S T A T E O F N E W Y O R K ________________________________________________________________________ 7412 I N S E N A T E May 10, 2012 ___________ Introduced by Sen. STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the criminal procedure law, the social services law, the family court act, the penal law and the executive law, in relation to maintaining the confidentiality of immigration status for victims of domestic violence THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Short title. This act shall be known and may be cited as 2 "The New York State Violence Against Women Act". 3 S 2. Subparagraph (ii) of paragraph (b) and paragraph (c) of subdivi- 4 sion 4 of section 140.10 of the criminal procedure law, subparagraph 5 (ii) of paragraph (b) as amended by chapter 107 of the laws of 2004 and 6 paragraph (c) as amended by chapter 4 of the laws of 1997, are amended 7 to read as follows: 8 (ii) The respondent or defendant commits a family offense as defined 9 in subdivision one of section eight hundred twelve of the family court 10 act or subdivision one of section 530.11 of this chapter in violation of 11 such order of protection or special order of conditions. AN OFFICER 12 MAKING AN ARREST UNDER THIS SUBPARAGRAPH SHALL NOT INQUIRE AS TO THE 13 IMMIGRATION STATUS OF THE PERSON FOR WHOM THE ORDER PROTECTS. IF SUCH 14 STATUS IS ASCERTAINED AND WOULD RESULT IN ADVERSE IMMIGRATION CONSE- 15 QUENCES TO SUCH PERSON, THE OFFICER SHALL NOT REPORT SUCH INFORMATION TO 16 ANY LOCAL, STATE OR FEDERAL LAW ENFORCEMENT AGENCY. 17 (c) a misdemeanor constituting a family offense, as described in 18 subdivision one of section 530.11 of this chapter and section eight 19 hundred twelve of the family court act, has been committed by such 20 person against such family or household member, unless the victim 21 requests otherwise. The officer shall neither inquire as to whether the 22 victim seeks an arrest of such person nor threaten the arrest of any 23 person for the purpose of discouraging requests for police intervention. 24 THE OFFICER SHALL ALSO NOT INQUIRE AS TO THE IMMIGRATION STATUS OF THE 25 VICTIM; NOR SHALL SUCH OFFICER, IF INFORMED OF SUCH STATUS, REPORT SUCH 26 INFORMATION TO ANY LOCAL, STATE OR FEDERAL LAW ENFORCEMENT AGENCY. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15779-02-2 S. 7412 2 1 Notwithstanding the foregoing, when an officer has reasonable cause to 2 believe that more than one family or household member has committed such 3 a misdemeanor, the officer is not required to arrest each such person. 4 In such circumstances, the officer shall attempt to identify and arrest 5 the primary physical aggressor after considering: (i) the comparative 6 extent of any injuries inflicted by and between the parties; (ii) wheth- 7 er any such person is threatening or has threatened future harm against 8 another party or another family or household member; (iii) whether any 9 such person has a prior history of domestic violence that the officer 10 can reasonably ascertain; and (iv) whether any such person acted defen- 11 sively to protect himself or herself from injury. The officer shall 12 evaluate each complaint separately to determine who is the primary phys- 13 ical aggressor and shall not base the decision to arrest or not to 14 arrest on the willingness of a person to testify or otherwise partic- 15 ipate in a judicial proceeding. 16 S 3. Subdivision 2 of section 530.11 of the criminal procedure law is 17 amended by adding a new paragraph (j) to read as follows: 18 (J) THAT ANY INFORMATION REGARDING THE PETITIONER'S IMMIGRATION STATUS 19 SHALL BE KEPT CONFIDENTIAL AND WILL NOT BE REFERRED OR REPORTED TO ANY 20 LOCAL, STATE OR FEDERAL LAW ENFORCEMENT AGENCY. 21 S 4. The criminal procedure law is amended by adding a new section 22 2.25 to read as follows: 23 S 2.25 PROHIBITIONS ON LAW ENFORCEMENT AGENCIES AND PEACE OFFICERS. 24 A LAW ENFORCEMENT AGENCY OF THE STATE OR A POLITICAL SUBDIVISION OF 25 THE STATE OR A PEACE OFFICER MAY NOT INQUIRE AS TO THE NATIONALITY OR 26 IMMIGRATION STATUS OF A VICTIM OF OR WITNESS TO DOMESTIC VIOLENCE, AS 27 SUCH TERMS ARE DEFINED BY SECTION FOUR HUNDRED FIFTY-NINE-A OF THE 28 SOCIAL SERVICES LAW, EXCEPT AS NECESSARY TO INVESTIGATE THE OFFENSE, NOR 29 SHALL SUCH OFFICER REPORT OR REFER SUCH STATUS TO ANY LOCAL, STATE OR 30 FEDERAL LAW ENFORCEMENT AGENCY. 31 S 5. Section 459-h of the social services law is amended by adding a 32 new subdivision 3 to read as follows: 33 3. ALL INFORMATION RELATED TO A VICTIM OF DOMESTIC VIOLENCE'S IMMI- 34 GRATION STATUS SHALL BE KEPT CONFIDENTIAL AND SHALL NOT BE DISCLOSED FOR 35 ANY PURPOSE, INCLUDING SUCH INVESTIGATIONS THAT MAY BE CONDUCTED BY ANY 36 LOCAL, STATE OR FEDERAL LAW ENFORCEMENT AGENCY RELATING TO SAID INDIVID- 37 UAL'S IMMIGRATION STATUS. 38 S 6. Subdivision 2 of section 812 of the family court act is amended 39 by adding a new paragraph (h) to read as follows: 40 (H) THAT ANY INFORMATION REGARDING THE PETITIONER'S IMMIGRATION STATUS 41 SHALL BE KEPT CONFIDENTIAL AND WILL NOT BE REFERRED OR REPORTED TO ANY 42 LOCAL, STATE OR FEDERAL LAW ENFORCEMENT AGENCY. 43 S 7. The penal law is amended by adding a new section 70.11 to read as 44 follows: 45 S 70.11 SENTENCES OF IMPRISONMENT FOR DOMESTIC VIOLENCE; AGGRAVATING 46 FACTORS. 47 IN MATTERS DIVESTED TO A CRIMINAL COURT UNDER SECTION EIGHT HUNDRED 48 TWELVE OF THE FAMILY COURT ACT, OR WHERE SUCH COURT EXERCISES CONCURRENT 49 JURISDICTION UNDER SUCH SECTION AND IN MATTERS REFERRED TO A CRIMINAL 50 COURT UNDER ARTICLE SIX-A OF THE SOCIAL SERVICES LAW, WHERE THE RESPOND- 51 ENT THREATENS TO EXPOSE A WITNESS OR A VICTIM'S IMMIGRATION STATUS IN 52 ORDER TO COERCE SUCH VICTIM OR WITNESS OR CONCEAL SUCH OFFENSE, SHALL 53 RESULT IN THE FOLLOWING ENHANCEMENT OF SUCH SENTENCE: 54 (A) FOR OFFENSES COMMITTED UNDER SECTION 120.00 OF THIS CHAPTER, THE 55 SENTENCE SHALL REFLECT A CLASS E FELONY; S. 7412 3 1 (B) FOR OFFENSES COMMITTED UNDER SECTION 120.05 OF THIS CHAPTER, THE 2 SENTENCE SHALL REFLECT A CLASS C FELONY; 3 (C) FOR OFFENSES COMMITTED UNDER SECTION 120.10 OF THIS CHAPTER, THE 4 SENTENCE SHALL REFLECT A CLASS A FELONY; 5 (D) FOR OFFENSES COMMITTED UNDER SECTION 120.13 OF THIS CHAPTER, THE 6 SENTENCE SHALL REFLECT A CLASS D FELONY; 7 (E) FOR OFFENSES COMMITTED UNDER SECTION 120.14 OF THIS CHAPTER, THE 8 SENTENCE SHALL REFLECT A CLASS E FELONY; 9 (F) FOR OFFENSES COMMITTED UNDER SECTION 120.15 OF THIS CHAPTER, THE 10 SENTENCE SHALL REFLECT A CLASS A MISDEMEANOR; 11 (G) FOR OFFENSES COMMITTED UNDER SECTION 120.20 OF THIS CHAPTER, THE 12 SENTENCE SHALL REFLECT A CLASS E FELONY; 13 (H) FOR OFFENSES COMMITTED UNDER SECTION 120.25 OF THIS CHAPTER, THE 14 SENTENCE SHALL REFLECT A CLASS C FELONY; 15 (I) FOR OFFENSES COMMITTED UNDER SECTION 120.45 OF THIS CHAPTER, THE 16 SENTENCE SHALL REFLECT A CLASS A MISDEMEANOR; 17 (J) FOR OFFENSES COMMITTED UNDER SECTION 120.50 OF THIS CHAPTER, THE 18 SENTENCE SHALL REFLECT A CLASS E FELONY; 19 (K) FOR OFFENSES COMMITTED UNDER SECTION 120.55 OF THIS CHAPTER, THE 20 SENTENCE SHALL REFLECT A CLASS D FELONY; 21 (L) FOR OFFENSES COMMITTED UNDER SECTION 120.60 OF THIS CHAPTER, THE 22 SENTENCE SHALL REFLECT A CLASS C FELONY; 23 (M) FOR OFFENSES COMMITTED UNDER SECTION 121.11 OF THIS CHAPTER, THE 24 SENTENCE SHALL REFLECT A CLASS E FELONY; 25 (N) FOR OFFENSES COMMITTED UNDER SECTION 121.12 OF THIS CHAPTER, THE 26 SENTENCE SHALL REFLECT A CLASS C FELONY; 27 (O) FOR OFFENSES COMMITTED UNDER SECTION 121.13 OF THIS CHAPTER, THE 28 SENTENCE SHALL REFLECT A CLASS B FELONY; 29 (P) FOR OFFENSES COMMITTED UNDER SECTION 130.25 OF THIS CHAPTER, THE 30 SENTENCE SHALL REFLECT A CLASS D FELONY; 31 (Q) FOR OFFENSES COMMITTED UNDER SECTION 130.30 OF THIS CHAPTER, THE 32 SENTENCE SHALL REFLECT A CLASS C FELONY; 33 (R) FOR OFFENSES COMMITTED UNDER SECTION 130.35 OF THIS CHAPTER, THE 34 SENTENCE SHALL REFLECT A CLASS A FELONY; 35 (S) FOR OFFENSES COMMITTED UNDER SECTION 130.40 OF THIS CHAPTER, THE 36 SENTENCE SHALL REFLECT A CLASS D FELONY; 37 (T) FOR OFFENSES COMMITTED UNDER SECTION 130.45 OF THIS CHAPTER, THE 38 SENTENCE SHALL REFLECT A CLASS C FELONY; 39 (U) FOR OFFENSES COMMITTED UNDER SECTION 130.50 OF THIS CHAPTER, THE 40 SENTENCE SHALL REFLECT A CLASS A FELONY; 41 (V) FOR OFFENSES COMMITTED UNDER SECTION 130.55 OF THIS CHAPTER, THE 42 SENTENCE SHALL REFLECT A CLASS A MISDEMEANOR; 43 (W) FOR OFFENSES COMMITTED UNDER SECTION 130.60 OF THIS CHAPTER, THE 44 SENTENCE SHALL REFLECT A CLASS E FELONY; 45 (X) FOR OFFENSES COMMITTED UNDER SECTION 130.65 OF THIS CHAPTER, THE 46 SENTENCE SHALL REFLECT A CLASS C FELONY; 47 (Y) FOR OFFENSES COMMITTED UNDER SECTION 130.65-A OF THIS CHAPTER, THE 48 SENTENCE SHALL REFLECT A CLASS D FELONY; 49 (Z) FOR OFFENSES COMMITTED UNDER SECTION 130.66 OF THIS CHAPTER, THE 50 SENTENCE SHALL REFLECT A CLASS C FELONY; 51 (AA) FOR OFFENSES COMMITTED UNDER SECTION 130.67 OF THIS CHAPTER, THE 52 SENTENCE SHALL REFLECT A CLASS B FELONY; 53 (BB) FOR OFFENSES COMMITTED UNDER SECTION 130.70 OF THIS CHAPTER, THE 54 SENTENCE SHALL REFLECT A CLASS A FELONY; 55 (CC) FOR OFFENSES COMMITTED UNDER SECTION 135.05 OF THIS CHAPTER, THE 56 SENTENCE SHALL REFLECT A CLASS E FELONY; S. 7412 4 1 (DD) FOR OFFENSES COMMITTED UNDER SECTION 135.10 OF THIS CHAPTER, THE 2 SENTENCE SHALL REFLECT A CLASS D FELONY; 3 (EE) FOR OFFENSES COMMITTED UNDER SECTION 135.20 OF THIS CHAPTER, THE 4 SENTENCE SHALL REFLECT A CLASS A FELONY; 5 (FF) FOR OFFENSES COMMITTED UNDER SECTION 135.45 OF THIS CHAPTER, THE 6 SENTENCE SHALL REFLECT A CLASS E FELONY; 7 (GG) FOR OFFENSES COMMITTED UNDER SECTION 135.50 OF THIS CHAPTER, THE 8 SENTENCE SHALL REFLECT A CLASS D FELONY. 9 S 8. The executive law is amended by adding a new section 844 to read 10 as follows: 11 S 844. INQUIRY INTO IMMIGRATION STATUS PROHIBITED IN CERTAIN CIRCUM- 12 STANCES. IN CONDUCTING AN INVESTIGATORY ACTIVITY, INCLUDING AN INTER- 13 VIEW, INTO ANY INCIDENT OF DOMESTIC VIOLENCE, AS SUCH TERM IS DEFINED IN 14 ARTICLE SIX-A OF THE SOCIAL SERVICES LAW, A LAW ENFORCEMENT AGENCY OR A 15 LAW ENFORCEMENT OFFICIAL SHALL NOT INQUIRE ABOUT OR SEEK PROOF OF A 16 PERSON'S IMMIGRATION STATUS, NOR SHALL SUCH OFFICER, IF INFORMED OF SUCH 17 STATUS, REFER OR REPORT ANY FINDINGS REGARDING SUCH STATUS TO ANY LOCAL, 18 STATE OR FEDERAL LAW ENFORCEMENT AGENCY. ANY INFORMATION OBTAINED IN 19 SUCH INVESTIGATORY ACTIVITY REGARDING A PERSON'S IMMIGRATION STATUS 20 SHALL BE KEPT CONFIDENTIAL. 21 S 9. This act shall take effect immediately, provided that the amend- 22 ments to subdivision 4 of section 140.10 of the criminal procedure law 23 made by section two of this act shall not affect the repeal of such 24 subdivision and shall be deemed repealed therewith.