Bill Text: NY A04581 | 2015-2016 | General Assembly | Introduced
Bill Title: Authorizes criminal and family courts to issue lifetime orders of protection in the presence of aggravating circumstances after a hearing.
Spectrum: Slight Partisan Bill (Democrat 23-9)
Status: (Introduced - Dead) 2016-01-06 - referred to codes [A04581 Detail]
Download: New_York-2015-A04581-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
4581
2015-2016 Regular Sessions
I N A S S E M B L Y
February 3, 2015
___________
Introduced by M. of A. GJONAJ, SKOUFIS, LAVINE, RAIA, JOHNS, MILLER,
FINCH, CROUCH, ROBERTS, HOOPER, CRESPO, HEVESI, COOK, MOSLEY --
Multi-Sponsored by -- M. of A. ARROYO, DUPREY, GALEF, GIGLIO, GUNTHER,
McKEVITT, PERRY, RA, RIVERA, SCHIMEL, SIMANOWITZ -- 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 allowing for lifetime orders of protection for aggra-
vating circumstances
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08617-02-5
A. 4581 2
1 sentencing, or (ii) two years from the date of the expiration of the
2 maximum term of a definite or intermittent term actually imposed. For
3 purposes of determining the duration of an order of protection entered
4 pursuant to this subdivision, a conviction shall be deemed to include a
5 conviction that has been replaced by a youthful offender adjudication.
6 IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVI-
7 SION FIVE-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF
8 PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS
9 SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF PROTECTION. THE
10 COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE
11 ORDER OF PROTECTION. In addition to any other conditions, such an order
12 may require the defendant:
13 S 2. The opening paragraph of subdivision 5 of section 530.12 of the
14 criminal procedure law, as amended by section 2 of chapter 9 of the laws
15 of 2011, is amended to read as follows:
16 Upon sentencing on a conviction for any crime or violation between
17 spouses, between a parent and child, or between members of the same
18 family or household as defined in subdivision one of section 530.11 of
19 this article, the court may in addition to any other disposition,
20 including a conditional discharge or youthful offender adjudication,
21 enter an order of protection. Where a temporary order of protection was
22 issued, the court shall state on the record the reasons for issuing or
23 not issuing an order of protection. The duration of such an order shall
24 be fixed by the court and, in the case of a felony conviction, shall not
25 exceed the greater of: (i) five years from the date of such sentencing,
26 or (ii) three years from the date of the expiration of the maximum term
27 of an indeterminate sentence of imprisonment actually imposed; or in the
28 case of a conviction for a class A misdemeanor, shall not exceed three
29 years from the date of such sentencing; or in the case of a conviction
30 for any other offense, shall not exceed one year from the date of
31 sentencing. For purposes of determining the duration of an order of
32 protection entered pursuant to this subdivision, a conviction shall be
33 deemed to include a conviction that has been replaced by a youthful
34 offender adjudication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES
35 AS DEFINED IN SUBDIVISION FIVE-A OF THIS SECTION EXIST, THE COURT MAY
36 ENTER AN ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE
37 RELEVANT TERMS SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF
38 PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE
39 STATED UPON THE ORDER OF PROTECTION. In addition to any other condi-
40 tions, such an order may require the defendant:
41 S 3. Section 530.12 of the criminal procedure law is amended by adding
42 a new subdivision 5-a to read as follows:
43 5-A. FOR THE PURPOSES OF SUBDIVISION FIVE OF THIS SECTION, "AGGRAVAT-
44 ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJU-
45 RY TO THE COMPLAINANT CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS
46 INSTRUMENT AGAINST THE COMPLAINANT BY THE DEFENDANT, A HISTORY OF
47 REPEATED VIOLATIONS OF PRIOR ORDERS OF PROTECTION BY THE DEFENDANT,
48 PRIOR CONVICTIONS FOR CRIMES AGAINST THE COMPLAINANT BY THE DEFENDANT OR
49 THE EXPOSURE OF ANY FAMILY OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE
50 DEFENDANT, AND LIKE INCIDENTS, BEHAVIORS, AND OCCURRENCES WHICH THE
51 COURT DETERMINES, AFTER A HEARING, CONSTITUTE AN IMMEDIATE AND ONGOING
52 DANGER TO THE COMPLAINANT OR ANY MEMBER OF THE COMPLAINANT'S FAMILY OR
53 HOUSEHOLD. AFTER A DISPOSITIONAL HEARING IS HELD AND THE COURT FINDS BY
54 A FAIR PREPONDERANCE OF THE EVIDENCE THAT AGGRAVATING CIRCUMSTANCES
55 EXIST, THE COURT MAY ISSUE AN ORDER OF PROTECTION FOR UP TO THE LIFETIME
A. 4581 3
1 OF THE VICTIM, THE VICTIM'S FAMILY, OR MEMBERS OF THE VICTIM'S HOUSE-
2 HOLD.
3 S 4. The closing paragraph of subdivision 6 of section 530.12 of the
4 criminal procedure law, as amended by chapter 480 of the laws of 2013,
5 is amended to read as follows:
6 [Such] WHEN AN ORDER OF PROTECTION IS OF FIXED DURATION, THE order of
7 protection shall plainly state the date that such order expires, AND
8 WHERE THE ORDER IS OF LIFETIME DURATION, THE ORDER SHALL CLEARLY SO
9 STATE.
10 S 5. The opening paragraph of subdivision 4 of section 530.13 of the
11 criminal procedure law, as amended by section 3 of chapter 9 of the laws
12 of 2011, is amended to read as follows:
13 Upon sentencing on a conviction for any offense, where the court has
14 not issued an order of protection pursuant to section 530.12 of this
15 article, the court may, in addition to any other disposition, including
16 a conditional discharge or youthful offender adjudication, enter an
17 order of protection. Where a temporary order of protection was issued,
18 the court shall state on the record the reasons for issuing or not issu-
19 ing an order of protection. The duration of such an order shall be fixed
20 by the court and; (A) in the case of a felony conviction, shall not
21 exceed the greater of: (i) eight years from the date of such sentencing,
22 or (ii) eight years from the date of the expiration of the maximum term
23 of an indeterminate or the term of a determinate sentence of imprison-
24 ment actually imposed; or (B) in the case of a conviction for a class A
25 misdemeanor, shall not exceed the greater of: (i) five years from the
26 date of such sentencing, or (ii) five years from the date of the expira-
27 tion of the maximum term of a definite or intermittent term actually
28 imposed; or (C) in the case of a conviction for any other offense, shall
29 not exceed the greater of: (i) two years from the date of sentencing, or
30 (ii) two years from the date of the expiration of the maximum term of a
31 definite or intermittent term actually imposed. For purposes of deter-
32 mining the duration of an order of protection entered pursuant to this
33 subdivision, a conviction shall be deemed to include a conviction that
34 has been replaced by a youthful offender adjudication. IF THE COURT
35 FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVISION FOUR-A OF
36 THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF PROTECTION FOR A
37 FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR
38 MAY ENTER UP TO A LIFETIME ORDER OF PROTECTION. THE COURT'S FINDING OF
39 AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE ORDER OF PROTECTION.
40 In addition to any other conditions such an order may require that the
41 defendant:
42 S 6. The opening paragraph of subdivision 4 of section 530.13 of the
43 criminal procedure law, as amended by section 4 of chapter 9 of the laws
44 of 2011, is amended to read as follows:
45 Upon sentencing on a conviction for any offense, where the court has
46 not issued an order of protection pursuant to section 530.12 of this
47 article, the court may, in addition to any other disposition, including
48 a conditional discharge or youthful offender adjudication, enter an
49 order of protection. Where a temporary order of protection was issued,
50 the court shall state on the record the reasons for issuing or not issu-
51 ing an order of protection. The duration of such an order shall be fixed
52 by the court and, in the case of a felony conviction, shall not exceed
53 the greater of: (i) five years from the date of such sentencing, or (ii)
54 three years from the date of the expiration of the maximum term of an
55 indeterminate sentence of imprisonment actually imposed; or in the case
56 of a conviction for a class A misdemeanor, shall not exceed three years
A. 4581 4
1 from the date of such sentencing; or in the case of a conviction for any
2 other offense, shall not exceed one year from the date of sentencing.
3 For purposes of determining the duration of an order of protection
4 entered pursuant to this subdivision, a conviction shall be deemed to
5 include a conviction that has been replaced by a youthful offender adju-
6 dication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED
7 IN SUBDIVISION FOUR-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN
8 ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT
9 TERMS SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF
10 PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE
11 STATED UPON THE ORDER OF PROTECTION. In addition to any other conditions
12 such an order may require that the defendant:
13 S 7. Section 530.13 of the criminal procedure law is amended by adding
14 a new subdivision 4-a to read as follows:
15 4-A. FOR THE PURPOSES OF SUBDIVISION FOUR OF THIS SECTION, "AGGRAVAT-
16 ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
17 TO THE VICTIM CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS INSTRUMENT
18 AGAINST THE VICTIM BY THE DEFENDANT, A HISTORY OF REPEATED VIOLATIONS OF
19 PRIOR ORDERS OF PROTECTION BY THE DEFENDANT, PRIOR CONVICTIONS FOR
20 CRIMES AGAINST THE VICTIM BY THE DEFENDANT OR THE EXPOSURE OF ANY FAMILY
21 OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE DEFENDANT, AND LIKE INCI-
22 DENTS, BEHAVIORS, AND OCCURRENCES WHICH THE COURT DETERMINES, AFTER A
23 HEARING, CONSTITUTE AN IMMEDIATE AND ONGOING DANGER TO THE VICTIM, OR
24 ANY MEMBER OF THE VICTIM'S FAMILY OR HOUSEHOLD. AFTER A DISPOSITIONAL
25 HEARING IS HELD AND THE COURT FINDS BY A FAIR PREPONDERANCE OF THE
26 EVIDENCE THAT AGGRAVATING CIRCUMSTANCES EXIST, THE COURT MAY ISSUE AN
27 ORDER OF PROTECTION FOR UP TO THE LIFETIME OF THE VICTIM, THE VICTIM'S
28 FAMILY, OR MEMBERS OF THE VICTIM'S HOUSEHOLD.
29 S 8. The opening paragraph of section 842 of the family court act, as
30 amended by chapter 526 of the laws of 2013, is amended to read as
31 follows:
32 An order of protection under section eight hundred forty-one of this
33 part shall set forth reasonable conditions of behavior to be observed
34 for a period not in excess of two years by the petitioner or respondent
35 or [for a period not in excess of five years] UP TO A LIFETIME ORDER OF
36 PROTECTION upon (i) a finding by the court on the record of the exist-
37 ence of aggravating circumstances as defined in paragraph (vii) of
38 subdivision (a) of section eight hundred twenty-seven of this article or
39 (ii) a finding by the court on the record that the conduct alleged in
40 the petition is in violation of a valid order of protection. Any finding
41 of aggravating circumstances pursuant to this section shall be stated on
42 the record and upon the order of protection. The court may also, upon
43 motion, extend the order of protection for a reasonable period of time
44 upon a showing of good cause or consent of the parties. The fact that
45 abuse has not occurred during the pendency of an order shall not, in
46 itself, constitute sufficient ground for denying or failing to extend
47 the order. The court must articulate a basis for its decision on the
48 record. The duration of any temporary order shall not by itself be a
49 factor in determining the length or issuance of any final order. Any
50 order of protection issued pursuant to this section shall specify if an
51 order of probation is in effect. Any order of protection issued pursuant
52 to this section may require the petitioner or the respondent:
53 S 9. This act shall take effect immediately provided that the amend-
54 ments to the opening paragraph of subdivision 5 of section 530.12 and
55 the opening paragraph of subdivision 4 of section 530.13 of the criminal
56 procedure law made by sections one and five of this act respectively,
A. 4581 5
1 shall be subject to the expiration and reversion of such paragraphs,
2 when upon such date the provisions of sections two and six of this act
3 shall take effect.
