Bill Text: NY S07880 | 2017-2018 | General Assembly | Introduced
Bill Title: Relates to issuing restraining orders for certain offenders.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2018-03-06 - REFERRED TO CODES [S07880 Detail]
Download: New_York-2017-S07880-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 7880 IN SENATE March 6, 2018 ___________ Introduced by Sen. FUNKE -- read twice and ordered printed, and when printed to be committed 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. 25 § 735.00 Restraining order - use of a child to commit a controlled 26 substance offense. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD11972-01-7S. 7880 2 1 1. When a person is charged with a criminal offense as defined in 2 section 220.28 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 220.28 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 220.28 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 220.28 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 § 735.10 Restraining order - criminal sale of a controlled substance in 44 the fourth degree. 45 1. When a person is charged with a criminal offense as defined in 46 section 220.34 of the penal law and the person is released from custody 47 before trial on bail or personal recognizance, the court, upon applica- 48 tion of a law enforcement officer or prosecuting district attorney and 49 except as provided in subdivision one of section 735.40 of this article, 50 shall as a condition of release issue an order prohibiting the person 51 from entering any place where the crime occurred, including a buffer 52 zone surrounding the place or modifications as provided by subdivision 53 two of section 735.40 of this article. 54 2. When a person is charged with a criminal offense as defined in 55 section 220.34 of the penal law on a summons, the court, upon applica- 56 tion of a law enforcement officer or prosecuting attorney and except asS. 7880 3 1 provided in subdivision one of section 735.40 of this article, shall, at 2 the time of the defendant's first appearance, issue an order prohibiting 3 the person from entering any place where the crime occurred, including a 4 buffer zone surrounding the place or modifications as provided by subdi- 5 vision two of section 735.40 of this article. 6 3. When a person is charged with a criminal offense as defined in 7 section 220.34 of the penal law on a juvenile delinquency complaint and 8 is released from custody at a detention hearing, the court, upon appli- 9 cation of a law enforcement officer or prosecuting attorney and except 10 as provided in subdivision one of section 735.40 of this article, shall 11 issue an order prohibiting the person from entering any place where the 12 crime occurred, including a buffer zone surrounding the place or modifi- 13 cations as provided by subdivision two of section 735.40 of this arti- 14 cle. 15 4. When a person is charged with a criminal offense as defined in 16 section 220.34 of the penal law on a juvenile delinquency complaint and 17 is released without being detained, the law enforcement officer or pros- 18 ecuting attorney shall prepare an application for filing on the next 19 day. The law enforcement officer releasing the juvenile shall serve the 20 juvenile and his parent or guardian with written notice that an order 21 shall be issued by the family court on the next court day prohibiting 22 the juvenile from entering any place where the crime occurred including 23 a buffer zone surrounding the place or modifications as provided by 24 subdivision two of section 735.40 of this article. The court shall issue 25 such order on the first court day following the release of the juvenile. 26 If the restraints contained in the court order differ from the 27 restraints contained in the notice, the order shall not be effective 28 until the third court day following the issuance of the order. The juve- 29 nile may apply to the court to stay or modify the order on the grounds 30 set forth in subdivision one of section 735.40 of this article. 31 § 735.15 Restraining order - criminal sale of a controlled substance to 32 a child. 33 1. When a person is charged with a criminal offense as defined in 34 section 220.48 of the penal law and the person is released from custody 35 before trial on bail or personal recognizance, the court, upon applica- 36 tion of a law enforcement officer or prosecuting attorney and except as 37 provided in subdivision one of section 735.40 of this article, shall as 38 a condition of release issue an order prohibiting the person from enter- 39 ing any place where the crime occurred, including a buffer zone 40 surrounding the place or modifications as provided by subdivision two of 41 section 735.40 of this article. 42 2. When a person is charged with a criminal offense as defined in 43 section 220.48 of the penal law on a summons, the court, upon applica- 44 tion of a law enforcement officer or prosecuting attorney and except as 45 provided in subdivision one of section 735.40 of this article, shall, at 46 the time of the defendant's first appearance, issue an order prohibiting 47 the person from entering any place where the crime occurred, including a 48 buffer zone surrounding the place or modifications as provided by subdi- 49 vision two of section 735.40 of this article. 50 3. When a person is charged with a criminal offense as defined in 51 section 220.48 of the penal law on a juvenile delinquency complaint and 52 is released from custody at a detention hearing, the court, upon appli- 53 cation of a law enforcement officer or prosecuting attorney and except 54 as provided in subdivision one of section 735.40 of this article, shall 55 issue an order prohibiting the person from entering any place where the 56 crime occurred, including a buffer zone surrounding the place or modifi-S. 7880 4 1 cations as provided by subdivision two of section 735.40 of this arti- 2 cle. 3 4. When a person is charged with a criminal offense as defined in 4 section 220.48 of the penal law on a juvenile delinquency complaint and 5 is released without being detained, the law enforcement officer or pros- 6 ecuting attorney shall prepare an application for filing on the next 7 day. The law enforcement officer releasing the juvenile shall serve the 8 juvenile and his or her parent or guardian with written notice that an 9 order shall be issued by the family court on the next court day prohib- 10 iting the juvenile 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. The court 13 shall issue such order on the first court day following the release of 14 the juvenile. If the restraints contained in the court order differ from 15 the restraints contained in the notice, the order shall not be effective 16 until the third court day following the issuance of the order. The juve- 17 nile may apply to the court to stay or modify the order on the grounds 18 set forth in subdivision one of section 735.40 of this article. 19 § 735.20 Restraining order - unlawful manufacture of methamphetamine in 20 the third degree. 21 1. When a person is charged with a criminal offense as defined in 22 section 220.73 of the penal law and the person is released from custody 23 before trial on bail or personal recognizance, the court, upon applica- 24 tion of a law enforcement officer or prosecuting attorney and except as 25 provided in subdivision one of section 735.40 of this article, shall as 26 a condition of release issue an order prohibiting the person from enter- 27 ing any place where the crime occurred, including a buffer zone 28 surrounding the place or modifications as provided by subdivision two of 29 section 735.40 of this article. 30 2. When a person is charged with a criminal offense as defined in 31 section 220.73 of the penal law on a summons, the court, upon applica- 32 tion of a law enforcement officer or prosecuting attorney and except as 33 provided in subdivision one of section 735.40 of this article, shall, at 34 the time of the defendant's first appearance, issue an order prohibiting 35 the person from entering any place where the crime occurred, including a 36 buffer zone surrounding the place or modifications as provided by subdi- 37 vision two of section 735.40 of this article. 38 3. When a person is charged with a criminal offense as defined in 39 section 220.73 of the penal law on a juvenile delinquency complaint and 40 is released from custody at a detention hearing, the court, upon appli- 41 cation of a law enforcement officer or prosecuting attorney and except 42 as provided in subdivision one of section 735.40 of this article, shall 43 issue an order prohibiting the person from entering any place where the 44 crime occurred, including a buffer zone surrounding the place or modifi- 45 cations as provided by subdivision two of section 735.40 of this arti- 46 cle. 47 4. When a person is charged with a criminal offense as defined in 48 section 220.73 of the penal law on a juvenile delinquency complaint and 49 is released without being detained, the law enforcement officer or pros- 50 ecuting attorney shall prepare an application for filing on the next 51 day. The law enforcement officer releasing the juvenile shall serve the 52 juvenile and his or her parent or guardian with written notice that an 53 order shall be issued by the family court on the next court day prohib- 54 iting the juvenile from entering any place where the crime occurred 55 including a buffer zone surrounding the place or modifications as 56 provided by subdivision two of section 735.40 of this article. The courtS. 7880 5 1 shall issue such order on the first court day following the release of 2 the juvenile. If the restraints contained in the court order differ from 3 the restraints contained in the notice, the order shall not be effective 4 until the third court day following the issuance of the order. The juve- 5 nile may apply to the court to stay or modify the order on the grounds 6 set forth in subdivision one of section 735.40 of this article. 7 § 735.25 Restraining order - unlawful manufacture of methamphetamine in 8 the second degree. 9 1. When a person is charged with a criminal offense as defined in 10 section 220.74 of the penal law and the person is released from custody 11 before trial on bail or personal recognizance, 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 as 14 a condition of release issue an order prohibiting the person from enter- 15 ing any place where the crime occurred, including a buffer zone 16 surrounding the place or modifications as provided by subdivision two of 17 section 735.40 of this article. 18 2. When a person is charged with a criminal offense as defined in 19 section 220.74 of the penal law on a summons, the court, upon applica- 20 tion of a law enforcement officer or prosecuting attorney and except as 21 provided in subdivision one of section 735.40 of this article, shall, at 22 the time of the defendant's first appearance, issue an order prohibiting 23 the person from entering any place where the crime occurred, including a 24 buffer zone surrounding the place or modifications as provided by subdi- 25 vision two of section 735.40 of this article. 26 3. When a person is charged with a criminal offense as defined in 27 section 220.74 of the penal law on a juvenile delinquency complaint and 28 is released from custody at a detention hearing, the court, upon appli- 29 cation of a law enforcement officer or prosecuting attorney and except 30 as provided in subdivision one of section 735.40 of this article, shall 31 issue an order prohibiting the person from entering any place where the 32 crime occurred, including a buffer zone surrounding the place or modifi- 33 cations as provided by subdivision two of section 735.40 of this arti- 34 cle. 35 4. When a person is charged with a criminal offense as defined in 36 section 220.74 of the penal law on a juvenile delinquency complaint and 37 is released without being detained, the law enforcement officer or pros- 38 ecuting attorney shall prepare an application for filing on the next 39 day. The law enforcement officer releasing the juvenile shall serve the 40 juvenile and his or her parent or guardian with written notice that an 41 order shall be issued by the family court on the next court day prohib- 42 iting the juvenile from entering any place where the crime occurred 43 including a buffer zone surrounding the place or modifications as 44 provided by subdivision two of section 735.40 of this article. The court 45 shall issue such order on the first court day following the release of 46 the juvenile. If the restraints contained in the court order differ from 47 the restraints contained in the notice, the order shall not be effective 48 until the third court day following the issuance of the order. The juve- 49 nile may apply to the court to stay or modify the order on the grounds 50 set forth in subdivision one of section 735.40 of this article. 51 § 735.30 Restraining order - unlawful manufacture of methamphetamine in 52 the first degree. 53 1. When a person is charged with a criminal offense as defined in 54 section 220.75 of the penal law and the person is released from custody 55 before trial on bail or personal recognizance, the court, upon applica- 56 tion of a law enforcement officer or prosecuting attorney and except asS. 7880 6 1 provided in subdivision one of section 735.40 of this article, shall as 2 a condition of release issue an order prohibiting the person from enter- 3 ing any place where the crime occurred, including a buffer zone 4 surrounding the place or modifications as provided by subdivision two of 5 section 735.40 of this article. 6 2. When a person is charged with a criminal offense as defined in 7 section 220.75 of the penal law on a summons, the court, upon applica- 8 tion of a law enforcement officer or prosecuting attorney and except as 9 provided in subdivision one of section 735.40 of this article, shall, at 10 the time of the defendant's first appearance, issue an order prohibiting 11 the person from entering any place where the crime occurred, including a 12 buffer zone surrounding the place or modifications as provided by subdi- 13 vision two of section 735.40 of this article. 14 3. When a person is charged with a criminal offense as defined in 15 section 220.75 of the penal law on a juvenile delinquency complaint and 16 is released from custody at a detention hearing, the court, upon appli- 17 cation of a law enforcement officer or prosecuting attorney and except 18 as provided in subdivision one of section 735.40 of this article, shall 19 issue an order prohibiting the person from entering any place where the 20 crime occurred, including a buffer zone surrounding the place or modifi- 21 cations as provided by subdivision two of section 735.40 of this arti- 22 cle. 23 4. When a person is charged with a criminal offense as defined in 24 section 220.75 of the penal law on a juvenile delinquency complaint and 25 is released without being detained, the law enforcement officer or pros- 26 ecuting attorney shall prepare an application for filing on the next 27 day. The law enforcement officer releasing the juvenile shall serve the 28 juvenile and his or her parent or guardian with written notice that an 29 order shall be issued by the family court on the next court day prohib- 30 iting the juvenile from entering any place where the crime occurred 31 including a buffer zone surrounding the place or modifications as 32 provided by subdivision two of section 735.40 of this article. The court 33 shall issue such order on the first court day following the release of 34 the juvenile. If the restraints contained in the court order differ from 35 the restraints contained in the notice, the order shall not be effective 36 until the third court day following the issuance of the order. The juve- 37 nile may apply to the court to stay or modify the order on the grounds 38 set forth in subdivision one of section 735.40 of this article. 39 § 735.35 Restraining order - operating as a major trafficker. 40 1. When a person is charged with a criminal offense as defined in 41 section 220.77 of the penal law and the person is released from custody 42 before trial on bail or personal recognizance, the court, upon applica- 43 tion of a law enforcement officer or prosecuting attorney and except as 44 provided in subdivision one of section 735.40 of this article, shall as 45 a condition of release issue an order prohibiting the person from enter- 46 ing any place where the crime occurred, including a buffer zone 47 surrounding the place or modifications as provided by subdivision two of 48 section 735.40 of this article. 49 2. When a person is charged with a criminal offense as defined in 50 section 220.77 of the penal law on a summons, the court, upon applica- 51 tion of a law enforcement officer or prosecuting attorney and except as 52 provided in subdivision one of section 735.40, shall, at the time of the 53 defendant's first appearance, issue an order prohibiting the person from 54 entering any place where the crime occurred, including a buffer zone 55 surrounding the place or modifications as provided by subdivision two of 56 section 735.40 of this article.S. 7880 7 1 3. When a person is charged with a criminal offense as defined in 2 section 220.77 of the penal law on a juvenile delinquency complaint and 3 is released from custody at a detention hearing, the court, upon appli- 4 cation of a law enforcement officer or prosecuting attorney and except 5 as provided in subdivision one of section 735.40, shall issue an order 6 prohibiting the person from entering any place where the crime occurred, 7 including a buffer zone surrounding the place or modifications as 8 provided by subdivision two of section 735.40 of this article. 9 4. When a person is charged with a criminal offense as defined in 10 section 220.77 of the penal law on a juvenile delinquency complaint and 11 is released without being detained, the law enforcement officer or pros- 12 ecuting attorney shall prepare an application for filing on the next 13 day. The law enforcement officer releasing the juvenile shall serve the 14 juvenile and his or her parent or guardian with written notice that an 15 order shall be issued by the family court on the next court day prohib- 16 iting the juvenile from entering any place where the crime occurred 17 including a buffer zone surrounding the place or modifications as 18 provided by subdivision two of section 735.40 of this article. The court 19 shall issue such order on the first court day following the release of 20 the juvenile. If the restraints contained in the court order differ from 21 the restraints contained in the notice, the order shall not be effective 22 until the third court day following the issuance of the order. The juve- 23 nile may apply to the court to stay or modify the order on the grounds 24 set forth in subdivision one of section 735.40 of this article. 25 § 735.40 Restraining order - exceptions, content, distribution, modifi- 26 cations. 27 1. The court may forego issuing a restraining order for which applica- 28 tion has been made only if the defendant establishes by clear and 29 convincing evidence that: (a) the defendant lawfully resides at or has 30 legitimate business on or near the place, or otherwise legitimately 31 needs to enter the place. In such event, the court shall not issue an 32 order pursuant to this article unless the court is clearly convinced 33 that the need to bar the person from the place in order to protect the 34 public safety and the rights, safety and health of the residents and 35 persons working in the place outweighs the person's interest in return- 36 ing to the place. If the balance of the interest of the person and the 37 public so warrants, the court may issue an order imposing conditions 38 upon the person's entry at, upon or near the place; or 39 (b) the issuance of an order would cause undue hardship to innocent 40 persons and would constitute a serious injustice which overrides the 41 need to protect the rights, safety and health of persons residing in or 42 having business in the place. 43 2. A restraining order issued pursuant to this article shall describe 44 the place from which the person has been barred and any conditions upon 45 the person's entry into the place, with sufficient specificity to enable 46 the person to guide his conduct accordingly and to enable a law enforce- 47 ment officer to enforce the order. The order shall also prohibit the 48 person from entering an area of up to five hundred feet surrounding the 49 place, unless the court rules that a different buffer zone would better 50 effectuate the purposes of this article. In the discretion of the court, 51 the order may contain modifications to permit the person to enter the 52 area during specified times for specified purposes such as attending 53 school during regular school hours. When appropriate, the court may 54 append to the order a map depicting the place. The person shall be given 55 a copy of the restraining order and any appended map and shall acknowl- 56 edge in writing the receipt thereof.S. 7880 8 1 3. (a) The court shall provide notice of the restraining order to the 2 local law enforcement agency where the arrest occurred and to the county 3 district attorney. 4 (b) Prior to the person's conviction or adjudication of delinquency 5 for a criminal offense, the local law enforcement agency may post a copy 6 of any orders issued pursuant to this article, or an equivalent notice 7 containing the terms of the order, upon one or more of the principal 8 entrances of the place or in any other conspicuous location. Such post- 9 ing shall be for the purpose of informing the public, and the failure to 10 post a copy of the order shall in no way excuse any violation of the 11 order. 12 (c) Prior to the person's conviction or adjudication of delinquency 13 for a criminal offense, any law enforcement agency may publish a copy of 14 any orders issued pursuant to this article, or an equivalent notice 15 containing the terms of the order, in a newspaper circulating in the 16 area of the restraining order. Such publication shall be for the purpose 17 of informing the public, and the failure to publish a copy of the order 18 shall in no way excuse any violation of the order. 19 (d) Prior to the person's conviction or adjudication of delinquency 20 for a criminal offense, any law enforcement agency may distribute copies 21 of any orders issued pursuant to this article, or an equivalent notice 22 containing the terms of the order, to residents or businesses located 23 within the area delineated in the order or, in the case of a school or 24 any government-owned property, to the appropriate administrator, or to 25 any tenant association representing the residents of the affected area. 26 Such publication shall be for the purpose of informing the public, and 27 the failure to publish a copy of the order shall in no way excuse any 28 violation of the order. 29 4. When a person is convicted of or adjudicated delinquent for any 30 criminal offense described in this article, the court, upon application 31 of a law enforcement officer or prosecuting attorney and except as 32 provided in subdivision one of this section, shall, by separate order or 33 within the judgment of conviction, issue an order prohibiting the person 34 from entering any place where the crime occurred, including a buffer 35 zone surrounding the place or modifications as provided by subdivision 36 two of this section. Upon the person's conviction or adjudication of 37 delinquency for a criminal offense described in this article, a law 38 enforcement agency, in addition to posting, publishing and distributing 39 the order or an equivalent notice pursuant to paragraphs (b), (c), and 40 (d) of subdivision three of this section, may also post, publish and 41 distribute a photograph of the person. 42 5. When a juvenile has been adjudicated delinquent for an act which, 43 if committed by an adult, would be a criminal offense, in addition to an 44 order required by subdivision four of this section or any other disposi- 45 tion authorized by law, the court may order the juvenile and any parent, 46 guardian or any family member over whom the court has jurisdiction to 47 take such actions or obey such restraints as may be necessary to facili- 48 tate the rehabilitation of the juvenile or to protect public safety or 49 to safeguard or enforce the rights of residents of the place. The court 50 may commit the juvenile to the care of the office of children and family 51 services until such time as the juvenile reaches the age of eighteen or 52 until the order of removal and restraint expires, whichever first 53 occurs, or to such alternative residential placement as is practicable. 54 6. An order issued pursuant to sections 735.00, 735.10, 735.15, 55 735.20, 735.25, 735.30, and 735.35 of this article shall remain in 56 effect until the case has been adjudicated or dismissed, or for not lessS. 7880 9 1 than two years, whichever is less. An order issued pursuant to subdivi- 2 sion four of this section shall remain in effect for such period of, 3 time as shall be fixed by the court but not longer than the maximum 4 terms of imprisonment or incarceration allowed by law for the underlying 5 offense or offenses. When the court issues a restraining order pursuant 6 to subdivision four of this section and the person is also sentenced to 7 any form of probationary supervision, the court shall make continuing 8 compliance with the order an express condition of probation. When the 9 person has been sentenced to a term of incarceration, continuing compli- 10 ance with the terms and conditions of the order shall be made an express 11 condition of the person's release from confinement or incarceration on 12 parole. At the time of sentencing or, in the case of a juvenile, at the 13 time of disposition of the juvenile case, the court shall advise the 14 defendant that the restraining order shall include a fixed time period 15 in accordance with this subdivision and shall include that provision in 16 the judgment of conviction, dispositional order, separate order or order 17 vacating an existing restraining order, to the law enforcement agency 18 that made the arrest and to the county district attorney. 19 7. All applications to stay or modify an order issued pursuant to this 20 section shall be made in supreme court. The court shall immediately 21 notify the county district attorney in writing whenever an application 22 is made to stay or modify an order issued pursuant to this section. If 23 the court does not issue a restraining order, the sentence imposed by 24 the court for a criminal offense as defined in this article shall not 25 become final for ten days in order to permit the appeal of the court's 26 findings by the prosecution. 27 8. Nothing in this article shall be construed in any way to limit the 28 authority of the court to take such other actions or to issue such 29 orders as may be necessary to protect the public safety or to safeguard 30 or enforce the rights of others with respect to the place. 31 9. Notwithstanding any other provision of this article, the court may 32 permit the person to return to the place to obtain personal belongings 33 and effects and, by court order, may restrict the time and duration and 34 provide for police supervision of such visit. 35 § 735.45 Certification of offense location. 36 The court shall issue a restraining order pursuant to this article 37 only upon request by a law enforcement officer or prosecuting attorney 38 and submission of a certification describing the location of the 39 offense. 40 § 735.50 Discretion to not seek restraining order. 41 A law enforcement or prosecuting attorney shall have discretion to not 42 seek a restraining order if the defendant is charged with an offense 43 resulting from the stop of a motor vehicle or if the defendant was using 44 public transportation. 45 ARTICLE 740 46 RESTRAINING ORDER FROM LOCATION; CERTAIN CRIMES 47 Section 740.00 Restraining order - criminal possession of a weapon in 48 the third degree. 49 740.10 Restraining order -- exceptions, content, distribution, 50 modifications. 51 740.15 Certification of offense location. 52 740.20 Discretion to not seek restraining order. 53 § 740.00 Restraining order - criminal possession of a weapon in the 54 third degree. 55 1. When a person is charged with a criminal offense as defined in 56 subdivision seven of section 265.02 of the penal law and the person isS. 7880 10 1 released from custody before trial on bail or personal recognizance, the 2 court, upon application of a law enforcement officer or prosecuting 3 attorney and except as provided in subdivision one of section 740.10 of 4 this article, shall as a condition of release issue an order prohibiting 5 the person from entering any place where the crime occurred, including a 6 buffer zone surrounding the place or modifications as provided by subdi- 7 vision two of section 740.10 of this article. 8 2. When a person is charged with a criminal offense as defined in 9 subdivision seven of section 265.02 of the penal law on a summons, the 10 court, upon application of a law enforcement officer or prosecuting 11 attorney and except as provided in subdivision one of section 740.10 of 12 this article, shall, at the time of the defendant's first appearance, 13 issue an order prohibiting the person from entering any place where the 14 crime occurred, including a buffer zone surrounding the place or modifi- 15 cations as provided by subdivision two of section 740.10 of this arti- 16 cle. 17 3. When a person is charged with a criminal offense as defined in 18 subdivision seven of section 265.02 of the penal law on a juvenile 19 delinquency complaint and is released from custody at a detention hear- 20 ing, the court, upon application of a law enforcement officer or prose- 21 cuting attorney and except as provided in subdivision one of section 22 740.10 of this article, shall issue an order prohibiting the person from 23 entering any place where the crime occurred, including a buffer zone 24 surrounding the place or modifications as provided by subdivision two of 25 section 740.10 of this article. 26 4. When a person is charged with a criminal offense as defined in 27 subdivision seven of section 265.02 of the penal law on a juvenile 28 delinquency complaint and is released without being detained, the law 29 enforcement officer or prosecuting attorney shall prepare an application 30 for filing on the next day. The law enforcement officer releasing the 31 juvenile shall serve the juvenile and his or her parent or guardian with 32 written notice that an order shall be issued by the family court on the 33 next court day prohibiting the juvenile from entering any place where 34 the crime occurred including a buffer zone surrounding the place or 35 modifications as provided by subdivision two of section 740.10 of this 36 article. The court shall issue such order on the first court day follow- 37 ing the release of the juvenile. If the restraints contained in the 38 court order differ from the restraints contained in the notice, the 39 order shall not be effective until the third court day following the 40 issuance of the order. The juvenile may apply to the court to stay or 41 modify the order on the grounds set forth in subdivision one of section 42 740.10 of this article. 43 § 740.10 Restraining order -- exceptions, content, distribution, modifi- 44 cations. 45 1. The court may forego issuing a restraining order for which applica- 46 tion has been made only if the defendant establishes by clear and 47 convincing evidence that: (a) the defendant lawfully resides at or has 48 legitimate business on or near the place, or otherwise legitimately 49 needs to enter the place. In such an event, the court shall not issue an 50 order pursuant to this article unless the court is clearly convinced 51 that the need to bar the person from the place in order to protect the 52 public safety and the rights, safety and health of the residents and 53 persons working in the place outweighs the person's interest in return- 54 ing to the place. If the balance of the interest of the person and the 55 public so warrants, the court may issue an order imposing conditions 56 upon the person's entry at, upon or near the place; orS. 7880 11 1 (b) the issuance of an order would cause undue hardship to innocent 2 persons and would constitute a serious injustice which overrides the 3 need to protect the rights, safety and health of persons residing in or 4 having business in the place. 5 2. A restraining order issued pursuant to this article shall describe 6 the place from which the person has been barred and any conditions upon 7 the person's entry into the place, with sufficient specificity to enable 8 the person to guide his conduct accordingly and to enable a law enforce- 9 ment officer to enforce the order. The order shall also prohibit the 10 person from entering an area of up to five hundred feet surrounding the 11 place, unless the court rules that a different buffer zone would better 12 effectuate the purposes of this act. In the discretion of the court, the 13 order may contain modifications to permit the person to enter the area 14 during specified times for specified purposes such as attending school 15 during regular school hours. When appropriate, the court may append to 16 the order a map depicting the place. The person shall be given a copy of 17 the restraining order and any appended map and shall acknowledge in 18 writing the receipt thereof. 19 3. (a) The court shall provide notice of the restraining order to the 20 local law enforcement agency where the arrest occurred and to the county 21 district attorney. 22 (b) Prior to the person's conviction or adjudication of delinquency 23 for a criminal offense, the local law enforcement agency may post a copy 24 of any orders issued pursuant to this article, or an equivalent notice 25 containing the terms of the order, upon one or more of the principal 26 entrances of the place or in any other conspicuous location. Such post- 27 ing shall be for the purpose of informing the public, and the failure to 28 post a copy of the order shall in no way excuse any violation of the 29 order. 30 (c) Prior to the person's conviction or adjudication of delinquency 31 for a criminal offense, any law enforcement agency may publish a copy of 32 any orders issued pursuant to this article, or an equivalent notice 33 containing the terms of the order, in a newspaper circulating in the 34 area of the restraining order. Such publication shall be for the purpose 35 of informing the public, and the failure to publish a copy of the order 36 shall in no way excuse any violation of the order. 37 (d) Prior to the person's conviction or adjudication of delinquency 38 for a criminal offense, any law enforcement agency may distribute copies 39 of any orders issued pursuant to this article, or an equivalent notice 40 containing the terms of the order, to residents or businesses located 41 within the area delineated in the order or, in the case of a school or 42 any government-owned property, to the appropriate administrator, or to 43 any tenant association representing the residents of the affected area. 44 Such publication shall be for the purpose of informing the public, and 45 the failure to publish a copy of the order shall in no way excuse any 46 violation of the order. 47 4. When a person is convicted of or adjudicated delinquent for any 48 criminal offense described in this article, the court, upon application 49 of a law enforcement officer or prosecuting attorney and except as 50 provided in subdivision one of this section, shall, by separate order or 51 within the judgment of conviction, issue an order prohibiting the person 52 from entering any place where the crime occurred, including a buffer 53 zone surrounding the place or modifications as provided by subdivision 54 two of this section. Upon the person's conviction or adjudication of 55 delinquency for a criminal offense described in this article, a law 56 enforcement agency, in addition to posting, publishing and distributingS. 7880 12 1 the order or an equivalent notice pursuant to paragraphs (b), (c), and 2 (d) of subdivision three of this section, may also post, publish and 3 distribute a photograph of the person. 4 5. When a juvenile has been adjudicated delinquent for an act which, 5 if committed by an adult, would be a criminal offense, in addition to an 6 order required by subdivision four of this section or any other disposi- 7 tion authorized by law, the court may order the juvenile and any parent, 8 guardian or any family member over whom the court has jurisdiction to 9 take such actions or obey such restraints as may be necessary to facili- 10 tate the rehabilitation of the juvenile or to protect public safety or 11 to safeguard or enforce the rights of residents of the place. The court 12 may commit the juvenile to the care of the office of children and family 13 services until such time as the juvenile reaches the age of eighteen or 14 until the order of removal and restraint expires, whichever first 15 occurs, or to such alternative residential placement as is practicable. 16 6. An order issued pursuant to section 740.00 of this article shall 17 remain in effect until the case has been adjudicated or dismissed, or 18 for not less than two years, whichever is less. An order issued pursuant 19 to subdivision four of this section shall remain in effect for such 20 period of time as shall be fixed by the court but not longer than the 21 maximum terms of imprisonment or incarceration allowed by law for the 22 underlying offense or offenses. When the court issues a restraining 23 order pursuant to subdivision four of this section and the person is 24 also sentenced to any form of probationary supervision, the court shall 25 make continuing compliance with the order an express condition of 26 probation. When the person has been sentenced to a term of incarcera- 27 tion, continuing compliance with the terms and conditions of the order 28 shall be made an express condition of the person's release from confine- 29 ment or incarceration on parole. At the time of sentencing or, in the 30 case of a juvenile, at the time of disposition of the juvenile case, the 31 court shall advise the defendant that the restraining order shall 32 include a fixed time period in accordance with this subdivision and 33 shall include that provision in the judgment of conviction, disposi- 34 tional order, separate order or order vacating an existing restraining 35 order, to the law enforcement agency that made the arrest and to the 36 county district attorney. 37 7. All applications to stay or modify an order issued pursuant to this 38 section shall be made in supreme court. The court shall immediately 39 notify the county district attorney in writing whenever an application 40 is made to stay or modify an order issued pursuant to this section. If 41 the court does not issue a restraining order, the sentence imposed by 42 the court for a criminal offense as defined in this article shall not 43 become final for ten days in order to permit the appeal of the court's 44 findings by the prosecution. 45 8. Nothing in this article shall be construed in any way to limit the 46 authority of the court to take such other actions or to issue such 47 orders as may be necessary to protect the public safety or to safeguard 48 or enforce the rights of others with respect to the place. 49 9. Notwithstanding any other provision of this article, the court may 50 permit the person to return to the place to obtain personal belongings 51 and effects and, by court order, may restrict the time and duration and 52 provide for police supervision of such visit. 53 § 740.15 Certification of offense location. 54 The court shall issue a restraining order pursuant to this article 55 only upon request by a law enforcement officer or prosecuting districtS. 7880 13 1 attorney and submission of a certification describing the location of 2 the offense. 3 § 740.20 Discretion to not seek restraining order. 4 A law enforcement or prosecuting district attorney shall have 5 discretion to not seek a restraining order if the defendant is charged 6 with an offense resulting from the stop of a motor vehicle or if the 7 defendant was using public transportation. 8 § 2. This act shall take effect on the ninetieth day after it shall 9 have become a law.
