Bill Text: NY A04042 | 2015-2016 | 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 1-0)
Status: (Introduced - Dead) 2016-01-06 - referred to codes [A04042 Detail]
Download: New_York-2015-A04042-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4042
2015-2016 Regular Sessions
I N A S S E M B L Y
January 29, 2015
___________
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.
LBD05448-01-5
A. 4042 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 amended by chapter 480 of the laws of 2013,
51 is 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. 4042 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. 4042 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 526 of
27 the laws of 2013, and the closing paragraph as added by chapter 480 of
28 the laws of 2013, is amended to read as follows:
29 S 842. Order of protection. An order of protection under section
30 eight hundred forty-one of this part shall set forth reasonable condi-
31 tions of behavior to be observed for a period not in excess of two years
32 by the petitioner or respondent or for a period not in excess of five
33 years upon (i) a finding by the court on the record of the existence of
34 aggravating circumstances as defined in paragraph (vii) of subdivision
35 (a) of section eight hundred twenty-seven of this article, THE COURT MAY
36 ISSUE AN ORDER OF PROTECTION FOR A FIXED PERIOD IN EXCESS OF ONE YEAR OR
37 A PERMANENT ORDER OF PROTECTION; or (ii) a finding by the court on the
38 record that the conduct alleged in the petition is in violation of a
39 valid order of protection. Any finding of aggravating circumstances
40 pursuant to this section shall be stated on the record and upon the
41 order of protection. The court may also, upon motion, extend the order
42 of protection for a reasonable period of time upon a showing of good
43 cause or consent of the parties. The fact that abuse has not occurred
44 during the pendency of an order shall not, in itself, constitute suffi-
45 cient ground for denying or failing to extend the order. The court must
46 articulate a basis for its decision on the record. The duration of any
47 temporary order shall not by itself be a factor in determining the
48 length or issuance of any final order. Any order of protection issued
49 pursuant to this section shall specify if an order of probation is in
50 effect. Any order of protection issued pursuant to this section may
51 require the petitioner or the respondent:
52 (a) to stay away from the home, school, business or place of employ-
53 ment of any other party, the other spouse, the other parent, or the
54 child, and to stay away from any other specific location designated by
55 the court, provided that the court shall make a determination, and shall
56 state such determination in a written decision or on the record, whether
A. 4042 5
1 to impose a condition pursuant to this subdivision, provided further,
2 however, that failure to make such a determination shall not affect the
3 validity of such order of protection. In making such determination, the
4 court shall consider, but shall not be limited to consideration of,
5 whether the order of protection is likely to achieve its purpose in the
6 absence of such a condition, conduct subject to prior orders of
7 protection, prior incidents of abuse, extent of past or present injury,
8 threats, drug or alcohol abuse, and access to weapons;
9 (b) to permit a parent, or a person entitled to visitation by a court
10 order or a separation agreement, to visit the child at stated periods;
11 (c) to refrain from committing a family offense, as defined in subdi-
12 vision one of section eight hundred twelve of this act, or any criminal
13 offense against the child or against the other parent or against any
14 person to whom custody of the child is awarded, or from harassing,
15 intimidating or threatening such persons;
16 (d) to permit a designated party to enter the residence during a spec-
17 ified period of time in order to remove personal belongings not in issue
18 in this proceeding or in any other proceeding or action under this act
19 or the domestic relations law;
20 (e) to refrain from acts of commission or omission that create an
21 unreasonable risk to the health, safety or welfare of a child;
22 (f) to pay the reasonable counsel fees and disbursements involved in
23 obtaining or enforcing the order of the person who is protected by such
24 order if such order is issued or enforced;
25 (g) to require the respondent to participate in a batterer's education
26 program designed to help end violent behavior, which may include refer-
27 ral to drug and alcohol counselling, and to pay the costs thereof if the
28 person has the means to do so, provided however that nothing contained
29 herein shall be deemed to require payment of the costs of any such
30 program by the petitioner, the state or any political subdivision there-
31 of;
32 (h) to provide, either directly or by means of medical and health
33 insurance, for expenses incurred for medical care and treatment arising
34 from the incident or incidents forming the basis for the issuance of the
35 order;
36 (i) 1. to refrain from intentionally injuring or killing, without
37 justification, any companion animal the respondent knows to be owned,
38 possessed, leased, kept or held by the petitioner or a minor child
39 residing in the household.
40 2. "Companion animal", as used in this section, shall have the same
41 meaning as in subdivision five of section three hundred fifty of the
42 agriculture and markets law;
43 (j) 1. to promptly return specified identification documents to the
44 protected party, in whose favor the order of protection or temporary
45 order of protection is issued; provided, however, that such order may:
46 (A) include any appropriate provision designed to ensure that any such
47 document is available for use as evidence in this proceeding, and avail-
48 able if necessary for legitimate use by the party against whom such
49 order is issued; and (B) specify the manner in which such return shall
50 be accomplished.
51 2. For purposes of this subdivision, "identification document" shall
52 mean any of the following: (A) exclusively in the name of the protected
53 party: birth certificate, passport, social security card, health insur-
54 ance or other benefits card, a card or document used to access bank,
55 credit or other financial accounts or records, tax returns, any driver's
56 license, and immigration documents including but not limited to a United
A. 4042 6
1 States permanent resident card and employment authorization document;
2 and (B) upon motion and after notice and an opportunity to be heard, any
3 of the following, including those that may reflect joint use or owner-
4 ship, that the court determines are necessary and are appropriately
5 transferred to the protected party: any card or document used to access
6 bank, credit or other financial accounts or records, tax returns, and
7 any other identifying cards and documents; and
8 (k) to observe such other conditions as are necessary to further the
9 purposes of protection.
10 The court may also award custody of the child, during the term of the
11 order of protection to either parent, or to an appropriate relative
12 within the second degree. Nothing in this section gives the court power
13 to place or board out any child or to commit a child to an institution
14 or agency.
15 Notwithstanding the provisions of section eight hundred seventeen of
16 this article, where a temporary order of child support has not already
17 been issued, the court may in addition to the issuance of an order of
18 protection pursuant to this section, issue an order for temporary child
19 support in an amount sufficient to meet the needs of the child, without
20 a showing of immediate or emergency need. The court shall make an order
21 for temporary child support notwithstanding that information with
22 respect to income and assets of the respondent may be unavailable. Where
23 such information is available, the court may make an award for temporary
24 child support pursuant to the formula set forth in subdivision one of
25 section four hundred thirteen of this act. Temporary orders of support
26 issued pursuant to this article shall be deemed to have been issued
27 pursuant to section four hundred thirteen of this act.
28 Upon making an order for temporary child support pursuant to this
29 subdivision, the court shall advise the petitioner of the availability
30 of child support enforcement services by the support collection unit of
31 the local department of social services, to enforce the temporary order
32 and to assist in securing continued child support, and shall set the
33 support matter down for further proceedings in accordance with article
34 four of this act.
35 Where the court determines that the respondent has employer-provided
36 medical insurance, the court may further direct, as part of an order of
37 temporary support under this subdivision, that a medical support
38 execution be issued and served upon the respondent's employer as
39 provided for in section fifty-two hundred forty-one of the civil prac-
40 tice law and rules.
41 In any proceeding in which an order of protection or temporary order
42 of protection or a warrant has been issued under this section, the clerk
43 of the court shall issue to the petitioner and respondent and his coun-
44 sel and to any other person affected by the order a copy of the order of
45 protection or temporary order of protection and ensure that a copy of
46 the order of protection or temporary order of protection be transmitted
47 to the local correctional facility where the individual is or will be
48 detained, the state or local correctional facility where the individual
49 is or will be imprisoned, and the supervising probation department or
50 the department of corrections and community supervision where the indi-
51 vidual is under probation or parole supervision.
52 Notwithstanding the foregoing provisions, an order of protection, or
53 temporary order of protection where applicable, may be entered against a
54 former spouse and persons who have a child in common, regardless of
55 whether such persons have been married or have lived together at any
A. 4042 7
1 time, or against a member of the same family or household as defined in
2 subdivision one of section eight hundred twelve of this article.
3 In addition to the foregoing provisions, the court may issue an order,
4 pursuant to section two hundred twenty-seven-c of the real property law,
5 authorizing the party for whose benefit any order of protection has been
6 issued to terminate a lease or rental agreement pursuant to section two
7 hundred twenty-seven-c of the real property law.
8 The protected party in whose favor the order of protection or tempo-
9 rary order of protection is issued may not be held to violate an order
10 issued in his or her favor nor may such protected party be arrested for
11 violating such order.
12 ANY MOTION TO VACATE OR MODIFY AN ORDER OF PROTECTION, INCLUDING A
13 PERMANENT ORDER OF PROTECTION, OR A TEMPORARY ORDER OF PROTECTION SHALL
14 BE MADE ON NOTICE TO THE NON-MOVING PARTY.
15 S 10. This act shall take effect immediately, provided that the amend-
16 ments to the opening paragraph of subdivision 5 of section 530.12 and
17 the opening paragraph of subdivision 4 of section 530.13 of the criminal
18 procedure law made by sections one and six, respectively, of this act
19 shall be subject to the expiration and reversion of such subdivisions
20 pursuant to section 74 of chapter 3 of the laws of 1995, as amended,
21 when upon such date the provisions of sections two and seven of this act
22 shall take effect.
