Bill Text: NY A10700 | 2017-2018 | General Assembly | Introduced
Bill Title: Requires mandatory jail time for violators of orders of protection.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-05-10 - referred to judiciary [A10700 Detail]
Download: New_York-2017-A10700-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 10700 IN ASSEMBLY May 10, 2018 ___________ Introduced by M. of A. MIKULIN -- read once and referred to the Commit- tee on Judiciary AN ACT to amend the domestic relations law, the family court act and the criminal procedure law, in relation to requiring mandatory prison sentences for violators 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. Paragraph h of subdivision 3 of section 240 of the domestic 2 relations law, as amended by chapter 1 of the laws of 2013, is amended 3 to read as follows: 4 h. Upon issuance of an order of protection or temporary order of 5 protection or upon a violation of such order, the court shall make a 6 determination regarding the suspension and revocation of a license to 7 carry, possess, repair or dispose of a firearm or firearms, ineligibil- 8 ity for such a license and the surrender of firearms in accordance with 9 sections eight hundred forty-two-a and eight hundred forty-six-a of the 10 family court act, as applicable. Upon issuance of an order of protection 11 pursuant to this section or upon a finding of a violation thereof, the 12 court also may direct payment of restitution in an amount not to exceed 13 ten thousand dollars in accordance with subdivision (e) of section eight 14 hundred forty-one of such act; provided, however, that in no case shall 15 an order of restitution be issued where the court determines that the 16 party against whom the order would be issued has already compensated the 17 injured party or where such compensation is incorporated in a final 18 judgment or settlement of the action. If the person so violating the 19 order has been found to have violated such order on one occasion, and 20 this violation consisted of committing a family offense as defined in 21 subdivision one of section eight hundred twelve of the family court act 22 or subdivision one of section 530.11 of the criminal procedure law, the 23 court shall commit such person to a term of imprisonment of no less than 24 five days, which may be served upon certain specified days or parts of 25 days as the court may direct. If the person so violating the order has 26 been found to have violated such order on two occasions, and this 27 violation consisted of committing a family offense as defined in subdi- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04656-04-8A. 10700 2 1 vision one of section eight hundred twelve of the family court act or 2 subdivision one of section 530.11 of the criminal procedure law, the 3 court shall commit such person to a term of imprisonment of no less than 4 fifteen days, which may be served upon certain specified days or parts 5 of days as the court may direct. If the person so violating the order 6 has been found to have violated such order on three or more occasions, 7 and this violation consisted of committing a family offense as defined 8 in subdivision one of section eight hundred twelve of the family court 9 act or subdivision one of section 530.11 of the criminal procedure law, 10 the court shall commit such person to a term of imprisonment of no less 11 than thirty days, which may be served upon certain specified days or 12 parts of days as the court may direct. 13 § 2. Subdivision 9 of section 252 of the domestic relations law, as 14 amended by chapter 1 of the laws of 2013, is amended to read as follows: 15 9. Upon issuance of an order of protection or temporary order of 16 protection or upon a violation of such order, the court shall make a 17 determination regarding the suspension and revocation of a license to 18 carry, possess, repair or dispose of a firearm or firearms, ineligibil- 19 ity for such a license and the surrender of firearms in accordance with 20 sections eight hundred forty-two-a and eight hundred forty-six-a of the 21 family court act, as applicable. Upon issuance of an order of protection 22 pursuant to this section or upon a finding of a violation thereof, the 23 court also may direct payment of restitution in an amount not to exceed 24 ten thousand dollars in accordance with subdivision (e) of section eight 25 hundred forty-one of such act; provided, however, that in no case shall 26 an order of restitution be issued where the court determines that the 27 party against whom the order would be issued has already compensated the 28 injured party or where such compensation is incorporated in a final 29 judgment or settlement of the action. If the person so violating the 30 order has been found to have violated such order on one occasion, and 31 this violation consisted of committing a family offense as defined in 32 subdivision one of section eight hundred twelve of the family court act 33 or subdivision one of section 530.11 of the criminal procedure law, the 34 court shall commit such person to a term of imprisonment of no less than 35 five days, which may be served upon certain specified days or parts of 36 days as the court may direct. If the person so violating the order has 37 been found to have violated such order on two occasions, and this 38 violation consisted of committing a family offense as defined in subdi- 39 vision one of section eight hundred twelve of the family court act or 40 subdivision one of section 530.11 of the criminal procedure law, the 41 court shall commit such person to a term of imprisonment of no less than 42 fifteen days, which may be served upon certain specified days or parts 43 of days as the court may direct. If the person so violating the order 44 has been found to have violated such order on three or more occasions, 45 and this violation consisted of committing a family offense as defined 46 in subdivision one of section eight hundred twelve of the family court 47 act or subdivision one of section 530.11 of the criminal procedure law, 48 the court shall commit such person to a term of imprisonment of no less 49 than thirty days, which may be served upon certain specified days or 50 parts of days as the court may direct. 51 § 3. Section 846-a of the family court act, as amended by chapter 1 of 52 the laws of 2013, is amended to read as follows: 53 § 846-a. Powers on failure to obey order. If a respondent is brought 54 before the court for failure to obey any lawful order issued under this 55 article or an order of protection or temporary order of protection 56 issued pursuant to this act or issued by a court of competent jurisdic-A. 10700 3 1 tion of another state, territorial or tribal jurisdiction and if, after 2 hearing, the court is satisfied by competent proof that the respondent 3 has willfully failed to obey any such order, the court may modify an 4 existing order or temporary order of protection to add reasonable condi- 5 tions of behavior to the existing order, make a new order of protection 6 in accordance with section eight hundred forty-two of this part, may 7 order the forfeiture of bail in a manner consistent with article five 8 hundred forty of the criminal procedure law if bail has been ordered 9 pursuant to this act, may order the respondent to pay the petitioner's 10 reasonable and necessary counsel fees in connection with the violation 11 petition where the court finds that the violation of its order was will- 12 ful, and may commit the respondent to jail for a term not to exceed six 13 months. If the respondent has been found by competent proof to have 14 willfully failed to obey such order of protection on one occasion, and 15 this willful failure consisted of committing a family offense as defined 16 in subdivision one of section eight hundred twelve of this article or 17 subdivision one of section 530.11 of the criminal procedure law, the 18 court shall commit such person to a term of imprisonment of no less than 19 five days. If the respondent has been found by competent proof to have 20 willfully failed to obey such order of protection on two occasions, and 21 this willful failure consisted of committing a family offense as defined 22 in subdivision one of section eight hundred twelve of this article or 23 subdivision one of section 530.11 of the criminal procedure law, the 24 court shall commit such person to a term of imprisonment of no less than 25 fifteen days. If the respondent has been found by competent proof to 26 have willfully failed to obey such order of protection on three or more 27 occasions, and this willful failure consisted of committing a family 28 offense as defined in subdivision one of section eight hundred twelve of 29 this article or subdivision one of section 530.11 of the criminal proce- 30 dure law, the court shall commit such person to a term of imprisonment 31 of no less than thirty days. Such commitment may be served upon certain 32 specified days or parts of days as the court may direct, and the court 33 may, at any time within the term of such sentence, revoke such suspen- 34 sion and commit the respondent for the remainder of the original 35 sentence, or suspend the remainder of such sentence. If the court deter- 36 mines that the willful failure to obey such order involves violent 37 behavior constituting the crimes of menacing, reckless endangerment, 38 assault or attempted assault and if such a respondent is licensed to 39 carry, possess, repair and dispose of firearms pursuant to section 40 400.00 of the penal law, the court may also immediately revoke such 41 license and may arrange for the immediate surrender pursuant to subpara- 42 graph (f) of paragraph one of subdivision a of section 265.20 and subdi- 43 vision six of section 400.05 of the penal law, and disposal of any 44 firearm such respondent owns or possesses. If the willful failure to 45 obey such order involves the infliction of physical injury as defined in 46 subdivision nine of section 10.00 of the penal law or the use or threat- 47 ened use of a deadly weapon or dangerous instrument, as those terms are 48 defined in subdivisions twelve and thirteen of section 10.00 of the 49 penal law, such revocation and immediate surrender pursuant to subpara- 50 graph (f) of paragraph one of subdivision a of section 265.20 and subdi- 51 vision six of section 400.05 of the penal law [six] and disposal of any 52 firearm owned or possessed by respondent shall be mandatory, pursuant to 53 subdivision eleven of section 400.00 of the penal law. 54 § 4. Subdivision 11 of section 530.12 of the criminal procedure law, 55 as amended by chapter 498 of the laws of 1993, the opening paragraph as 56 amended by chapter 597 of the laws of 1998, paragraph (a) as amended byA. 10700 4 1 chapter 222 of the laws of 1994 and paragraph (d) as amended by chapter 2 644 of the laws of 1996, is amended to read as follows: 3 11. If a defendant is brought before the court for failure to obey 4 any lawful order issued under this section, or an order of protection 5 issued by a court of competent jurisdiction in another state, territo- 6 rial or tribal jurisdiction, and if, after hearing, the court is satis- 7 fied by competent proof that the defendant has willfully failed to obey 8 any such order, (a) the court may: 9 [(a)] (i) revoke an order of recognizance or revoke an order of bail 10 or order forfeiture of such bail and commit the defendant to custody; or 11 [(b)] (ii) restore the case to the calendar when there has been an 12 adjournment in contemplation of dismissal and commit the defendant to 13 custody; or 14 [(c)] (iii) revoke a conditional discharge in accordance with section 15 410.70 of this chapter and impose probation supervision or impose a 16 sentence of imprisonment in accordance with the penal law based on the 17 original conviction; or 18 [(d)] (iv) revoke probation in accordance with section 410.70 of this 19 chapter and impose a sentence of imprisonment in accordance with the 20 penal law based on the original conviction. In addition, if the act 21 which constitutes the violation of the order of protection or temporary 22 order of protection is a crime or a violation the defendant may be 23 charged with and tried for that crime or violation; and 24 (b) If the court finds that the defendant has willfully failed to obey 25 such order of protection on one occasion, and this willful failure 26 consisted of committing a family offense as defined in subdivision one 27 of this section or subdivision one of section eight hundred twelve of 28 the family court act, the court shall commit such person to a term of 29 imprisonment of no less than five days, which may be served upon certain 30 specified days or parts of days as the court may direct. If the court 31 finds that the defendant has willfully failed to obey such order of 32 protection on two occasions, and this willful failure consisted of 33 committing a family offense as defined in subdivision one of this 34 section or subdivision one of section eight hundred twelve of the family 35 court act, the court shall commit such person to a term of imprisonment 36 of no less than fifteen days, which may be served upon certain specified 37 days or parts of days as the court may direct. If the court finds that 38 the defendant has willfully failed to obey such order of protection on 39 three or more occasions, and this willful failure consisted of commit- 40 ting a family offense as defined in subdivision one of this section or 41 subdivision one of section eight hundred twelve of the family court act, 42 the court shall commit such person to a term of imprisonment of no less 43 than thirty days, which may be served upon certain specified days or 44 parts of days as the court may direct. 45 § 5. Subdivision 8 of section 530.13 of the criminal procedure law, as 46 added by chapter 388 of the laws of 1984, is amended to read as follows: 47 8. If a defendant is brought before the court for failure to obey any 48 lawful order issued under this section and if, after hearing, the court 49 is satisfied by competent proof that the defendant has willfully failed 50 to obey any such order, (a) the court may: 51 [(a)] (i) revoke an order of recognizance or bail and commit the 52 defendant to custody; or 53 [(b)] (ii) restore the case to the calendar when there has been an 54 adjournment in contemplation of dismissal and commit the defendant to 55 custody or impose or increase bail pending a trial of the original crime 56 or violation; orA. 10700 5 1 [(c)] (iii) revoke a conditional discharge in accordance with section 2 410.70 of this chapter and impose probation supervision or impose a 3 sentence of imprisonment in accordance with the penal law based on the 4 original conviction; or 5 [(d)] (iv) revoke probation in accordance with section 410.70 of this 6 chapter and impose a sentence of imprisonment in accordance with the 7 penal law based on the original conviction. In addition, if the act 8 which constitutes the violation of the order of protection or temporary 9 order of protection is a crime or a violation the defendant may be 10 charged with and tried for that crime or violation; and 11 (b) If the court finds that the defendant has willfully failed to obey 12 such order of protection on one occasion, and this willful failure 13 consisted of committing a family offense as defined in subdivision one 14 of section 530.11 of this article or subdivision one of section eight 15 hundred twelve of the family court act, the court shall commit such 16 person to a term of imprisonment of no less than five days, which may be 17 served upon certain specified days or parts of days as the court may 18 direct. If the court finds that the defendant has willfully failed to 19 obey such order of protection on two occasions, and this willful failure 20 consisted of committing a family offense as defined in subdivision one 21 of section 530.11 of this article or subdivision one of section eight 22 hundred twelve of the family court act, the court shall commit such 23 person to a term of imprisonment of no less than fifteen days, which may 24 be served upon certain specified days or parts of days as the court may 25 direct. If the court finds that the defendant has willfully failed to 26 obey such order of protection on three or more occasions, and this will- 27 ful failure consisted of committing a family offense as defined in 28 subdivision one of section 530.11 of this article or subdivision one of 29 section eight hundred twelve of the family court act, the court shall 30 commit such person to a term of imprisonment of no less than thirty 31 days, which may be served upon certain specified days or parts of days 32 as the court may direct. 33 § 6. This act shall take effect on the first of November next succeed- 34 ing the date on which it shall have become a law.
