.
A. 2809 3
1 S 5. Subdivision 15 of section 530.12 of the criminal procedure law,
2 as amended by chapter 186 of the laws of 1997, is amended to read as
3 follows:
4 15. Any motion to vacate or modify an order of protection, INCLUDING A
5 PERMANENT ORDER OF PROTECTION, or A temporary order of protection shall
6 be MADE on notice to the non-moving party, except as provided in subdi-
7 vision three-b of this section.
8 S 6. The opening paragraph of subdivision 4 of section 530.13 of the
9 criminal procedure law, as amended by section 3 of chapter 9 of the laws
10 of 2011, is amended to read as follows:
11 Upon sentencing on a conviction for any offense, where the court has
12 not issued an order of protection pursuant to section 530.12 of this
13 article, the court may, in addition to any other disposition, including
14 a conditional discharge or youthful offender adjudication, enter an
15 order of protection. Where a temporary order of protection was issued,
16 the court shall state on the record the reasons for issuing or not issu-
17 ing an order of protection. The duration of such an order shall be fixed
18 by the court and; (A) in the case of a felony conviction, shall not
19 exceed the greater of: (i) eight years from the date of such sentencing,
20 or (ii) eight years from the date of the expiration of the maximum term
21 of an indeterminate or the term of a determinate sentence of imprison-
22 ment actually imposed; or (B) in the case of a conviction for a class A
23 misdemeanor, shall not exceed the greater of: (i) five years from the
24 date of such sentencing, or (ii) five years from the date of the expira-
25 tion of the maximum term of a definite or intermittent term actually
26 imposed; or (C) in the case of a conviction for any other offense, shall
27 not exceed the greater of: (i) two years from the date of sentencing, or
28 (ii) two years from the date of the expiration of the maximum term of a
29 definite or intermittent term actually imposed. For purposes of deter-
30 mining the duration of an order of protection entered pursuant to this
31 subdivision, a conviction shall be deemed to include a conviction that
32 has been replaced by a youthful offender adjudication. IF THE COURT
33 FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVISION FOUR-A OF
34 THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF PROTECTION FOR A
35 FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR
36 MAY ENTER A PERMANENT ORDER OF PROTECTION. THE COURT'S FINDING OF AGGRA-
37 VATING CIRCUMSTANCES SHALL BE STATED UPON THE ORDER OF PROTECTION. In
38 addition to any other conditions such an order may require that the
39 defendant:
40 S 7. The opening paragraph of subdivision 4 of section 530.13 of the
41 criminal procedure law, as amended by section 4 of chapter 9 of the laws
42 of 2011, is amended to read as follows:
43 Upon sentencing on a conviction for any offense, where the court has
44 not issued an order of protection pursuant to section 530.12 of this
45 article, the court may, in addition to any other disposition, including
46 a conditional discharge or youthful offender adjudication, enter an
47 order of protection. Where a temporary order of protection was issued,
48 the court shall state on the record the reasons for issuing or not issu-
49 ing an order of protection. The duration of such an order shall be fixed
50 by the court and, in the case of a felony conviction, shall not exceed
51 the greater of: (i) five years from the date of such sentencing, or (ii)
52 three years from the date of the expiration of the maximum term of an
53 indeterminate sentence of imprisonment actually imposed; or in the case
54 of a conviction for a class A misdemeanor, shall not exceed three years
55 from the date of such sentencing; or in the case of a conviction for any
56 other offense, shall not exceed one year from the date of sentencing.
A. 2809 4
1 For purposes of determining the duration of an order of protection
2 entered pursuant to this subdivision, a conviction shall be deemed to
3 include a conviction that has been replaced by a youthful offender adju-
4 dication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED
5 IN SUBDIVISION FOUR-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN
6 ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT
7 TERMS SET FORTH ABOVE, OR MAY ENTER A PERMANENT ORDER OF PROTECTION. THE
8 COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE
9 ORDER OF PROTECTION. In addition to any other conditions such an order
10 may require that the defendant:
11 S 8. Section 530.13 of the criminal procedure law is amended by adding
12 two new subdivisions 4-a and 10 to read as follows:
13 4-A. FOR THE PURPOSES OF SUBDIVISION FOUR OF THIS SECTION, "AGGRAVAT-
14 ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
15 TO THE VICTIM CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS INSTRUMENT
16 AGAINST THE VICTIM BY THE DEFENDANT, A HISTORY OF REPEATED VIOLATIONS OF
17 PRIOR ORDERS OF PROTECTION BY THE DEFENDANT, PRIOR CONVICTIONS FOR
18 CRIMES AGAINST THE VICTIM BY THE DEFENDANT OR THE EXPOSURE OF ANY FAMILY
19 OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE DEFENDANT, AND LIKE INCI-
20 DENTS, BEHAVIORS, AND OCCURRENCES WHICH TO THE COURT CONSTITUTE AN IMME-
21 DIATE AND ONGOING DANGER TO THE VICTIM, OR ANY MEMBER OF THE VICTIM'S
22 FAMILY OR HOUSEHOLD.
23 10. ANY MOTION TO VACATE OR MODIFY AN ORDER OF PROTECTION, INCLUDING A
24 PERMANENT ORDER OF PROTECTION, OR A TEMPORARY ORDER OF PROTECTION SHALL
25 BE MADE ON NOTICE TO THE NON-MOVING PARTY.
26 S 9. Section 842 of the family court act, as amended by chapter 222 of
27 the laws of 1994, the opening paragraph as separately amended by chap-
28 ters 325 and 341 of the laws of 2010, subdivisions (a), (b), (c), (d)
29 and (e) as amended by chapter 483 of the laws of 1995, subdivision (i)
30 as added by chapter 253 of the laws of 2006, subdivision (j) as added by
31 chapter 483 of the laws of 1995 and as relettered by chapter 253 of the
32 laws of 2006, the second undesignated paragraph as amended by chapter
33 325 of the laws of 2010, the third undesignated paragraph as amended by
34 chapter 224 of the laws of 1994, the sixth undesignated paragraph as
35 amended by section 114 of subpart B of part C of chapter 62 of the laws
36 of 2011, the seventh undesignated paragraph as amended by chapter 326 of
37 the laws of 2008 and the closing paragraph as added by chapter 73 of the
38 laws of 2007, is amended to read as follows:
39 S 842. Order of protection. An order of protection under section
40 eight hundred forty-one of this part shall set forth reasonable condi-
41 tions of behavior to be observed for a period not in excess of two years
42 by the petitioner or respondent or for a period not in excess of five
43 years upon (i) a finding by the court on the record of the existence of
44 aggravating circumstances as defined in paragraph (vii) of subdivision
45 (a) of section eight hundred twenty-seven of this article, THE COURT MAY
46 ISSUE AN ORDER OF PROTECTION FOR A FIXED PERIOD IN EXCESS OF ONE YEAR OR
47 A PERMANENT ORDER OF PROTECTION; or (ii) a finding by the court on the
48 record that the conduct alleged in the petition is in violation of a
49 valid order of protection. Any finding of aggravating circumstances
50 pursuant to this section shall be stated on the record and upon the
51 order of protection. The court may also, upon motion, extend the order
52 of protection for a reasonable period of time upon a showing of good
53 cause or consent of the parties. The fact that abuse has not occurred
54 during the pendency of an order shall not, in itself, constitute suffi-
55 cient ground for denying or failing to extend the order. The court must
56 articulate a basis for its decision on the record. The duration of any
A. 2809 5
1 temporary order shall not by itself be a factor in determining the
2 length or issuance of any final order. Any order of protection issued
3 pursuant to this section shall specify if an order of probation is in
4 effect. Any order of protection issued pursuant to this section may
5 require the petitioner or the respondent:
6 (a) to stay away from the home, school, business or place of employ-
7 ment of any other party, the other spouse, the other parent, or the
8 child, and to stay away from any other specific location designated by
9 the court, provided that the court shall make a determination, and shall
10 state such determination in a written decision or on the record, whether
11 to impose a condition pursuant to this subdivision, provided further,
12 however, that failure to make such a determination shall not affect the
13 validity of such order of protection. In making such determination, the
14 court shall consider, but shall not be limited to consideration of,
15 whether the order of protection is likely to achieve its purpose in the
16 absence of such a condition, conduct subject to prior orders of
17 protection, prior incidents of abuse, extent of past or present injury,
18 threats, drug or alcohol abuse, and access to weapons;
19 (b) to permit a parent, or a person entitled to visitation by a court
20 order or a separation agreement, to visit the child at stated periods;
21 (c) to refrain from committing a family offense, as defined in subdi-
22 vision one of section eight hundred twelve of this act, or any criminal
23 offense against the child or against the other parent or against any
24 person to whom custody of the child is awarded, or from harassing,
25 intimidating or threatening such persons;
26 (d) to permit a designated party to enter the residence during a spec-
27 ified period of time in order to remove personal belongings not in issue
28 in this proceeding or in any other proceeding or action under this act
29 or the domestic relations law;
30 (e) to refrain from acts of commission or omission that create an
31 unreasonable risk to the health, safety or welfare of a child;
32 (f) to pay the reasonable counsel fees and disbursements involved in
33 obtaining or enforcing the order of the person who is protected by such
34 order if such order is issued or enforced;
35 (g) to require the respondent to participate in a batterer's education
36 program designed to help end violent behavior, which may include refer-
37 ral to drug and alcohol counselling, and to pay the costs thereof if the
38 person has the means to do so, provided however that nothing contained
39 herein shall be deemed to require payment of the costs of any such
40 program by the petitioner, the state or any political subdivision there-
41 of; [and]
42 (h) to provide, either directly or by means of medical and health
43 insurance, for expenses incurred for medical care and treatment arising
44 from the incident or incidents forming the basis for the issuance of the
45 order[.]; AND
46 (i) 1. to refrain from intentionally injuring or killing, without
47 justification, any companion animal the respondent knows to be owned,
48 possessed, leased, kept or held by the petitioner or a minor child
49 residing in the household.
50 2. "Companion animal", as used in this section, shall have the same
51 meaning as in subdivision five of section three hundred fifty of the
52 agriculture and markets law.
53 (j) to observe such other conditions as are necessary to further the
54 purposes of protection.
55 The court may also award custody of the child, during the term of the
56 order of protection to either parent, or to an appropriate relative
A. 2809 6
1 within the second degree. Nothing in this section gives the court power
2 to place or board out any child or to commit a child to an institution
3 or agency.
4 Notwithstanding the provisions of section eight hundred seventeen of
5 this article, where a temporary order of child support has not already
6 been issued, the court may in addition to the issuance of an order of
7 protection pursuant to this section, issue an order for temporary child
8 support in an amount sufficient to meet the needs of the child, without
9 a showing of immediate or emergency need. The court shall make an order
10 for temporary child support notwithstanding that information with
11 respect to income and assets of the respondent may be unavailable. Where
12 such information is available, the court may make an award for temporary
13 child support pursuant to the formula set forth in subdivision one of
14 section four hundred thirteen of this act. Temporary orders of support
15 issued pursuant to this article shall be deemed to have been issued
16 pursuant to section four hundred thirteen of this act.
17 Upon making an order for temporary child support pursuant to this
18 subdivision, the court shall advise the petitioner of the availability
19 of child support enforcement services by the support collection unit of
20 the local department of social services, to enforce the temporary order
21 and to assist in securing continued child support, and shall set the
22 support matter down for further proceedings in accordance with article
23 four of this act.
24 Where the court determines that the respondent has employer-provided
25 medical insurance, the court may further direct, as part of an order of
26 temporary support under this subdivision, that a medical support
27 execution be issued and served upon the respondent's employer as
28 provided for in section fifty-two hundred forty-one of the civil prac-
29 tice law and rules.
30 In any proceeding in which an order of protection or temporary order
31 of protection or a warrant has been issued under this section, the clerk
32 of the court shall issue to the petitioner and respondent and his coun-
33 sel and to any other person affected by the order a copy of the order of
34 protection or temporary order of protection and ensure that a copy of
35 the order of protection or temporary order of protection be transmitted
36 to the local correctional facility where the individual is or will be
37 detained, the state or local correctional facility where the individual
38 is or will be imprisoned, and the supervising probation department or
39 the department of corrections and community supervision where the indi-
40 vidual is under probation or parole supervision.
41 Notwithstanding the foregoing provisions, an order of protection, or
42 temporary order of protection where applicable, may be entered against a
43 former spouse and persons who have a child in common, regardless of
44 whether such persons have been married or have lived together at any
45 time, or against a member of the same family or household as defined in
46 subdivision one of section eight hundred twelve of this article.
47 In addition to the foregoing provisions, the court may issue an order,
48 pursuant to section two hundred twenty-seven-c of the real property law,
49 authorizing the party for whose benefit any order of protection has been
50 issued to terminate a lease or rental agreement pursuant to section two
51 hundred twenty-seven-c of the real property law.
52 ANY MOTION TO VACATE OR MODIFY AN ORDER OF PROTECTION, INCLUDING A
53 PERMANENT ORDER OF PROTECTION, OR A TEMPORARY ORDER OF PROTECTION SHALL
54 BE MADE ON NOTICE TO THE NON-MOVING PARTY.
55 S 10. This act shall take effect immediately, provided that the amend-
56 ments to the opening paragraph of subdivision 5 of section 530.12 and
A. 2809 7
1 the opening paragraph of subdivision 4 of section 530.13 of the criminal
2 procedure law made by sections one and six, respectively, of this act
3 shall be subject to the expiration and reversion of such subdivisions
4 pursuant to section 74 of chapter 3 of the laws of 1995, as amended,
5 when upon such date the provisions of sections two and seven of this act
6 shall take effect.
