Bill Text: NY A02243 | 2021-2022 | General Assembly | Introduced
Bill Title: Establishes domestic abuse offenses for assaults upon spouses, former spouses, fellow parents of a child in common and domestic partners; provides for issuance of a special information for domestic abuse in the first degree requiring a predicate criminal conviction; designates such domestic abuse offenses as family offenses for purposes of the criminal procedure law and the family court act.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2022-01-05 - referred to codes [A02243 Detail]
Download: New_York-2021-A02243-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 2243 2021-2022 Regular Sessions IN ASSEMBLY January 14, 2021 ___________ Introduced by M. of A. CUSICK, O'DONNELL -- read once and referred to the Committee on Codes AN ACT to amend the penal law, in relation to establishing domestic abuse offenses; to amend the criminal procedure law, in relation to providing for a special information in the indictment of certain felo- ny domestic abuse offenses and procedures for determining whether domestic abuse misdemeanors are crimes of domestic violence for purposes of federal law; and to amend the criminal procedure law and the family court act, in relation to including domestic abuse in the first and second degrees as family offenses 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 three new sections 2 120.75, 120.80 and 120.85 to read as follows: 3 § 120.75 Definitions; domestic abuse. 4 For the purposes of sections 120.80 and 120.85 of this article: 5 1. "Domestic partner" shall mean a person who is living or has lived 6 together with another person for an extended duration in an intimate 7 relationship marked by sexual, physical or financial interdependence. 8 2. "Fellow parent of a child in common" shall mean a person who has a 9 child in common with another person regardless of whether such persons 10 were married or have lived together. 11 3. "Former spouse" shall mean a person formerly married to another 12 person regardless of whether such persons still reside in the same 13 household. 14 4. "Spouse" shall mean a person legally married to another person. 15 § 120.80 Domestic abuse in the second degree. 16 A person is guilty of domestic abuse in the second degree when, with 17 intent to harass, annoy or alarm his or her spouse, former spouse, 18 fellow parent of a child in common or domestic partner, he or she causes EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD01228-01-1A. 2243 2 1 physical injury to such spouse, former spouse, fellow parent of a child 2 in common or domestic partner. 3 Domestic abuse in the second degree is a class A misdemeanor. 4 § 120.85 Domestic abuse in the first degree. 5 A person is guilty of domestic abuse in the first degree when: 6 1. With intent to cause physical injury to his or her spouse, former 7 spouse, fellow parent of a child in common or domestic partner, he or 8 she causes such injury to such spouse, former spouse, fellow parent of a 9 child in common or domestic partner, or to a third person; or 10 2. He or she recklessly causes physical injury to his or her spouse, 11 former spouse, fellow parent of a child in common or domestic partner; 12 or 13 3. With criminal negligence, he or she causes physical injury to his 14 or her spouse, former spouse, fellow parent of a child in common or 15 domestic partner by means of a deadly weapon or dangerous instrument; or 16 4. He or she commits a crime against his or her spouse, former spouse, 17 fellow parent of a child in common or domestic partner, and he or she 18 has previously been convicted of a crime against his or her spouse, 19 former spouse, fellow parent of a child in common or domestic partner 20 within the preceding five years. The person against whom a crime has 21 been committed for purposes of culpability under this subdivision may be 22 a different person than whom the predicate crime was committed against 23 during the preceding five years. For purposes of this subdivision, any 24 period of time during which the defendant was incarcerated for any 25 reason between the commission of any previous crimes and the commission 26 of the crime in violation of this subdivision shall be excluded and such 27 five year period shall be extended by the period or period of time 28 during which the defendant was incarcerated. 29 Domestic abuse in the first degree is a class E felony. 30 § 2. The criminal procedure law is amended by adding a new section 31 200.64 to read as follows: 32 § 200.64 Indictment; special information for domestic abuse offender. 33 1. Whenever a person is charged with the commission or attempted 34 commission of domestic abuse in the first degree as defined in subdivi- 35 sion four of section 120.85 of the penal law, an indictment or informa- 36 tion for such offense shall be accompanied by a special information, 37 filed by the district attorney with the court, alleging that the defend- 38 ant was previously convicted of a crime, that at the time of the previ- 39 ous crime or at an earlier time the defendant was the spouse, former 40 spouse, fellow parent of a child in common or domestic partner, as 41 defined in section 120.75 of the penal law of the victim of such crime, 42 and that such previous conviction took place within the time period 43 specified in subdivision four of section 120.85 of the penal law. 44 Except as provided in this section, the people may not refer to such 45 special information during trial nor adduce any evidence concerning the 46 allegations therein. 47 2. At any time before the close of the people's case, the court, in 48 the absence of the jury, must arraign the defendant upon such informa- 49 tion and advise him or her that he or she may admit each such allega- 50 tion, deny any such allegation or remain mute with respect to any such 51 allegation. Depending upon the defendant's response, the trial of the 52 indictment or information must then proceed as follows: 53 (a) (i) If the previous conviction is of domestic abuse in the second 54 degree as defined by section 120.80 of the penal law, and the defendant 55 admits the previous conviction or that it took place within the time 56 period specified in subdivision four of section 120.85 of the penal law,A. 2243 3 1 the admitted allegation or allegations shall be deemed established for 2 all subsequent purposes, including sentencing pursuant to section 70.00 3 of the penal law. The court must submit the case to the jury as if the 4 admitted allegation or allegations were not elements of the offense. The 5 court may not submit to the jury any lesser included offense which is 6 distinguished from the offense charged solely by the fact that the 7 previous conviction is not an element thereof. 8 (ii) If the defendant denies the previous conviction or remains mute 9 with respect to it, the people may prove that element of the offense 10 before the jury as a part of their case. 11 (iii) If the defendant denies that the previous conviction took place 12 within the time period specified in subdivision four of section 120.85 13 of the penal law, or remains mute with respect to that matter, the 14 people may prove, beyond a reasonable doubt, before the jury as part of 15 their case, that the previous conviction took place within the time 16 period specified. 17 (b) (i) If the previous conviction is for a crime other than domestic 18 abuse in the second degree as defined by section 120.80 of the penal 19 law, and the defendant admits the previous conviction, that it took 20 place within the time period specified in subdivision four of section 21 120.85 of the penal law, or that the defendant was the spouse, former 22 spouse, fellow parent of a child in common or domestic partner as 23 defined in section 120.75 of the penal law of the victim of such crime, 24 the admitted allegation or allegations shall be deemed established for 25 all subsequent purposes, including sentencing pursuant to section 70.00 26 of the penal law. The court must submit the case to the jury as if the 27 admitted allegation or allegations were not elements of the offense. The 28 court may not submit to the jury any lesser included offense which is 29 distinguished from the offense charged solely by the fact that the 30 previous conviction is not an element thereof. 31 (ii) If the defendant denies the previous conviction or remains mute 32 with respect to it, the people may prove that element of the offense 33 before the jury as a part of their case. 34 (iii) If the defendant denies that the previous conviction took place 35 within the time period specified in subdivision four of section 120.85 36 of the penal law, or remains mute with respect to that matter, the 37 people may prove, beyond a reasonable doubt, before the jury as part of 38 their case, that the previous conviction took place within the time 39 period specified. 40 (iv) If the defendant denies that the defendant was the spouse, former 41 spouse, fellow parent of a child in common or domestic partner as 42 defined in section 120.75 of the penal law of the victim of such previ- 43 ous crime, or remains mute with respect to that matter, the people may 44 prove that element of the offense before the jury as a part of their 45 case. 46 3. Notwithstanding subdivision one, and subparagraph (i) of paragraph 47 (a) and subparagraph (i) of paragraph (b) of subdivision two of this 48 section, if evidence regarding the prior conviction, or that the defend- 49 ant was the spouse, former spouse, fellow parent of a child in common or 50 domestic partner as defined in section 120.75 of the penal law of the 51 victim of such previous crime, is relevant to help prove the crime or 52 crimes charged in the indictment or information, such evidence shall be 53 admissible. 54 4. A determination pursuant to this section that the defendant has a 55 previous conviction, that at the time of the prior offense the defendant 56 was the spouse, former spouse, fellow parent of a child in common orA. 2243 4 1 domestic partner as defined in section 120.75 of the penal law of the 2 victim of such previous crime, or that the previous conviction took 3 place within the time period specified in subdivision four of section 4 120.85 of the penal law, shall be binding in any future proceeding in 5 which the issue may arise unless the conviction for the domestic abuse 6 offense charged in the indictment or information is vacated or reversed. 7 § 3. Subdivision 1 of section 370.15 of the criminal procedure law, as 8 amended by section 1 of part Q of chapter 55 of the laws of 2020, is 9 amended to read as follows: 10 1. When a defendant has been charged with assault in the third degree, 11 menacing in the third degree, menacing in the second degree, domestic 12 abuse in the second degree, criminal obstruction of breathing or blood 13 circulation, unlawful imprisonment in the second degree, coercion in the 14 third degree, criminal tampering in the third degree, criminal contempt 15 in the second degree, harassment in the first degree, aggravated harass- 16 ment in the second degree, criminal trespass in the third degree, crimi- 17 nal trespass in the second degree, arson in the fifth degree, or attempt 18 to commit any of the above-listed offenses, the people shall, at 19 arraignment or no later than forty-five days after arraignment, serve on 20 the defendant and file with the court a notice alleging that the defend- 21 ant and the person alleged to be the victim of such crime were members 22 of the same family or household as defined in subdivision one of section 23 530.11 of this chapter. 24 § 4. Section 380.97 of the criminal procedure law, as added by chapter 25 60 of the laws of 2018, is amended to read as follows: 26 § 380.97 Notification to division of criminal justice services of 27 certain misdemeanor convictions. 28 Upon judgment of conviction of assault in the third degree, menacing 29 in the third degree, menacing in the second degree, domestic abuse in 30 the second degree, criminal obstruction of breathing or blood circu- 31 lation, unlawful imprisonment in the second degree, coercion in the 32 third degree, criminal tampering in the third degree, criminal contempt 33 in the second degree, harassment in the first degree, or aggravated 34 harassment in the second degree, criminal trespass in the third degree, 35 criminal trespass in the second degree, arson in the fifth degree, or 36 attempt to commit any of the above-listed offenses, when the defendant 37 and victim have been determined, pursuant to section 370.15 of this 38 part, to be members of the same family or household as defined in subdi- 39 vision one of section 530.11 of this chapter, the clerk of the court 40 shall include notification and a copy of the written determination in a 41 report of such conviction to the division of criminal justice services 42 to enable the division to report such determination to the Federal 43 Bureau of Investigation and assist the bureau in identifying persons 44 prohibited from purchasing and possessing a firearm or other weapon due 45 to conviction of an offense specified in paragraph [c] (c) of subdivi- 46 sion seventeen of section 265.00 of the penal law. 47 § 5. The opening paragraph of subdivision 1 of section 530.11 of the 48 criminal procedure law, as amended by chapter 109 of the laws of 2019, 49 is amended to read as follows: 50 The family court and the criminal courts shall have concurrent juris- 51 diction over any proceeding concerning acts which would constitute 52 disorderly conduct, unlawful dissemination or publication of an intimate 53 image, harassment in the first degree, harassment in the second degree, 54 aggravated harassment in the second degree, domestic abuse in the first 55 degree, domestic abuse in the second degree, sexual misconduct, forcible 56 touching, sexual abuse in the third degree, sexual abuse in the secondA. 2243 5 1 degree as set forth in subdivision one of section 130.60 of the penal 2 law, stalking in the first degree, stalking in the second degree, stalk- 3 ing in the third degree, stalking in the fourth degree, criminal 4 mischief, menacing in the second degree, menacing in the third degree, 5 reckless endangerment, strangulation in the first degree, strangulation 6 in the second degree, criminal obstruction of breathing or blood circu- 7 lation, assault in the second degree, assault in the third degree, an 8 attempted assault, identity theft in the first degree, identity theft in 9 the second degree, identity theft in the third degree, grand larceny in 10 the fourth degree, grand larceny in the third degree, coercion in the 11 second degree or coercion in the third degree as set forth in subdivi- 12 sions one, two and three of section 135.60 of the penal law between 13 spouses or former spouses, or between parent and child or between 14 members of the same family or household except that if the respondent 15 would not be criminally responsible by reason of age pursuant to section 16 30.00 of the penal law, then the family court shall have exclusive 17 jurisdiction over such proceeding. Notwithstanding a complainant's 18 election to proceed in family court, the criminal court shall not be 19 divested of jurisdiction to hear a family offense proceeding pursuant to 20 this section. For purposes of this section, "disorderly conduct" 21 includes disorderly conduct not in a public place. For purposes of this 22 section, "members of the same family or household" with respect to a 23 proceeding in the criminal courts shall mean the following: 24 § 6. The opening paragraph of subdivision 1 of section 812 of the 25 family court act, as amended by chapter 109 of the laws of 2019, is 26 amended to read as follows: 27 The family court and the criminal courts shall have concurrent juris- 28 diction over any proceeding concerning acts which would constitute 29 disorderly conduct, unlawful dissemination or publication of an intimate 30 image, harassment in the first degree, harassment in the second degree, 31 aggravated harassment in the second degree, domestic abuse in the first 32 degree, domestic abuse in the second degree, sexual misconduct, forcible 33 touching, sexual abuse in the third degree, sexual abuse in the second 34 degree as set forth in subdivision one of section 130.60 of the penal 35 law, stalking in the first degree, stalking in the second degree, stalk- 36 ing in the third degree, stalking in the fourth degree, criminal 37 mischief, menacing in the second degree, menacing in the third degree, 38 reckless endangerment, criminal obstruction of breathing or blood circu- 39 lation, strangulation in the second degree, strangulation in the first 40 degree, assault in the second degree, assault in the third degree, an 41 attempted assault, identity theft in the first degree, identity theft in 42 the second degree, identity theft in the third degree, grand larceny in 43 the fourth degree, grand larceny in the third degree, coercion in the 44 second degree or coercion in the third degree as set forth in subdivi- 45 sions one, two and three of section 135.60 of the penal law between 46 spouses or former spouses, or between parent and child or between 47 members of the same family or household except that if the respondent 48 would not be criminally responsible by reason of age pursuant to section 49 30.00 of the penal law, then the family court shall have exclusive 50 jurisdiction over such proceeding. Notwithstanding a complainant's 51 election to proceed in family court, the criminal court shall not be 52 divested of jurisdiction to hear a family offense proceeding pursuant to 53 this section. In any proceeding pursuant to this article, a court shall 54 not deny an order of protection, or dismiss a petition, solely on the 55 basis that the acts or events alleged are not relatively contemporaneous 56 with the date of the petition, the conclusion of the fact-finding or theA. 2243 6 1 conclusion of the dispositional hearing. For purposes of this article, 2 "disorderly conduct" includes disorderly conduct not in a public place. 3 For purposes of this article, "members of the same family or household" 4 shall mean the following: 5 § 7. This act shall take effect on the first of November next succeed- 6 ing the date on which it shall have become a law.
