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.