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.
LBD04656-02-7
S. 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.