STATE OF NEW YORK ________________________________________________________________________ 8221 2017-2018 Regular Sessions IN ASSEMBLY June 2, 2017 ___________ Introduced by M. of A. GANTT -- read once and referred to the Committee on Codes AN ACT to amend the criminal procedure law, in relation to issuing restraining orders for certain offenders The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The criminal procedure law is amended by adding a new title 2 V to read as follows: 3 TITLE V 4 RESTRAINING ORDERS WITH RESPECT TO DEFENDANTS IN 5 CRIMINAL ACTIONS AND PROCEEDINGS 6 ARTICLE 735 7 RESTRAINING ORDER FROM LOCATION; DRUG RELATED OFFENSES 8 Section 735.00 Restraining order - use of a child to commit a controlled 9 substance offense. 10 735.10 Restraining order - criminal sale of a controlled 11 substance in the fourth degree. 12 735.15 Restraining order - criminal sale of a controlled 13 substance to a child. 14 735.20 Restraining order - unlawful manufacture of methampheta- 15 mine in the third degree. 16 735.25 Restraining order - unlawful manufacture of methampheta- 17 mine in the second degree. 18 735.30 Restraining order - unlawful manufacture of methampheta- 19 mine in the first degree. 20 735.35 Restraining order - operating as a major trafficker. 21 735.40 Restraining order - exceptions, content, distribution, 22 modifications. 23 735.45 Certification of offense location. 24 735.50 Discretion to not seek restraining order. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11972-01-7A. 8221 2 1 § 735.00 Restraining order - use of a child to commit a controlled 2 substance offense. 3 1. When a person is charged with a criminal offense as defined in 4 section 220.28 of the penal law and the person is released from custody 5 before trial on bail or personal recognizance, the court, upon applica- 6 tion of a law enforcement officer or prosecuting attorney and except as 7 provided in subdivision one of section 735.40 of this article, shall as 8 a condition of release issue an order prohibiting the person from enter- 9 ing any place where the crime occurred, including a buffer zone 10 surrounding the place or modifications as provided by subdivision two of 11 section 735.40 of this article. 12 2. When a person is charged with a criminal offense as defined in 13 section 220.28 of the penal law on a summons, the court, upon applica- 14 tion of a law enforcement officer or prosecuting attorney and except as 15 provided in subdivision one of section 735.40 of this article, shall, at 16 the time of the defendant's first appearance, issue an order prohibiting 17 the person from entering any place where the crime occurred, including a 18 buffer zone surrounding the place or modifications as provided by subdi- 19 vision two of section 735.40 of this article. 20 3. When a person is charged with a criminal offense as defined in 21 section 220.28 of the penal law on a juvenile delinquency complaint and 22 is released from custody at a detention hearing, the court, upon appli- 23 cation of a law enforcement officer or prosecuting attorney and except 24 as provided in subdivision one of section 735.40 of this article, shall 25 issue an order prohibiting the person from entering any place where the 26 crime occurred, including a buffer zone surrounding the place or modifi- 27 cations as provided by subdivision two of section 735.40 of this arti- 28 cle. 29 4. When a person is charged with a criminal offense as defined in 30 section 220.28 of the penal law on a juvenile delinquency complaint and 31 is released without being detained, the law enforcement officer or pros- 32 ecuting attorney shall prepare an application for filing on the next 33 day. The law enforcement officer releasing the juvenile shall serve the 34 juvenile and his or her parent or guardian with written notice that an 35 order shall be issued by the family court on the next court day prohib- 36 iting the juvenile from entering any place where the crime occurred 37 including a buffer zone surrounding the place or modifications as 38 provided by subdivision two of section 735.40 of this article. The court 39 shall issue such order on the first court day following the release of 40 the juvenile. If the restraints contained in the court order differ from 41 the restraints contained in the notice, the order shall not be effective 42 until the third court day following the issuance of the order. The juve- 43 nile may apply to the court to stay or modify the order on the grounds 44 set forth in subdivision one of section 735.40 of this article. 45 § 735.10 Restraining order - criminal sale of a controlled substance in 46 the fourth degree. 47 1. When a person is charged with a criminal offense as defined in 48 section 220.34 of the penal law and the person is released from custody 49 before trial on bail or personal recognizance, the court, upon applica- 50 tion of a law enforcement officer or prosecuting district attorney and 51 except as provided in subdivision one of section 735.40 of this article, 52 shall as a condition of release issue an order prohibiting the person 53 from entering any place where the crime occurred, including a buffer 54 zone surrounding the place or modifications as provided by subdivision 55 two of section 735.40 of this article.A. 8221 3 1 2. When a person is charged with a criminal offense as defined in 2 section 220.34 of the penal law on a summons, the court, upon applica- 3 tion of a law enforcement officer or prosecuting attorney and except as 4 provided in subdivision one of section 735.40 of this article, shall, at 5 the time of the defendant's first appearance, issue an order prohibiting 6 the person from entering any place where the crime occurred, including a 7 buffer zone surrounding the place or modifications as provided by subdi- 8 vision two of section 735.40 of this article. 9 3. When a person is charged with a criminal offense as defined in 10 section 220.34 of the penal law on a juvenile delinquency complaint and 11 is released from custody at a detention hearing, the court, upon appli- 12 cation of a law enforcement officer or prosecuting attorney and except 13 as provided in subdivision one of section 735.40 of this article, shall 14 issue an order prohibiting the person from entering any place where the 15 crime occurred, including a buffer zone surrounding the place or modifi- 16 cations as provided by subdivision two of section 735.40 of this arti- 17 cle. 18 4. When a person is charged with a criminal offense as defined in 19 section 220.34 of the penal law on a juvenile delinquency complaint and 20 is released without being detained, the law enforcement officer or pros- 21 ecuting attorney shall prepare an application for filing on the next 22 day. The law enforcement officer releasing the juvenile shall serve the 23 juvenile and his parent or guardian with written notice that an order 24 shall be issued by the family court on the next court day prohibiting 25 the juvenile from entering any place where the crime occurred including 26 a buffer zone surrounding the place or modifications as provided by 27 subdivision two of section 735.40 of this article. The court shall issue 28 such order on the first court day following the release of the juvenile. 29 If the restraints contained in the court order differ from the 30 restraints contained in the notice, the order shall not be effective 31 until the third court day following the issuance of the order. The juve- 32 nile may apply to the court to stay or modify the order on the grounds 33 set forth in subdivision one of section 735.40 of this article. 34 § 735.15 Restraining order - criminal sale of a controlled substance to 35 a child. 36 1. When a person is charged with a criminal offense as defined in 37 section 220.48 of the penal law and the person is released from custody 38 before trial on bail or personal recognizance, the court, upon applica- 39 tion of a law enforcement officer or prosecuting attorney and except as 40 provided in subdivision one of section 735.40 of this article, shall as 41 a condition of release issue an order prohibiting the person from enter- 42 ing any place where the crime occurred, including a buffer zone 43 surrounding the place or modifications as provided by subdivision two of 44 section 735.40 of this article. 45 2. When a person is charged with a criminal offense as defined in 46 section 220.48 of the penal law on a summons, the court, upon applica- 47 tion of a law enforcement officer or prosecuting attorney and except as 48 provided in subdivision one of section 735.40 of this article, shall, at 49 the time of the defendant's first appearance, issue an order prohibiting 50 the person from entering any place where the crime occurred, including a 51 buffer zone surrounding the place or modifications as provided by subdi- 52 vision two of section 735.40 of this article. 53 3. When a person is charged with a criminal offense as defined in 54 section 220.48 of the penal law on a juvenile delinquency complaint and 55 is released from custody at a detention hearing, the court, upon appli- 56 cation of a law enforcement officer or prosecuting attorney and exceptA. 8221 4 1 as provided in subdivision one of section 735.40 of this article, shall 2 issue an order prohibiting the person from entering any place where the 3 crime occurred, including a buffer zone surrounding the place or modifi- 4 cations as provided by subdivision two of section 735.40 of this arti- 5 cle. 6 4. When a person is charged with a criminal offense as defined in 7 section 220.48 of the penal law on a juvenile delinquency complaint and 8 is released without being detained, the law enforcement officer or pros- 9 ecuting attorney shall prepare an application for filing on the next 10 day. The law enforcement officer releasing the juvenile shall serve the 11 juvenile and his or her parent or guardian with written notice that an 12 order shall be issued by the family court on the next court day prohib- 13 iting the juvenile from entering any place where the crime occurred 14 including a buffer zone surrounding the place or modifications as 15 provided by subdivision two of section 735.40 of this article. The court 16 shall issue such order on the first court day following the release of 17 the juvenile. If the restraints contained in the court order differ from 18 the restraints contained in the notice, the order shall not be effective 19 until the third court day following the issuance of the order. The juve- 20 nile may apply to the court to stay or modify the order on the grounds 21 set forth in subdivision one of section 735.40 of this article. 22 § 735.20 Restraining order - unlawful manufacture of methamphetamine in 23 the third degree. 24 1. When a person is charged with a criminal offense as defined in 25 section 220.73 of the penal law and the person is released from custody 26 before trial on bail or personal recognizance, the court, upon applica- 27 tion of a law enforcement officer or prosecuting attorney and except as 28 provided in subdivision one of section 735.40 of this article, shall as 29 a condition of release issue an order prohibiting the person from enter- 30 ing any place where the crime occurred, including a buffer zone 31 surrounding the place or modifications as provided by subdivision two of 32 section 735.40 of this article. 33 2. When a person is charged with a criminal offense as defined in 34 section 220.73 of the penal law on a summons, the court, upon applica- 35 tion of a law enforcement officer or prosecuting attorney and except as 36 provided in subdivision one of section 735.40 of this article, shall, at 37 the time of the defendant's first appearance, issue an order prohibiting 38 the person from entering any place where the crime occurred, including a 39 buffer zone surrounding the place or modifications as provided by subdi- 40 vision two of section 735.40 of this article. 41 3. When a person is charged with a criminal offense as defined in 42 section 220.73 of the penal law on a juvenile delinquency complaint and 43 is released from custody at a detention hearing, the court, upon appli- 44 cation of a law enforcement officer or prosecuting attorney and except 45 as provided in subdivision one of section 735.40 of this article, shall 46 issue an order prohibiting the person from entering any place where the 47 crime occurred, including a buffer zone surrounding the place or modifi- 48 cations as provided by subdivision two of section 735.40 of this arti- 49 cle. 50 4. When a person is charged with a criminal offense as defined in 51 section 220.73 of the penal law on a juvenile delinquency complaint and 52 is released without being detained, the law enforcement officer or pros- 53 ecuting attorney shall prepare an application for filing on the next 54 day. The law enforcement officer releasing the juvenile shall serve the 55 juvenile and his or her parent or guardian with written notice that an 56 order shall be issued by the family court on the next court day prohib-A. 8221 5 1 iting the juvenile from entering any place where the crime occurred 2 including a buffer zone surrounding the place or modifications as 3 provided by subdivision two of section 735.40 of this article. The court 4 shall issue such order on the first court day following the release of 5 the juvenile. If the restraints contained in the court order differ from 6 the restraints contained in the notice, the order shall not be effective 7 until the third court day following the issuance of the order. The juve- 8 nile may apply to the court to stay or modify the order on the grounds 9 set forth in subdivision one of section 735.40 of this article. 10 § 735.25 Restraining order - unlawful manufacture of methamphetamine in 11 the second degree. 12 1. When a person is charged with a criminal offense as defined in 13 section 220.74 of the penal law and the person is released from custody 14 before trial on bail or personal recognizance, the court, upon applica- 15 tion of a law enforcement officer or prosecuting attorney and except as 16 provided in subdivision one of section 735.40 of this article, shall as 17 a condition of release issue an order prohibiting the person from enter- 18 ing any place where the crime occurred, including a buffer zone 19 surrounding the place or modifications as provided by subdivision two of 20 section 735.40 of this article. 21 2. When a person is charged with a criminal offense as defined in 22 section 220.74 of the penal law on a summons, the court, upon applica- 23 tion of a law enforcement officer or prosecuting attorney and except as 24 provided in subdivision one of section 735.40 of this article, shall, at 25 the time of the defendant's first appearance, issue an order prohibiting 26 the person from entering any place where the crime occurred, including a 27 buffer zone surrounding the place or modifications as provided by subdi- 28 vision two of section 735.40 of this article. 29 3. When a person is charged with a criminal offense as defined in 30 section 220.74 of the penal law on a juvenile delinquency complaint and 31 is released from custody at a detention hearing, the court, upon appli- 32 cation of a law enforcement officer or prosecuting attorney and except 33 as provided in subdivision one of section 735.40 of this article, shall 34 issue an order prohibiting the person from entering any place where the 35 crime occurred, including a buffer zone surrounding the place or modifi- 36 cations as provided by subdivision two of section 735.40 of this arti- 37 cle. 38 4. When a person is charged with a criminal offense as defined in 39 section 220.74 of the penal law on a juvenile delinquency complaint and 40 is released without being detained, the law enforcement officer or pros- 41 ecuting attorney shall prepare an application for filing on the next 42 day. The law enforcement officer releasing the juvenile shall serve the 43 juvenile and his or her parent or guardian with written notice that an 44 order shall be issued by the family court on the next court day prohib- 45 iting the juvenile from entering any place where the crime occurred 46 including a buffer zone surrounding the place or modifications as 47 provided by subdivision two of section 735.40 of this article. The court 48 shall issue such order on the first court day following the release of 49 the juvenile. If the restraints contained in the court order differ from 50 the restraints contained in the notice, the order shall not be effective 51 until the third court day following the issuance of the order. The juve- 52 nile may apply to the court to stay or modify the order on the grounds 53 set forth in subdivision one of section 735.40 of this article. 54 § 735.30 Restraining order - unlawful manufacture of methamphetamine in 55 the first degree.A. 8221 6 1 1. When a person is charged with a criminal offense as defined in 2 section 220.75 of the penal law and the person is released from custody 3 before trial on bail or personal recognizance, the court, upon applica- 4 tion of a law enforcement officer or prosecuting attorney and except as 5 provided in subdivision one of section 735.40 of this article, shall as 6 a condition of release issue an order prohibiting the person from enter- 7 ing any place where the crime occurred, including a buffer zone 8 surrounding the place or modifications as provided by subdivision two of 9 section 735.40 of this article. 10 2. When a person is charged with a criminal offense as defined in 11 section 220.75 of the penal law on a summons, the court, upon applica- 12 tion of a law enforcement officer or prosecuting attorney and except as 13 provided in subdivision one of section 735.40 of this article, shall, at 14 the time of the defendant's first appearance, issue an order prohibiting 15 the person from entering any place where the crime occurred, including a 16 buffer zone surrounding the place or modifications as provided by subdi- 17 vision two of section 735.40 of this article. 18 3. When a person is charged with a criminal offense as defined in 19 section 220.75 of the penal law on a juvenile delinquency complaint and 20 is released from custody at a detention hearing, the court, upon appli- 21 cation of a law enforcement officer or prosecuting attorney and except 22 as provided in subdivision one of section 735.40 of this article, shall 23 issue an order prohibiting the person from entering any place where the 24 crime occurred, including a buffer zone surrounding the place or modifi- 25 cations as provided by subdivision two of section 735.40 of this arti- 26 cle. 27 4. When a person is charged with a criminal offense as defined in 28 section 220.75 of the penal law on a juvenile delinquency complaint and 29 is released without being detained, the law enforcement officer or pros- 30 ecuting attorney shall prepare an application for filing on the next 31 day. The law enforcement officer releasing the juvenile shall serve the 32 juvenile and his or her parent or guardian with written notice that an 33 order shall be issued by the family court on the next court day prohib- 34 iting the juvenile from entering any place where the crime occurred 35 including a buffer zone surrounding the place or modifications as 36 provided by subdivision two of section 735.40 of this article. The court 37 shall issue such order on the first court day following the release of 38 the juvenile. If the restraints contained in the court order differ from 39 the restraints contained in the notice, the order shall not be effective 40 until the third court day following the issuance of the order. The juve- 41 nile may apply to the court to stay or modify the order on the grounds 42 set forth in subdivision one of section 735.40 of this article. 43 § 735.35 Restraining order - operating as a major trafficker. 44 1. When a person is charged with a criminal offense as defined in 45 section 220.77 of the penal law and the person is released from custody 46 before trial on bail or personal recognizance, the court, upon applica- 47 tion of a law enforcement officer or prosecuting attorney and except as 48 provided in subdivision one of section 735.40 of this article, shall as 49 a condition of release issue an order prohibiting the person from enter- 50 ing any place where the crime occurred, including a buffer zone 51 surrounding the place or modifications as provided by subdivision two of 52 section 735.40 of this article. 53 2. When a person is charged with a criminal offense as defined in 54 section 220.77 of the penal law on a summons, the court, upon applica- 55 tion of a law enforcement officer or prosecuting attorney and except as 56 provided in subdivision one of section 735.40, shall, at the time of theA. 8221 7 1 defendant's first appearance, issue an order prohibiting the person from 2 entering any place where the crime occurred, including a buffer zone 3 surrounding the place or modifications as provided by subdivision two of 4 section 735.40 of this article. 5 3. When a person is charged with a criminal offense as defined in 6 section 220.77 of the penal law on a juvenile delinquency complaint and 7 is released from custody at a detention hearing, the court, upon appli- 8 cation of a law enforcement officer or prosecuting attorney and except 9 as provided in subdivision one of section 735.40, shall issue an order 10 prohibiting the person from entering any place where the crime occurred, 11 including a buffer zone surrounding the place or modifications as 12 provided by subdivision two of section 735.40 of this article. 13 4. When a person is charged with a criminal offense as defined in 14 section 220.77 of the penal law on a juvenile delinquency complaint and 15 is released without being detained, the law enforcement officer or pros- 16 ecuting attorney shall prepare an application for filing on the next 17 day. The law enforcement officer releasing the juvenile shall serve the 18 juvenile and his or her parent or guardian with written notice that an 19 order shall be issued by the family court on the next court day prohib- 20 iting the juvenile from entering any place where the crime occurred 21 including a buffer zone surrounding the place or modifications as 22 provided by subdivision two of section 735.40 of this article. The court 23 shall issue such order on the first court day following the release of 24 the juvenile. If the restraints contained in the court order differ from 25 the restraints contained in the notice, the order shall not be effective 26 until the third court day following the issuance of the order. The juve- 27 nile may apply to the court to stay or modify the order on the grounds 28 set forth in subdivision one of section 735.40 of this article. 29 § 735.40 Restraining order - exceptions, content, distribution, modifi- 30 cations. 31 1. The court may forego issuing a restraining order for which applica- 32 tion has been made only if the defendant establishes by clear and 33 convincing evidence that: (a) the defendant lawfully resides at or has 34 legitimate business on or near the place, or otherwise legitimately 35 needs to enter the place. In such event, the court shall not issue an 36 order pursuant to this article unless the court is clearly convinced 37 that the need to bar the person from the place in order to protect the 38 public safety and the rights, safety and health of the residents and 39 persons working in the place outweighs the person's interest in return- 40 ing to the place. If the balance of the interest of the person and the 41 public so warrants, the court may issue an order imposing conditions 42 upon the person's entry at, upon or near the place; or 43 (b) the issuance of an order would cause undue hardship to innocent 44 persons and would constitute a serious injustice which overrides the 45 need to protect the rights, safety and health of persons residing in or 46 having business in the place. 47 2. A restraining order issued pursuant to this article shall describe 48 the place from which the person has been barred and any conditions upon 49 the person's entry into the place, with sufficient specificity to enable 50 the person to guide his conduct accordingly and to enable a law enforce- 51 ment officer to enforce the order. The order shall also prohibit the 52 person from entering an area of up to five hundred feet surrounding the 53 place, unless the court rules that a different buffer zone would better 54 effectuate the purposes of this article. In the discretion of the court, 55 the order may contain modifications to permit the person to enter the 56 area during specified times for specified purposes such as attendingA. 8221 8 1 school during regular school hours. When appropriate, the court may 2 append to the order a map depicting the place. The person shall be given 3 a copy of the restraining order and any appended map and shall acknowl- 4 edge in writing the receipt thereof. 5 3. (a) The court shall provide notice of the restraining order to the 6 local law enforcement agency where the arrest occurred and to the county 7 district attorney. 8 (b) Prior to the person's conviction or adjudication of delinquency 9 for a criminal offense, the local law enforcement agency may post a copy 10 of any orders issued pursuant to this article, or an equivalent notice 11 containing the terms of the order, upon one or more of the principal 12 entrances of the place or in any other conspicuous location. Such post- 13 ing shall be for the purpose of informing the public, and the failure to 14 post a copy of the order shall in no way excuse any violation of the 15 order. 16 (c) Prior to the person's conviction or adjudication of delinquency 17 for a criminal offense, any law enforcement agency may publish a copy of 18 any orders issued pursuant to this article, or an equivalent notice 19 containing the terms of the order, in a newspaper circulating in the 20 area of the restraining order. Such publication shall be for the purpose 21 of informing the public, and the failure to publish a copy of the order 22 shall in no way excuse any violation of the order. 23 (d) Prior to the person's conviction or adjudication of delinquency 24 for a criminal offense, any law enforcement agency may distribute copies 25 of any orders issued pursuant to this article, or an equivalent notice 26 containing the terms of the order, to residents or businesses located 27 within the area delineated in the order or, in the case of a school or 28 any government-owned property, to the appropriate administrator, or to 29 any tenant association representing the residents of the affected area. 30 Such publication shall be for the purpose of informing the public, and 31 the failure to publish a copy of the order shall in no way excuse any 32 violation of the order. 33 4. When a person is convicted of or adjudicated delinquent for any 34 criminal offense described in this article, the court, upon application 35 of a law enforcement officer or prosecuting attorney and except as 36 provided in subdivision one of this section, shall, by separate order or 37 within the judgment of conviction, issue an order prohibiting the person 38 from entering any place where the crime occurred, including a buffer 39 zone surrounding the place or modifications as provided by subdivision 40 two of this section. Upon the person's conviction or adjudication of 41 delinquency for a criminal offense described in this article, a law 42 enforcement agency, in addition to posting, publishing and distributing 43 the order or an equivalent notice pursuant to paragraphs (b), (c), and 44 (d) of subdivision three of this section, may also post, publish and 45 distribute a photograph of the person. 46 5. When a juvenile has been adjudicated delinquent for an act which, 47 if committed by an adult, would be a criminal offense, in addition to an 48 order required by subdivision four of this section or any other disposi- 49 tion authorized by law, the court may order the juvenile and any parent, 50 guardian or any family member over whom the court has jurisdiction to 51 take such actions or obey such restraints as may be necessary to facili- 52 tate the rehabilitation of the juvenile or to protect public safety or 53 to safeguard or enforce the rights of residents of the place. The court 54 may commit the juvenile to the care of the office of children and family 55 services until such time as the juvenile reaches the age of eighteen orA. 8221 9 1 until the order of removal and restraint expires, whichever first 2 occurs, or to such alternative residential placement as is practicable. 3 6. An order issued pursuant to sections 735.00, 735.10, 735.15, 4 735.20, 735.25, 735.30, and 735.35 of this article shall remain in 5 effect until the case has been adjudicated or dismissed, or for not less 6 than two years, whichever is less. An order issued pursuant to subdivi- 7 sion four of this section shall remain in effect for such period of, 8 time as shall be fixed by the court but not longer than the maximum 9 terms of imprisonment or incarceration allowed by law for the underlying 10 offense or offenses. When the court issues a restraining order pursuant 11 to subdivision four of this section and the person is also sentenced to 12 any form of probationary supervision, the court shall make continuing 13 compliance with the order an express condition of probation. When the 14 person has been sentenced to a term of incarceration, continuing compli- 15 ance with the terms and conditions of the order shall be made an express 16 condition of the person's release from confinement or incarceration on 17 parole. At the time of sentencing or, in the case of a juvenile, at the 18 time of disposition of the juvenile case, the court shall advise the 19 defendant that the restraining order shall include a fixed time period 20 in accordance with this subdivision and shall include that provision in 21 the judgment of conviction, dispositional order, separate order or order 22 vacating an existing restraining order, to the law enforcement agency 23 that made the arrest and to the county district attorney. 24 7. All applications to stay or modify an order issued pursuant to this 25 section shall be made in supreme court. The court shall immediately 26 notify the county district attorney in writing whenever an application 27 is made to stay or modify an order issued pursuant to this section. If 28 the court does not issue a restraining order, the sentence imposed by 29 the court for a criminal offense as defined in this article shall not 30 become final for ten days in order to permit the appeal of the court's 31 findings by the prosecution. 32 8. Nothing in this article shall be construed in any way to limit the 33 authority of the court to take such other actions or to issue such 34 orders as may be necessary to protect the public safety or to safeguard 35 or enforce the rights of others with respect to the place. 36 9. Notwithstanding any other provision of this article, the court may 37 permit the person to return to the place to obtain personal belongings 38 and effects and, by court order, may restrict the time and duration and 39 provide for police supervision of such visit. 40 § 735.45 Certification of offense location. 41 The court shall issue a restraining order pursuant to this article 42 only upon request by a law enforcement officer or prosecuting attorney 43 and submission of a certification describing the location of the 44 offense. 45 § 735.50 Discretion to not seek restraining order. 46 A law enforcement or prosecuting attorney shall have discretion to not 47 seek a restraining order if the defendant is charged with an offense 48 resulting from the stop of a motor vehicle or if the defendant was using 49 public transportation. 50 ARTICLE 740 51 RESTRAINING ORDER FROM LOCATION; CERTAIN CRIMES 52 Section 740.00 Restraining order - criminal possession of a weapon in 53 the third degree. 54 740.10 Restraining order -- exceptions, content, distribution, 55 modifications. 56 740.15 Certification of offense location.A. 8221 10 1 740.20 Discretion to not seek restraining order. 2 § 740.00 Restraining order - criminal possession of a weapon in the 3 third degree. 4 1. When a person is charged with a criminal offense as defined in 5 subdivision seven of section 265.02 of the penal law and the person is 6 released from custody before trial on bail or personal recognizance, the 7 court, upon application of a law enforcement officer or prosecuting 8 attorney and except as provided in subdivision one of section 740.10 of 9 this article, shall as a condition of release issue an order prohibiting 10 the person from entering any place where the crime occurred, including a 11 buffer zone surrounding the place or modifications as provided by subdi- 12 vision two of section 740.10 of this article. 13 2. When a person is charged with a criminal offense as defined in 14 subdivision seven of section 265.02 of the penal law on a summons, the 15 court, upon application of a law enforcement officer or prosecuting 16 attorney and except as provided in subdivision one of section 740.10 of 17 this article, shall, at the time of the defendant's first appearance, 18 issue an order prohibiting the person from entering any place where the 19 crime occurred, including a buffer zone surrounding the place or modifi- 20 cations as provided by subdivision two of section 740.10 of this arti- 21 cle. 22 3. When a person is charged with a criminal offense as defined in 23 subdivision seven of section 265.02 of the penal law on a juvenile 24 delinquency complaint and is released from custody at a detention hear- 25 ing, the court, upon application of a law enforcement officer or prose- 26 cuting attorney and except as provided in subdivision one of section 27 740.10 of this article, shall issue an order prohibiting the person from 28 entering any place where the crime occurred, including a buffer zone 29 surrounding the place or modifications as provided by subdivision two of 30 section 740.10 of this article. 31 4. When a person is charged with a criminal offense as defined in 32 subdivision seven of section 265.02 of the penal law on a juvenile 33 delinquency complaint and is released without being detained, the law 34 enforcement officer or prosecuting attorney shall prepare an application 35 for filing on the next day. The law enforcement officer releasing the 36 juvenile shall serve the juvenile and his or her parent or guardian with 37 written notice that an order shall be issued by the family court on the 38 next court day prohibiting the juvenile from entering any place where 39 the crime occurred including a buffer zone surrounding the place or 40 modifications as provided by subdivision two of section 740.10 of this 41 article. The court shall issue such order on the first court day follow- 42 ing the release of the juvenile. If the restraints contained in the 43 court order differ from the restraints contained in the notice, the 44 order shall not be effective until the third court day following the 45 issuance of the order. The juvenile may apply to the court to stay or 46 modify the order on the grounds set forth in subdivision one of section 47 740.10 of this article. 48 § 740.10 Restraining order -- exceptions, content, distribution, modifi- 49 cations. 50 1. The court may forego issuing a restraining order for which applica- 51 tion has been made only if the defendant establishes by clear and 52 convincing evidence that: (a) the defendant lawfully resides at or has 53 legitimate business on or near the place, or otherwise legitimately 54 needs to enter the place. In such an event, the court shall not issue an 55 order pursuant to this article unless the court is clearly convinced 56 that the need to bar the person from the place in order to protect theA. 8221 11 1 public safety and the rights, safety and health of the residents and 2 persons working in the place outweighs the person's interest in return- 3 ing to the place. If the balance of the interest of the person and the 4 public so warrants, the court may issue an order imposing conditions 5 upon the person's entry at, upon or near the place; or 6 (b) the issuance of an order would cause undue hardship to innocent 7 persons and would constitute a serious injustice which overrides the 8 need to protect the rights, safety and health of persons residing in or 9 having business in the place. 10 2. A restraining order issued pursuant to this article shall describe 11 the place from which the person has been barred and any conditions upon 12 the person's entry into the place, with sufficient specificity to enable 13 the person to guide his conduct accordingly and to enable a law enforce- 14 ment officer to enforce the order. The order shall also prohibit the 15 person from entering an area of up to five hundred feet surrounding the 16 place, unless the court rules that a different buffer zone would better 17 effectuate the purposes of this act. In the discretion of the court, the 18 order may contain modifications to permit the person to enter the area 19 during specified times for specified purposes such as attending school 20 during regular school hours. When appropriate, the court may append to 21 the order a map depicting the place. The person shall be given a copy of 22 the restraining order and any appended map and shall acknowledge in 23 writing the receipt thereof. 24 3. (a) The court shall provide notice of the restraining order to the 25 local law enforcement agency where the arrest occurred and to the county 26 district attorney. 27 (b) Prior to the person's conviction or adjudication of delinquency 28 for a criminal offense, the local law enforcement agency may post a copy 29 of any orders issued pursuant to this article, or an equivalent notice 30 containing the terms of the order, upon one or more of the principal 31 entrances of the place or in any other conspicuous location. Such post- 32 ing shall be for the purpose of informing the public, and the failure to 33 post a copy of the order shall in no way excuse any violation of the 34 order. 35 (c) Prior to the person's conviction or adjudication of delinquency 36 for a criminal offense, any law enforcement agency may publish a copy of 37 any orders issued pursuant to this article, or an equivalent notice 38 containing the terms of the order, in a newspaper circulating in the 39 area of the restraining order. Such publication shall be for the purpose 40 of informing the public, and the failure to publish a copy of the order 41 shall in no way excuse any violation of the order. 42 (d) Prior to the person's conviction or adjudication of delinquency 43 for a criminal offense, any law enforcement agency may distribute copies 44 of any orders issued pursuant to this article, or an equivalent notice 45 containing the terms of the order, to residents or businesses located 46 within the area delineated in the order or, in the case of a school or 47 any government-owned property, to the appropriate administrator, or to 48 any tenant association representing the residents of the affected area. 49 Such publication shall be for the purpose of informing the public, and 50 the failure to publish a copy of the order shall in no way excuse any 51 violation of the order. 52 4. When a person is convicted of or adjudicated delinquent for any 53 criminal offense described in this article, the court, upon application 54 of a law enforcement officer or prosecuting attorney and except as 55 provided in subdivision one of this section, shall, by separate order or 56 within the judgment of conviction, issue an order prohibiting the personA. 8221 12 1 from entering any place where the crime occurred, including a buffer 2 zone surrounding the place or modifications as provided by subdivision 3 two of this section. Upon the person's conviction or adjudication of 4 delinquency for a criminal offense described in this article, a law 5 enforcement agency, in addition to posting, publishing and distributing 6 the order or an equivalent notice pursuant to paragraphs (b), (c), and 7 (d) of subdivision three of this section, may also post, publish and 8 distribute a photograph of the person. 9 5. When a juvenile has been adjudicated delinquent for an act which, 10 if committed by an adult, would be a criminal offense, in addition to an 11 order required by subdivision four of this section or any other disposi- 12 tion authorized by law, the court may order the juvenile and any parent, 13 guardian or any family member over whom the court has jurisdiction to 14 take such actions or obey such restraints as may be necessary to facili- 15 tate the rehabilitation of the juvenile or to protect public safety or 16 to safeguard or enforce the rights of residents of the place. The court 17 may commit the juvenile to the care of the office of children and family 18 services until such time as the juvenile reaches the age of eighteen or 19 until the order of removal and restraint expires, whichever first 20 occurs, or to such alternative residential placement as is practicable. 21 6. An order issued pursuant to section 740.00 of this article shall 22 remain in effect until the case has been adjudicated or dismissed, or 23 for not less than two years, whichever is less. An order issued pursuant 24 to subdivision four of this section shall remain in effect for such 25 period of time as shall be fixed by the court but not longer than the 26 maximum terms of imprisonment or incarceration allowed by law for the 27 underlying offense or offenses. When the court issues a restraining 28 order pursuant to subdivision four of this section and the person is 29 also sentenced to any form of probationary supervision, the court shall 30 make continuing compliance with the order an express condition of 31 probation. When the person has been sentenced to a term of incarcera- 32 tion, continuing compliance with the terms and conditions of the order 33 shall be made an express condition of the person's release from confine- 34 ment or incarceration on parole. At the time of sentencing or, in the 35 case of a juvenile, at the time of disposition of the juvenile case, the 36 court shall advise the defendant that the restraining order shall 37 include a fixed time period in accordance with this subdivision and 38 shall include that provision in the judgment of conviction, disposi- 39 tional order, separate order or order vacating an existing restraining 40 order, to the law enforcement agency that made the arrest and to the 41 county district attorney. 42 7. All applications to stay or modify an order issued pursuant to this 43 section shall be made in supreme court. The court shall immediately 44 notify the county district attorney in writing whenever an application 45 is made to stay or modify an order issued pursuant to this section. If 46 the court does not issue a restraining order, the sentence imposed by 47 the court for a criminal offense as defined in this article shall not 48 become final for ten days in order to permit the appeal of the court's 49 findings by the prosecution. 50 8. Nothing in this article shall be construed in any way to limit the 51 authority of the court to take such other actions or to issue such 52 orders as may be necessary to protect the public safety or to safeguard 53 or enforce the rights of others with respect to the place. 54 9. Notwithstanding any other provision of this article, the court may 55 permit the person to return to the place to obtain personal belongingsA. 8221 13 1 and effects and, by court order, may restrict the time and duration and 2 provide for police supervision of such visit. 3 § 740.15 Certification of offense location. 4 The court shall issue a restraining order pursuant to this article 5 only upon request by a law enforcement officer or prosecuting district 6 attorney and submission of a certification describing the location of 7 the offense. 8 § 740.20 Discretion to not seek restraining order. 9 A law enforcement or prosecuting district attorney shall have 10 discretion to not seek a restraining order if the defendant is charged 11 with an offense resulting from the stop of a motor vehicle or if the 12 defendant was using public transportation. 13 § 2. This act shall take effect on the ninetieth day after it shall 14 have become a law.