Bill Text: NY S08038 | 2009-2010 | General Assembly | Introduced
Bill Title: Creates the crime of aggravated domestic violence, constituting a class E felony; provides for an indictment accompanied by a special information for the aggravated domestic violence offender under certain circumstances.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-06-02 - REFERRED TO CODES [S08038 Detail]
Download: New_York-2009-S08038-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
8038
I N S E N A T E
June 2, 2010
___________
Introduced by Sen. SQUADRON -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to the creation of the crime of aggravated domestic violence
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The penal law is amended by adding a new section 240.75 to
2 read as follows:
3 S 240.75 AGGRAVATED DOMESTIC VIOLENCE.
4 1. A PERSON IS GUILTY OF AGGRAVATED DOMESTIC VIOLENCE WHEN HE OR SHE
5 COMMITS A SPECIFIED DOMESTIC VIOLENCE OFFENSE AND HE OR SHE HAS BEEN
6 CONVICTED OF ONE OR MORE SPECIFIED DOMESTIC VIOLENCE OFFENSES WITHIN THE
7 IMMEDIATELY PRECEDING FIVE YEARS. FOR THE PURPOSES OF THIS SECTION, IN
8 CALCULATING THE FIVE YEAR PERIOD, ANY PERIOD OF TIME DURING WHICH THE
9 DEFENDANT WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF THE
10 COMMISSION OF ANY OF THE PREVIOUS CONVICTIONS AND THE TIME OF COMMISSION
11 OF THE PRESENT CRIME SHALL BE EXCLUDED AND SUCH FIVE YEAR PERIOD SHALL
12 BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED UNDER SUCH
13 INCARCERATION.
14 2. A "SPECIFIED DOMESTIC VIOLENCE OFFENSE" IS AN OFFENSE WHERE THE
15 DEFENDANT AND THE PERSON AGAINST WHOM THE OFFENSE IS COMMITTED ARE
16 MEMBERS OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF
17 SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW AND WHERE THAT OFFENSE
18 INCLUDES ANY OF THE FOLLOWING PROVISIONS OF THE PENAL LAW: SECTION
19 120.00 (ASSAULT IN THE THIRD DEGREE); SECTION 120.05 (ASSAULT IN THE
20 SECOND DEGREE); SECTION 120.10 (ASSAULT IN THE FIRST DEGREE); SECTION
21 120.13 (MENACING IN THE FIRST DEGREE); SECTION 120.14 (MENACING IN THE
22 SECOND DEGREE); SECTION 120.15 (MENACING IN THE THIRD DEGREE); SECTION
23 120.20 (RECKLESS ENDANGERMENT IN THE SECOND DEGREE); SECTION 120.25
24 (RECKLESS ENDANGERMENT IN THE FIRST DEGREE); SECTION 120.45 (STALKING IN
25 THE FOURTH DEGREE); SECTION 120.50 (STALKING IN THE THIRD DEGREE);
26 SECTION 120.55 (STALKING IN THE SECOND DEGREE); SECTION 120.60 (STALKING
27 IN THE FIRST DEGREE); SUBDIVISION ONE OF SECTION 125.15 (MANSLAUGHTER IN
28 THE SECOND DEGREE); SUBDIVISION ONE, TWO OR FOUR OF SECTION 125.20
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17548-01-0
S. 8038 2
1 (MANSLAUGHTER IN THE FIRST DEGREE); SECTION 125.25 (MURDER IN THE SECOND
2 DEGREE); SECTION 130.20 (SEXUAL MISCONDUCT); SECTION 130.30 (RAPE IN THE
3 SECOND DEGREE); SECTION 130.35 (RAPE IN THE FIRST DEGREE); SECTION
4 130.40 (CRIMINAL SEXUAL ACT IN THE THIRD DEGREE); SECTION 130.45 (CRIMI-
5 NAL SEXUAL ACT IN THE SECOND DEGREE); SECTION 130.50 (CRIMINAL SEXUAL
6 ACT IN THE FIRST DEGREE); SECTION 130.52 (FORCIBLE TOUCHING); SECTION
7 130.53 (PERSISTENT SEXUAL ABUSE); SECTION 130.55 (SEXUAL ABUSE IN THE
8 THIRD DEGREE); SECTION 130.60 (SEXUAL ABUSE IN THE SECOND DEGREE);
9 SECTION 130.65 (SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 130.66
10 (AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE); SECTION 130.67 (AGGRA-
11 VATED SEXUAL ABUSE IN THE SECOND DEGREE); SECTION 130.70 (AGGRAVATED
12 SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 130.91 (SEXUALLY MOTIVATED
13 FELONY); SECTION 130.95 (PREDATORY SEXUAL ASSAULT); SECTION 130.96
14 (PREDATORY SEXUAL ASSAULT AGAINST A CHILD); SECTION 135.05 (UNLAWFUL
15 IMPRISONMENT IN THE SECOND DEGREE); SECTION 135.10 (UNLAWFUL IMPRISON-
16 MENT IN THE FIRST DEGREE); SECTION 135.20 (KIDNAPPING IN THE SECOND
17 DEGREE); SECTION 135.25 (KIDNAPPING IN THE FIRST DEGREE); SECTION 135.60
18 (COERCION IN THE SECOND DEGREE); SECTION 135.65 (COERCION IN THE FIRST
19 DEGREE); SECTION 140.10 (CRIMINAL TRESPASS IN THE THIRD DEGREE); SECTION
20 140.15 (CRIMINAL TRESPASS IN THE SECOND DEGREE); SECTION 140.17 (CRIMI-
21 NAL TRESPASS IN THE FIRST DEGREE); SECTION 140.20 (BURGLARY IN THE THIRD
22 DEGREE); SECTION 140.25 (BURGLARY IN THE SECOND DEGREE); SECTION 140.30
23 (BURGLARY IN THE FIRST DEGREE); SECTION 145.00 (CRIMINAL MISCHIEF IN THE
24 FOURTH DEGREE); SECTION 145.05 (CRIMINAL MISCHIEF IN THE THIRD DEGREE);
25 SECTION 145.10 (CRIMINAL MISCHIEF IN THE SECOND DEGREE); SECTION 145.12
26 (CRIMINAL MISCHIEF IN THE FIRST DEGREE); SECTION 145.14 (CRIMINAL
27 TAMPERING IN THE THIRD DEGREE); SECTION 145.25 (RECKLESS ENDANGERMENT OF
28 PROPERTY); SECTION 145.60 (MAKING GRAFFITI); SECTION 150.01 (ARSON IN
29 THE FIFTH DEGREE); SECTION 150.05 (ARSON IN THE FOURTH DEGREE); SECTION
30 150.10 (ARSON IN THE THIRD DEGREE); SECTION 150.15 (ARSON IN THE SECOND
31 DEGREE); SECTION 150.20 (ARSON IN THE FIRST DEGREE); SECTION 215.50
32 (CRIMINAL CONTEMPT IN THE SECOND DEGREE); SECTION 215.51 (CRIMINAL
33 CONTEMPT IN THE FIRST DEGREE); SECTION 215.52 (AGGRAVATED CRIMINAL
34 CONTEMPT); SECTION 240.25 (HARASSMENT IN THE FIRST DEGREE); SUBDIVISION
35 ONE, TWO OR FOUR OF SECTION 240.30 (AGGRAVATED HARASSMENT IN THE SECOND
36 DEGREE); SECTION 240.48 (DISSEMINATING A FALSE REGISTERED SEX OFFENDER
37 NOTICE); SECTION 240.50 (FALSELY REPORTING AN INCIDENT IN THE THIRD
38 DEGREE); SECTION 240.55 (FALSELY REPORTING AN INCIDENT IN THE SECOND
39 DEGREE); SECTION 240.60 (FALSELY REPORTING AN INCIDENT IN THE FIRST
40 DEGREE); OR ANY ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
41 OFFENSES.
42 AGGRAVATED DOMESTIC VIOLENCE IS A CLASS E FELONY.
43 S 2. The criminal procedure law is amended by adding a new section
44 200.63 to read as follows:
45 S 200.63 INDICTMENT; SPECIAL INFORMATION FOR AGGRAVATED DOMESTIC
46 VIOLENCE OFFENDER.
47 1. WHENEVER A PERSON IS CHARGED WITH THE COMMISSION OR ATTEMPTED
48 COMMISSION OF AN AGGRAVATED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN
49 SECTION 240.75 OF THE PENAL LAW WHICH CONSTITUTES A FELONY AND IT
50 APPEARS THAT THE VICTIM OF SUCH OFFENSE WAS A MEMBER OF THE SAME FAMILY
51 OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS
52 CHAPTER, AN INDICTMENT FOR SUCH OFFENSE MAY BE ACCOMPANIED BY A SPECIAL
53 INFORMATION, FILED BY THE DISTRICT ATTORNEY WITH THE COURT, ALLEGING
54 THAT THE VICTIM WAS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED
55 IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER AND WAS PREVIOUSLY
S. 8038 3
1 CONVICTED OF A SPECIFIED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN SECTION
2 240.75 OF THE PENAL LAW.
3 2. PRIOR TO TRIAL, OR AFTER THE COMMENCEMENT OF THE TRIAL BUT BEFORE
4 THE CLOSE OF THE PEOPLE'S CASE, THE COURT, IN THE ABSENCE OF THE JURY,
5 MUST ARRAIGN THE DEFENDANT UPON SUCH INFORMATION AND ADVISE HIM OR HER
6 THAT HE OR SHE MAY ADMIT SUCH ALLEGATION, DENY IT OR REMAIN MUTE. PEND-
7 ING THE DEFENDANT'S RESPONSE, THE TRIAL OF THE INDICTMENT MUST PROCEED
8 AS FOLLOWS:
9 (A) IF THE DEFENDANT ADMITS THAT THE ALLEGED VICTIM WAS A MEMBER OF
10 THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION
11 530.11 OF THIS CHAPTER, AT THE TIME OF THE COMMISSION OR ATTEMPTED
12 COMMISSION OF THE OFFENSE, THAT ALLEGATION SHALL BE DEEMED ESTABLISHED
13 FOR ALL SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION
14 70.00 OF THE PENAL LAW;
15 (B) IF THE DEFENDANT ADMITS THAT HE OR SHE WAS CONVICTED OF A SPECI-
16 FIED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN SECTION 240.75 OF THE PENAL
17 LAW, THAT ALLEGATION SHALL BE DEEMED ESTABLISHED FOR ALL SUBSEQUENT
18 PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION 70.00 OF THE PENAL
19 LAW;
20 (C) IF THE DEFENDANT DENIES EITHER ALLEGATION OR REMAINS MUTE, THE
21 PEOPLE MAY, BY PROOF BEYOND A REASONABLE DOUBT, PROVE BEFORE THE JURY
22 OR, WHERE THE DEFENDANT HAS WAIVED A JURY TRIAL, THE COURT, THAT THE
23 ALLEGED VICTIM WAS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED
24 IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER AT THE TIME OF THE
25 COMMISSION OR ATTEMPTED COMMISSION OF THE OFFENSE.
26 3. AFTER COMMENCEMENT OF THE TRIAL AND BEFORE THE CLOSE OF THE
27 PEOPLE'S CASE, THE COURT, IN THE ABSENCE OF THE JURY, SHALL ARRAIGN THE
28 DEFENDANT UPON SUCH SPECIAL INFORMATION, AND SHALL ADVISE HIM OR HER
29 THAT HE OR SHE MAY ADMIT THE PREVIOUS CONVICTION ALLEGED, DENY IT OR
30 REMAIN MUTE. DEPENDING UPON THE DEFENDANT'S RESPONSE, THE TRIAL OF THE
31 INDICTMENT SHALL THEN PROCEED AS FOLLOWS:
32 (A) IF THE DEFENDANT ADMITS THE PREVIOUS CONVICTION, THAT ELEMENT OF
33 THE OFFENSE CHARGED IN THE INDICTMENT IS DEEMED ESTABLISHED, NO EVIDENCE
34 IN SUPPORT THEREOF MAY BE ADDUCED BY THE PEOPLE, AND THE COURT MUST
35 SUBMIT THE CASE TO THE JURY WITHOUT REFERENCE THERETO AND AS IF THE FACT
36 OF SUCH PREVIOUS CONVICTION WERE NOT AN ELEMENT OF THE OFFENSE. THE
37 COURT SHALL NOT SUBMIT TO THE JURY ANY LESSER INCLUDED OFFENSE WHICH IS
38 DISTINGUISHED FROM THE OFFENSE CHARGED SOLELY BY THE FACT THAT A PREVI-
39 OUS CONVICTION IS NOT AN ELEMENT THEREOF.
40 (B) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE,
41 THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE CHARGED BEFORE THE JURY
42 AS A PART OF THEIR CASE. IN ANY PROSECUTION UNDER SUBPARAGRAPH (IX) OF
43 PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THE PENAL LAW, IF
44 THE DEFENDANT DENIES THE PREVIOUS MURDER CONVICTION OR REMAINS MUTE, THE
45 PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE ONLY AFTER THE JURY HAS
46 FIRST FOUND THE DEFENDANT GUILTY OF INTENTIONALLY CAUSING THE DEATH OF A
47 PERSON AS CHARGED IN THE INDICTMENT, IN WHICH CASE THE COURT SHALL THEN
48 PERMIT THE PEOPLE AND THE DEFENDANT TO OFFER EVIDENCE AND ARGUMENT
49 CONSISTENT WITH THE RELEVANT PROVISIONS OF SECTION 260.30 OF THIS CHAP-
50 TER WITH RESPECT TO THE PREVIOUS MURDER CONVICTION.
51 4. WHERE A JURY MAKES THE DETERMINATION OF WHETHER THE ALLEGED VICTIM
52 OF THE OFFENSE WAS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED
53 IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, SUCH JURY SHALL
54 CONSIDER AND RENDER ITS VERDICT ON SUCH ISSUE ONLY AFTER RENDERING ITS
55 VERDICT WITH REGARD TO THE OFFENSE.
S. 8038 4
1 5. A DETERMINATION PURSUANT TO THIS SECTION THAT THE VICTIM WAS A
2 MEMBER OF THE SAME FAMILY OR HOUSEHOLD, AS DEFINED IN SUBDIVISION ONE OF
3 SECTION 530.11 OF THIS CHAPTER, AT THE TIME OF THE COMMISSION OF THE
4 OFFENSE SHALL BE BINDING IN ANY FUTURE PROCEEDING IN WHICH THE ISSUE MAY
5 ARISE UNLESS THE UNDERLYING CONVICTION OR DETERMINATION IS VACATED OR
6 REVERSED.
7 S 3. This act shall take effect on the one hundred eightieth day after
8 it shall have become a law.
