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
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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-
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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
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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.