Bill Text: NY A06862 | 2009-2010 | General Assembly | Introduced


Bill Title: Establishes the crimes of domestic assault in the second degree which shall be a class A misdemeanor and domestic assault in the first degree which shall be a class E felony; relates to the definition of "members of the same family or household".

Spectrum: Partisan Bill (Republican 34-1)

Status: (Introduced - Dead) 2010-05-11 - held for consideration in codes [A06862 Detail]

Download: New_York-2009-A06862-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         6862
                              2009-2010 Regular Sessions
                                 I N  A S S E M B L Y
                                    March 13, 2009
                                      ___________
       Introduced  by  M.  of  A. SCOZZAFAVA, McDONOUGH, KOLB, SPANO, TOWNSEND,
         GIGLIO -- Multi-Sponsored by --  M.  of  A.  ALFANO,  BACALLES,  BALL,
         BARCLAY,  BARRA,  BOYLE,  BURLING,  BUTLER,  CALHOUN,  CONTE,  CROUCH,
         DUPREY, ERRIGO, FINCH, FITZPATRICK, HAWLEY, P. LOPEZ, McKEVITT,  MILL-
         ER,  MOLINARO,  OAKS,  O'MARA, QUINN, RABBITT, RAIA, REILICH, SAYWARD,
         TEDISCO, THIELE, WALKER -- read once and referred to the Committee  on
         Codes
       AN  ACT to amend the criminal procedure law and the family court act, in
         relation to jurisdiction in family offense proceedings; and  to  amend
         the penal law, in relation to creating the crime of domestic assault
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1.  Subdivision 1 of section 530.11 of the criminal  procedure
    2  law,  as  amended by chapter 326 of the laws of 2008, is amended to read
    3  as follows:
    4    1. Jurisdiction. The family court and the criminal courts  shall  have
    5  concurrent  jurisdiction over any proceeding concerning acts which would
    6  constitute disorderly conduct, harassment in the first  degree,  harass-
    7  ment  in  the second degree, aggravated harassment in the second degree,
    8  stalking in the first degree, stalking in the second degree, stalking in
    9  the third degree, stalking in  the  fourth  degree,  criminal  mischief,
   10  menacing  in  the  second degree, menacing in the third degree, reckless
   11  endangerment, assault in the second degree, assault in the third  degree
   12  or  an  attempted  assault between spouses or former spouses, or between
   13  parent and child or between members of  the  same  family  or  household
   14  except  that  if  the  respondent would not be criminally responsible by
   15  reason of age pursuant to section 30.00 of the penal law, then the fami-
   16  ly  court  shall  have  exclusive  jurisdiction  over  such  proceeding.
   17  Notwithstanding a complainant's election to proceed in family court, the
   18  criminal  court  shall  not be divested of jurisdiction to hear a family
   19  offense proceeding pursuant  to  this  section.  For  purposes  of  this
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08562-01-9
       A. 6862                             2
    1  section,  "disorderly  conduct"  includes  disorderly  conduct  not in a
    2  public place. For purposes of this section, "members of the same  family
    3  or  household" with respect to a proceeding in the criminal courts shall
    4  mean the following:
    5    (a) persons related by consanguinity or affinity;
    6    (b) persons legally married to one another;
    7    (c) persons formerly married to one another regardless of whether they
    8  still reside in the same household;
    9    (d)  persons  who  have  a child in common, regardless of whether such
   10  persons have been married or have lived together at any time; [and]
   11    (e) persons who are not related by consanguinity or affinity  and  who
   12  are  or have been in an intimate relationship regardless of whether such
   13  persons have lived together at any time. Factors the court may  consider
   14  in  determining  whether  a  relationship  is an "intimate relationship"
   15  include but are not limited to: the  nature  or  type  of  relationship,
   16  regardless of whether the relationship is sexual in nature; the frequen-
   17  cy of interaction between the persons; and the duration of the relation-
   18  ship.  Neither a casual acquaintance nor ordinary fraternization between
   19  two individuals in business  or  social  contexts  shall  be  deemed  to
   20  constitute an "intimate relationship"; AND
   21    (F)  PERSONS  RESIDING  TOGETHER  CONTINUALLY OR AT REGULAR INTERVALS,
   22  CURRENTLY OR IN THE PAST.
   23    S 2. Subdivision 1 of section 812 of the family court act, as  amended
   24  by chapter 326 of the laws of 2008, is amended to read as follows:
   25    1.  Jurisdiction.  The family court and the criminal courts shall have
   26  concurrent jurisdiction over any proceeding concerning acts which  would
   27  constitute  disorderly  conduct, harassment in the first degree, harass-
   28  ment in the second degree, aggravated harassment in the  second  degree,
   29  stalking in the first degree, stalking in the second degree, stalking in
   30  the  third  degree,  stalking  in  the fourth degree, criminal mischief,
   31  menacing in the second degree, menacing in the  third  degree,  reckless
   32  endangerment,  assault in the second degree, assault in the third degree
   33  or an attempted assault between spouses or former  spouses,  or  between
   34  parent  and  child  or  between  members of the same family or household
   35  except that if the respondent would not  be  criminally  responsible  by
   36  reason of age pursuant to section 30.00 of the penal law, then the fami-
   37  ly  court  shall  have  exclusive  jurisdiction  over  such  proceeding.
   38  Notwithstanding a complainant's election to proceed in family court, the
   39  criminal court shall not be divested of jurisdiction to  hear  a  family
   40  offense  proceeding pursuant to this section. For purposes of this arti-
   41  cle, "disorderly conduct" includes disorderly conduct not  in  a  public
   42  place.    For  purposes  of this article, "members of the same family or
   43  household" shall mean the following:
   44    (a) persons related by consanguinity or affinity;
   45    (b) persons legally married to one another;
   46    (c) persons formerly married to one another regardless of whether they
   47  still reside in the same household;
   48    (d) persons who have a child in  common  regardless  of  whether  such
   49  persons have been married or have lived together at any time; [and]
   50    (e)  persons  who are not related by consanguinity or affinity and who
   51  are or have been in an intimate relationship regardless of whether  such
   52  persons  have lived together at any time. Factors the court may consider
   53  in determining whether a  relationship  is  an  "intimate  relationship"
   54  include  but  are  not  limited  to: the nature or type of relationship,
   55  regardless of whether the relationship is sexual in nature; the frequen-
   56  cy of interaction between the persons; and the duration of the relation-
       A. 6862                             3
    1  ship. Neither a casual acquaintance nor ordinary fraternization  between
    2  two  individuals  in  business  or  social  contexts  shall be deemed to
    3  constitute an "intimate relationship"; AND
    4    (F)  PERSONS  RESIDING  TOGETHER  CONTINUALLY OR AT REGULAR INTERVALS,
    5  CURRENTLY OR IN THE PAST.
    6    S 3. The penal law is amended by adding  three  new  sections  120.26,
    7  120.27 and 120.28 to read as follows:
    8  S 120.26 DOMESTIC ASSAULT IN THE SECOND DEGREE.
    9    A PERSON IS GUILTY OF DOMESTIC ASSAULT IN THE SECOND DEGREE WHEN, WITH
   10  INTENT TO CAUSE PHYSICAL INJURY TO ANOTHER PERSON WHO IS A MEMBER OF THE
   11  SAME  FAMILY OR HOUSEHOLD AS SUCH PERSON, HE OR SHE CAUSES TO SUCH OTHER
   12  PERSON OR TO A THIRD PERSON, PHYSICAL PAIN AND (1) A VISIBLE OR PALPABLE
   13  MARK, OR (2) A LACERATION.
   14    DOMESTIC ASSAULT IN THE SECOND DEGREE IS A CLASS A MISDEMEANOR.
   15  S 120.27 DOMESTIC ASSAULT IN THE FIRST DEGREE.
   16    A PERSON IS GUILTY OF DOMESTIC ASSAULT IN THE FIRST DEGREE WHEN:
   17    1. WITH INTENT TO CAUSE PHYSICAL INJURY TO ANOTHER  PERSON  WHO  IS  A
   18  MEMBER  OF THE SAME FAMILY OR HOUSEHOLD AS SUCH PERSON, HE OR SHE CAUSES
   19  SUCH INJURY TO SUCH OTHER PERSON OR TO A THIRD PERSON; OR
   20    2. HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO ANOTHER  PERSON  WHO
   21  IS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS SUCH PERSON; OR
   22    3.  WITH  CRIMINAL  NEGLIGENCE,  HE  OR  SHE CAUSES PHYSICAL INJURY TO
   23  ANOTHER PERSON WHO IS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD  AS  SUCH
   24  PERSON BY MEANS OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT.
   25    DOMESTIC ASSAULT IN THE FIRST DEGREE IS A CLASS E FELONY.
   26  S 120.28 DOMESTIC ASSAULT; DEFINITION OF TERM.
   27    FOR  PURPOSES  OF SECTIONS 120.26 AND 120.27 OF THIS ARTICLE, A PERSON
   28  IS A "MEMBER OF THE SAME FAMILY OR HOUSEHOLD"  AS  ANOTHER  PERSON  ONLY
   29  WHEN SUCH PERSONS ARE:
   30    1. RELATED BY CONSANGUINITY OR AFFINITY;
   31    2. LEGALLY MARRIED TO ONE ANOTHER;
   32    3. FORMERLY MARRIED TO ONE ANOTHER;
   33    4.  PERSONS  WHO  HAVE  A  CHILD IN COMMON, REGARDLESS OF WHETHER SUCH
   34  PERSONS HAVE BEEN MARRIED OR HAVE LIVED TOGETHER AT ANY TIME; OR
   35    5. PERSONS RESIDING TOGETHER  CONTINUALLY  OR  AT  REGULAR  INTERVALS,
   36  CURRENTLY OR IN THE PAST.
   37    S  4.  Subdivision  2 of section 510.30 of the criminal procedure law,
   38  subparagraph (v) of paragraph (a) as amended by chapter 920 of the  laws
   39  of  1982  and  subparagraphs  (vi), (vii) and (viii) of paragraph (a) as
   40  renumbered by chapter 447 of the laws of 1977, is  amended  to  read  as
   41  follows:
   42    2.    To  the  extent that the issuance of an order of recognizance or
   43  bail and the terms thereof are matters of discretion rather than of law,
   44  an application is determined on the basis of the following  factors  and
   45  criteria:
   46    (a)    With respect to any principal, the court must consider the kind
   47  and degree of control or restriction that is  necessary  to  secure  his
   48  court  attendance  when required.  In determining that matter, the court
   49  must, on the basis of available  information,  consider  and  take  into
   50  account:
   51    (i)    The principal's character, reputation, habits and mental condi-
   52  tion, INCLUDING ANY HISTORY OF VIOLENT ACTS OR THREATS OF VIOLENT ACTS;
   53    (ii)  His OR HER employment and financial resources; and
   54    (iii)  His OR HER family ties, INCLUDING ANY HISTORY OF  VIOLENT  ACTS
   55  OR  THREATS OF VIOLENT ACTS AGAINST FAMILY OR HOUSEHOLD MEMBERS, and the
   56  length of his OR HER residence if any in the community; and
       A. 6862                             4
    1    (iv)  His OR HER criminal record if any; and
    2    (v)    His OR HER record of previous adjudication as a juvenile delin-
    3  quent, as retained pursuant to section 354.2 of the  family  court  act,
    4  or, of pending cases where fingerprints are retained pursuant to section
    5  306.1 of such act, or a youthful offender, if any; and
    6    (vi)  His OR HER previous record if any in responding to court appear-
    7  ances  when  required or with respect to flight to avoid criminal prose-
    8  cution; and
    9    (vii) A RECORD OF ANY ORDERS OF PROTECTION THAT WERE PREVIOUSLY ISSUED
   10  AGAINST THE PRINCIPAL; AND
   11    (VIII) A RECORD OF ANY VIOLATION OF AN ORDER OF PROTECTION OR  DISOBE-
   12  DIENCE OF AN ORDER, MANDATE OR PROCESS OF ANY COURT; AND
   13    (IX)  If  he OR SHE is a defendant, the weight of the evidence against
   14  him OR HER in the pending criminal action and any other factor  indicat-
   15  ing  probability  or  improbability of conviction; or, in the case of an
   16  application for bail or recognizance pending appeal, the merit  or  lack
   17  of merit of the appeal; and
   18    [(viii)] (X) If he OR SHE is a defendant, the sentence which may be or
   19  has been imposed upon conviction.
   20    (b)   Where the principal is a defendant-appellant in a pending appeal
   21  from a judgment of conviction, the court must also consider the  likeli-
   22  hood  of  ultimate  reversal of the judgment.   A determination that the
   23  appeal is palpably without merit alone justifies, but does not  require,
   24  a  denial  of the application, regardless of any determination made with
   25  respect to the factors specified in paragraph (a) OF THIS SUBDIVISION.
   26    S 5. This act shall take effect on the first of November next succeed-
   27  ing the date on which it shall have become a law.
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