Bill Text: NY S04614 | 2017-2018 | General Assembly | Amended
Bill Title: Requires mandatory jail time for violators of orders of protection.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-01-03 - REFERRED TO CHILDREN AND FAMILIES [S04614 Detail]
Download: New_York-2017-S04614-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4614--A Cal. No. 478 2017-2018 Regular Sessions IN SENATE February 22, 2017 ___________ Introduced by Sen. HELMING -- read twice and ordered printed, and when printed to be committed to the Committee on Children and Families -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD04656-02-7S. 4614--A 2 1 or subdivision one of section 530.11 of the criminal procedure law, the 2 court shall commit such person to a term of imprisonment of no less than 3 five days, which may be served upon certain specified days or parts of 4 days as the court may direct. If the person so violating the order has 5 been found to have violated such order on two occasions, and this 6 violation consisted of committing a family offense as defined in subdi- 7 vision one of section eight hundred twelve of the family court act or 8 subdivision one of section 530.11 of the criminal procedure law, the 9 court shall commit such person to a term of imprisonment of no less than 10 fifteen days, which may be served upon certain specified days or parts 11 of days as the court may direct. If the person so violating the order 12 has been found to have violated such order on three or more occasions, 13 and this violation consisted of committing a family offense as defined 14 in subdivision one of section eight hundred twelve of the family court 15 act or subdivision one of section 530.11 of the criminal procedure law, 16 the court shall commit such person to a term of imprisonment of no less 17 than thirty days, which may be served upon certain specified days or 18 parts of days as the court may direct. 19 § 2. Subdivision 9 of section 252 of the domestic relations law, as 20 amended by chapter 1 of the laws of 2013, is amended to read as follows: 21 9. Upon issuance of an order of protection or temporary order of 22 protection or upon a violation of such order, the court shall make a 23 determination regarding the suspension and revocation of a license to 24 carry, possess, repair or dispose of a firearm or firearms, ineligibil- 25 ity for such a license and the surrender of firearms in accordance with 26 sections eight hundred forty-two-a and eight hundred forty-six-a of the 27 family court act, as applicable. Upon issuance of an order of protection 28 pursuant to this section or upon a finding of a violation thereof, the 29 court also may direct payment of restitution in an amount not to exceed 30 ten thousand dollars in accordance with subdivision (e) of section eight 31 hundred forty-one of such act; provided, however, that in no case shall 32 an order of restitution be issued where the court determines that the 33 party against whom the order would be issued has already compensated the 34 injured party or where such compensation is incorporated in a final 35 judgment or settlement of the action. If the person so violating the 36 order has been found to have violated such order on one occasion, and 37 this violation consisted of committing a family offense as defined in 38 subdivision one of section eight hundred twelve of the family court act 39 or subdivision one of section 530.11 of the criminal procedure law, the 40 court shall commit such person to a term of imprisonment of no less than 41 five days, which may be served upon certain specified days or parts of 42 days as the court may direct. If the person so violating the order has 43 been found to have violated such order on two occasions, and this 44 violation consisted of committing a family offense as defined in subdi- 45 vision one of section eight hundred twelve of the family court act or 46 subdivision one of section 530.11 of the criminal procedure law, the 47 court shall commit such person to a term of imprisonment of no less than 48 fifteen days, which may be served upon certain specified days or parts 49 of days as the court may direct. If the person so violating the order 50 has been found to have violated such order on three or more occasions, 51 and this violation consisted of committing a family offense as defined 52 in subdivision one of section eight hundred twelve of the family court 53 act or subdivision one of section 530.11 of the criminal procedure law, 54 the court shall commit such person to a term of imprisonment of no less 55 than thirty days, which may be served upon certain specified days or 56 parts of days as the court may direct.S. 4614--A 3 1 § 3. Section 846-a of the family court act, as amended by chapter 1 of 2 the laws of 2013, is amended to read as follows: 3 § 846-a. Powers on failure to obey order. If a respondent is brought 4 before the court for failure to obey any lawful order issued under this 5 article or an order of protection or temporary order of protection 6 issued pursuant to this act or issued by a court of competent jurisdic- 7 tion of another state, territorial or tribal jurisdiction and if, after 8 hearing, the court is satisfied by competent proof that the respondent 9 has willfully failed to obey any such order, the court may modify an 10 existing order or temporary order of protection to add reasonable condi- 11 tions of behavior to the existing order, make a new order of protection 12 in accordance with section eight hundred forty-two of this part, may 13 order the forfeiture of bail in a manner consistent with article five 14 hundred forty of the criminal procedure law if bail has been ordered 15 pursuant to this act, may order the respondent to pay the petitioner's 16 reasonable and necessary counsel fees in connection with the violation 17 petition where the court finds that the violation of its order was will- 18 ful, and may commit the respondent to jail for a term not to exceed six 19 months. If the respondent has been found by competent proof to have 20 willfully failed to obey such order of protection on one occasion, 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 five days. If the respondent has been found by competent proof to have 26 willfully failed to obey such order of protection on two occasions, and 27 this willful failure consisted of committing a family offense as defined 28 in subdivision one of section eight hundred twelve of this article or 29 subdivision one of section 530.11 of the criminal procedure law, the 30 court shall commit such person to a term of imprisonment of no less than 31 fifteen days. If the respondent has been found by competent proof to 32 have willfully failed to obey such order of protection on three or more 33 occasions, and this willful failure consisted of committing a family 34 offense as defined in subdivision one of section eight hundred twelve of 35 this article or subdivision one of section 530.11 of the criminal proce- 36 dure law, the court shall commit such person to a term of imprisonment 37 of no less than thirty days. Such commitment may be served upon certain 38 specified days or parts of days as the court may direct, and the court 39 may, at any time within the term of such sentence, revoke such suspen- 40 sion and commit the respondent for the remainder of the original 41 sentence, or suspend the remainder of such sentence. If the court deter- 42 mines that the willful failure to obey such order involves violent 43 behavior constituting the crimes of menacing, reckless endangerment, 44 assault or attempted assault and if such a respondent is licensed to 45 carry, possess, repair and dispose of firearms pursuant to section 46 400.00 of the penal law, the court may also immediately revoke such 47 license and may arrange for the immediate surrender pursuant to subpara- 48 graph (f) of paragraph one of subdivision a of section 265.20 and subdi- 49 vision six of section 400.05 of the penal law, and disposal of any 50 firearm such respondent owns or possesses. If the willful failure to 51 obey such order involves the infliction of physical injury as defined in 52 subdivision nine of section 10.00 of the penal law or the use or threat- 53 ened use of a deadly weapon or dangerous instrument, as those terms are 54 defined in subdivisions twelve and thirteen of section 10.00 of the 55 penal law, such revocation and immediate surrender pursuant to subpara- 56 graph (f) of paragraph one of subdivision a of section 265.20 and subdi-S. 4614--A 4 1 vision six of section 400.05 of the penal law [six] and disposal of any 2 firearm owned or possessed by respondent shall be mandatory, pursuant to 3 subdivision eleven of section 400.00 of the penal law. 4 § 4. Subdivision 11 of section 530.12 of the criminal procedure law, 5 as amended by chapter 498 of the laws of 1993, the opening paragraph as 6 amended by chapter 597 of the laws of 1998, paragraph (a) as amended by 7 chapter 222 of the laws of 1994 and paragraph (d) as amended by chapter 8 644 of the laws of 1996, is amended to read as follows: 9 11. If a defendant is brought before the court for failure to obey 10 any lawful order issued under this section, or an order of protection 11 issued by a court of competent jurisdiction in another state, territo- 12 rial or tribal jurisdiction, and if, after hearing, the court is satis- 13 fied by competent proof that the defendant has willfully failed to obey 14 any such order, (a) the court may: 15 [(a)] (i) revoke an order of recognizance or revoke an order of bail 16 or order forfeiture of such bail and commit the defendant to custody; or 17 [(b)] (ii) restore the case to the calendar when there has been an 18 adjournment in contemplation of dismissal and commit the defendant to 19 custody; or 20 [(c)] (iii) revoke a conditional discharge in accordance with section 21 410.70 of this chapter and impose probation supervision or impose a 22 sentence of imprisonment in accordance with the penal law based on the 23 original conviction; or 24 [(d)] (iv) revoke probation in accordance with section 410.70 of this 25 chapter and impose a sentence of imprisonment in accordance with the 26 penal law based on the original conviction. In addition, if the act 27 which constitutes the violation of the order of protection or temporary 28 order of protection is a crime or a violation the defendant may be 29 charged with and tried for that crime or violation; and 30 (b) If the court finds that the defendant has willfully failed to obey 31 such order of protection on one occasion, and this willful failure 32 consisted of committing a family offense as defined in subdivision one 33 of this section or subdivision one of section eight hundred twelve of 34 the family court act, the court shall commit such person to a term of 35 imprisonment of no less than five days, which may be served upon certain 36 specified days or parts of days as the court may direct. If the court 37 finds that the defendant has willfully failed to obey such order of 38 protection on two occasions, and this willful failure consisted of 39 committing a family offense as defined in subdivision one of this 40 section or subdivision one of section eight hundred twelve of the family 41 court act, the court shall commit such person to a term of imprisonment 42 of no less than fifteen days, which may be served upon certain specified 43 days or parts of days as the court may direct. If the court finds that 44 the defendant has willfully failed to obey such order of protection on 45 three or more occasions, and this willful failure consisted of commit- 46 ting a family offense as defined in subdivision one of this section or 47 subdivision one of section eight hundred twelve of the family court act, 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 § 5. Subdivision 8 of section 530.13 of the criminal procedure law, as 52 added by chapter 388 of the laws of 1984, is amended to read as follows: 53 8. If a defendant is brought before the court for failure to obey any 54 lawful order issued under this section and if, after hearing, the court 55 is satisfied by competent proof that the defendant has willfully failed 56 to obey any such order, (a) the court may:S. 4614--A 5 1 [(a)] (i) revoke an order of recognizance or bail and commit the 2 defendant to custody; or 3 [(b)] (ii) restore the case to the calendar when there has been an 4 adjournment in contemplation of dismissal and commit the defendant to 5 custody or impose or increase bail pending a trial of the original crime 6 or violation; or 7 [(c)] (iii) revoke a conditional discharge in accordance with section 8 410.70 of this chapter and impose probation supervision or impose a 9 sentence of imprisonment in accordance with the penal law based on the 10 original conviction; or 11 [(d)] (iv) revoke probation in accordance with section 410.70 of this 12 chapter and impose a sentence of imprisonment in accordance with the 13 penal law based on the original conviction. In addition, if the act 14 which constitutes the violation of the order of protection or temporary 15 order of protection is a crime or a violation the defendant may be 16 charged with and tried for that crime or violation; and 17 (b) If the court finds that the defendant has willfully failed to obey 18 such order of protection on one occasion, and this willful failure 19 consisted of committing a family offense as defined in subdivision one 20 of section 530.11 of this article or subdivision one of section eight 21 hundred twelve of the family court act, the court shall commit such 22 person to a term of imprisonment of no less than five days, which may be 23 served upon certain specified days or parts of days as the court may 24 direct. If the court finds that the defendant has willfully failed to 25 obey such order of protection on two occasions, and this willful failure 26 consisted of committing a family offense as defined in subdivision one 27 of section 530.11 of this article or subdivision one of section eight 28 hundred twelve of the family court act, the court shall commit such 29 person to a term of imprisonment of no less than fifteen days, which may 30 be served upon certain specified days or parts of days as the court may 31 direct. If the court finds that the defendant has willfully failed to 32 obey such order of protection on three or more occasions, and this will- 33 ful failure consisted of committing a family offense as defined in 34 subdivision one of section 530.11 of this article or subdivision one of 35 section eight hundred twelve of the family court act, the court shall 36 commit such person to a term of imprisonment of no less than thirty 37 days, which may be served upon certain specified days or parts of days 38 as the court may direct. 39 § 6. This act shall take effect on the first of November next succeed- 40 ing the date on which it shall have become a law.
