Bill Text: NY A07208 | 2013-2014 | General Assembly | Introduced
Bill Title: Authorizes criminal and family courts to issue lifetime orders of protection in the presence of aggravating circumstances after a hearing.
Spectrum: Slight Partisan Bill (Democrat 18-8)
Status: (Introduced - Dead) 2014-06-09 - held for consideration in codes [A07208 Detail]
Download: New_York-2013-A07208-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7208
2013-2014 Regular Sessions
I N A S S E M B L Y
May 7, 2013
___________
Introduced by M. of A. GJONAJ -- 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 the allowing for lifetime orders of protection for aggra-
vating circumstances
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The opening paragraph of subdivision 5 of section 530.12 of
2 the criminal procedure law, as amended by section 1 of chapter 9 of the
3 laws of 2011, is amended to read as follows:
4 Upon sentencing on a conviction for any crime or violation between
5 spouses, between a parent and child, or between members of the same
6 family or household as defined in subdivision one of section 530.11 of
7 this article, the court may in addition to any other disposition,
8 including a conditional discharge or youthful offender adjudication,
9 enter an order of protection. Where a temporary order of protection was
10 issued, the court shall state on the record the reasons for issuing or
11 not issuing an order of protection. The duration of such an order shall
12 be fixed by the court and: (A) in the case of a felony conviction, shall
13 not exceed the greater of: (i) eight years from the date of such
14 sentencing, or (ii) eight years from the date of the expiration of the
15 maximum term of an indeterminate or the term of a determinate sentence
16 of imprisonment actually imposed; or (B) in the case of a conviction for
17 a class A misdemeanor, shall not exceed the greater of: (i) five years
18 from the date of such sentencing, or (ii) five years from the date of
19 the expiration of the maximum term of a definite or intermittent term
20 actually imposed; or (C) in the case of a conviction for any other
21 offense, shall not exceed the greater of: (i) two years from the date of
22 sentencing, or (ii) two years from the date of the expiration of the
23 maximum term of a definite or intermittent term actually imposed. For
24 purposes of determining the duration of an order of protection entered
25 pursuant to this subdivision, a conviction shall be deemed to include a
26 conviction that has been replaced by a youthful offender adjudication.
27 IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10380-03-3
A. 7208 2
1 SION FIVE-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF
2 PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS
3 SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF PROTECTION. THE
4 COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE
5 ORDER OF PROTECTION. In addition to any other conditions, such an order
6 may require the defendant:
7 S 2. The opening paragraph of subdivision 5 of section 530.12 of the
8 criminal procedure law, as amended by section 2 of chapter 9 of the laws
9 of 2011, is amended to read as follows:
10 Upon sentencing on a conviction for any crime or violation between
11 spouses, between a parent and child, or between members of the same
12 family or household as defined in subdivision one of section 530.11 of
13 this article, the court may in addition to any other disposition,
14 including a conditional discharge or youthful offender adjudication,
15 enter an order of protection. Where a temporary order of protection was
16 issued, the court shall state on the record the reasons for issuing or
17 not issuing an order of protection. The duration of such an order shall
18 be fixed by the court and, in the case of a felony conviction, shall not
19 exceed the greater of: (i) five years from the date of such sentencing,
20 or (ii) three years from the date of the expiration of the maximum term
21 of an indeterminate sentence of imprisonment actually imposed; or in the
22 case of a conviction for a class A misdemeanor, shall not exceed three
23 years from the date of such sentencing; or in the case of a conviction
24 for any other offense, shall not exceed one year from the date of
25 sentencing. For purposes of determining the duration of an order of
26 protection entered pursuant to this subdivision, a conviction shall be
27 deemed to include a conviction that has been replaced by a youthful
28 offender adjudication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES
29 AS DEFINED IN SUBDIVISION FIVE-A OF THIS SECTION EXIST, THE COURT MAY
30 ENTER AN ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE
31 RELEVANT TERMS SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF
32 PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE
33 STATED UPON THE ORDER OF PROTECTION. In addition to any other condi-
34 tions, such an order may require the defendant:
35 S 3. Section 530.12 of the criminal procedure law is amended by adding
36 a new subdivision 5-a to read as follows:
37 5-A. FOR THE PURPOSES OF SUBDIVISION FIVE OF THIS SECTION, "AGGRAVAT-
38 ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJU-
39 RY TO THE COMPLAINANT CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS
40 INSTRUMENT AGAINST THE COMPLAINANT BY THE DEFENDANT, A HISTORY OF
41 REPEATED VIOLATIONS OF PRIOR ORDERS OF PROTECTION BY THE DEFENDANT,
42 PRIOR CONVICTIONS FOR CRIMES AGAINST THE COMPLAINANT BY THE DEFENDANT OR
43 THE EXPOSURE OF ANY FAMILY OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE
44 DEFENDANT, AND LIKE INCIDENTS, BEHAVIORS, AND OCCURRENCES WHICH THE
45 COURT DETERMINES, AFTER A HEARING, CONSTITUTE AN IMMEDIATE AND ONGOING
46 DANGER TO THE COMPLAINANT OR ANY MEMBER OF THE COMPLAINANT'S FAMILY OR
47 HOUSEHOLD. AFTER A DISPOSITIONAL HEARING IS HELD AND THE COURT FINDS BY
48 A FAIR PREPONDERANCE OF THE EVIDENCE THAT AGGRAVATING CIRCUMSTANCES
49 EXIST, THE COURT MAY ISSUE AN ORDER OF PROTECTION FOR UP TO THE LIFETIME
50 OF THE VICTIM, THE VICTIM'S FAMILY, OR MEMBERS OF THE VICTIM'S HOUSE-
51 HOLD.
52 S 4. The closing paragraph of subdivision 6 of section 530.12 of the
53 criminal procedure law, as added by chapter 222 of the laws of 1994, is
54 amended to read as follows:
55 [Such] WHEN AN ORDER OF PROTECTION IS OF FIXED DURATION, THE order of
56 protection shall plainly state the date that such order expires, AND
A. 7208 3
1 WHERE THE ORDER IS OF LIFETIME DURATION, THE ORDER SHALL CLEARLY SO
2 STATE.
3 S 5. The opening paragraph of subdivision 4 of section 530.13 of the
4 criminal procedure law, as amended by section 3 of chapter 9 of the laws
5 of 2011, is amended to read as follows:
6 Upon sentencing on a conviction for any offense, where the court has
7 not issued an order of protection pursuant to section 530.12 of this
8 article, the court may, in addition to any other disposition, including
9 a conditional discharge or youthful offender adjudication, enter an
10 order of protection. Where a temporary order of protection was issued,
11 the court shall state on the record the reasons for issuing or not issu-
12 ing an order of protection. The duration of such an order shall be fixed
13 by the court and; (A) in the case of a felony conviction, shall not
14 exceed the greater of: (i) eight years from the date of such sentencing,
15 or (ii) eight years from the date of the expiration of the maximum term
16 of an indeterminate or the term of a determinate sentence of imprison-
17 ment actually imposed; or (B) in the case of a conviction for a class A
18 misdemeanor, shall not exceed the greater of: (i) five years from the
19 date of such sentencing, or (ii) five years from the date of the expira-
20 tion of the maximum term of a definite or intermittent term actually
21 imposed; or (C) in the case of a conviction for any other offense, shall
22 not exceed the greater of: (i) two years from the date of sentencing, or
23 (ii) two years from the date of the expiration of the maximum term of a
24 definite or intermittent term actually imposed. For purposes of deter-
25 mining the duration of an order of protection entered pursuant to this
26 subdivision, a conviction shall be deemed to include a conviction that
27 has been replaced by a youthful offender adjudication. IF THE COURT
28 FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVISION FOUR-A OF
29 THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF PROTECTION FOR A
30 FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR
31 MAY ENTER UP TO A LIFETIME ORDER OF PROTECTION. THE COURT'S FINDING OF
32 AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE ORDER OF PROTECTION.
33 In addition to any other conditions such an order may require that the
34 defendant:
35 S 6. The opening paragraph of subdivision 4 of section 530.13 of the
36 criminal procedure law, as amended by section 4 of chapter 9 of the laws
37 of 2011, is amended to read as follows:
38 Upon sentencing on a conviction for any offense, where the court has
39 not issued an order of protection pursuant to section 530.12 of this
40 article, the court may, in addition to any other disposition, including
41 a conditional discharge or youthful offender adjudication, enter an
42 order of protection. Where a temporary order of protection was issued,
43 the court shall state on the record the reasons for issuing or not issu-
44 ing an order of protection. The duration of such an order shall be fixed
45 by the court and, in the case of a felony conviction, shall not exceed
46 the greater of: (i) five years from the date of such sentencing, or (ii)
47 three years from the date of the expiration of the maximum term of an
48 indeterminate sentence of imprisonment actually imposed; or in the case
49 of a conviction for a class A misdemeanor, shall not exceed three years
50 from the date of such sentencing; or in the case of a conviction for any
51 other offense, shall not exceed one year from the date of sentencing.
52 For purposes of determining the duration of an order of protection
53 entered pursuant to this subdivision, a conviction shall be deemed to
54 include a conviction that has been replaced by a youthful offender adju-
55 dication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED
56 IN SUBDIVISION FOUR-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN
A. 7208 4
1 ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT
2 TERMS SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF
3 PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE
4 STATED UPON THE ORDER OF PROTECTION. In addition to any other conditions
5 such an order may require that the defendant:
6 S 7. Section 530.13 of the criminal procedure law is amended by adding
7 a new subdivision 4-a to read as follows:
8 4-A. FOR THE PURPOSES OF SUBDIVISION FOUR OF THIS SECTION, "AGGRAVAT-
9 ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
10 TO THE VICTIM CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS INSTRUMENT
11 AGAINST THE VICTIM BY THE DEFENDANT, A HISTORY OF REPEATED VIOLATIONS OF
12 PRIOR ORDERS OF PROTECTION BY THE DEFENDANT, PRIOR CONVICTIONS FOR
13 CRIMES AGAINST THE VICTIM BY THE DEFENDANT OR THE EXPOSURE OF ANY FAMILY
14 OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE DEFENDANT, AND LIKE INCI-
15 DENTS, BEHAVIORS, AND OCCURRENCES WHICH THE COURT DETERMINES, AFTER A
16 HEARING, CONSTITUTE AN IMMEDIATE AND ONGOING DANGER TO THE VICTIM, OR
17 ANY MEMBER OF THE VICTIM'S FAMILY OR HOUSEHOLD. AFTER A DISPOSITIONAL
18 HEARING IS HELD AND THE COURT FINDS BY A FAIR PREPONDERANCE OF THE
19 EVIDENCE THAT AGGRAVATING CIRCUMSTANCES EXIST, THE COURT MAY ISSUE AN
20 ORDER OF PROTECTION FOR UP TO THE LIFETIME OF THE VICTIM, THE VICTIM'S
21 FAMILY, OR MEMBERS OF THE VICTIM'S HOUSEHOLD.
22 S 8. The opening paragraph of section 842 of the family court act, as
23 separately amended by chapters 325 and 341 of the laws of 2010, is
24 amended to read as follows:
25 An order of protection under section eight hundred forty-one of this
26 part shall set forth reasonable conditions of behavior to be observed
27 for a period not in excess of two years by the petitioner or respondent
28 or [for a period not in excess of five years] UP TO A LIFETIME ORDER OF
29 PROTECTION upon (i) a finding by the court on the record of the exist-
30 ence of aggravating circumstances as defined in paragraph (vii) of
31 subdivision (a) of section eight hundred twenty-seven of this article or
32 (ii) a finding by the court on the record that the conduct alleged in
33 the petition is in violation of a valid order of protection. Any finding
34 of aggravating circumstances pursuant to this section shall be stated on
35 the record and upon the order of protection. The court may also, upon
36 motion, extend the order of protection for a reasonable period of time
37 upon a showing of good cause or consent of the parties. The fact that
38 abuse has not occurred during the pendency of an order shall not, in
39 itself, constitute sufficient ground for denying or failing to extend
40 the order. The court must articulate a basis for its decision on the
41 record. The duration of any temporary order shall not by itself be a
42 factor in determining the length or issuance of any final order. Any
43 order of protection issued pursuant to this section shall specify if an
44 order of probation is in effect. Any order of protection issued pursuant
45 to this section may require the petitioner or the respondent:
46 S 9. This act shall take effect immediately provided that the amend-
47 ments to the opening paragraph of subdivision 5 of section 530.12 and
48 the opening paragraph of subdivision 4 of section 530.13 of the criminal
49 procedure law made by sections one and five of this act respectively,
50 shall be subject to the expiration and reversion of such paragraphs,
51 when upon such date the provisions of sections two and six of this act
52 shall take effect.
