Bill Text: NY S00375 | 2013-2014 | General Assembly | Introduced
Bill Title: Creates the crimes of domestic abuse in the first, second and third degrees; creates a judicial diversion program for domestic abuse defendants.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-08 - REFERRED TO CODES [S00375 Detail]
Download: New_York-2013-S00375-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
375
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sen. KENNEDY -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to the crime of domestic
abuse; and to amend the criminal procedure law, in relation to a judi-
cial diversion program for domestic abuse defendants
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
2 120.80, 120.83 and 120.85 to read as follows:
3 S 120.80 DOMESTIC ABUSE IN THE THIRD DEGREE.
4 A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE THIRD DEGREE WHEN, WITH
5 INTENT TO HARASS, ANNOY, OR ALARM HIS OR HER SPOUSE, FORMER SPOUSE,
6 FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER, HE OR SHE
7 STRIKES, SHOVES, KICKS, OR OTHERWISE SUBJECTS SUCH PERSON TO PHYSICAL
8 CONTACT OR ATTEMPTS OR THREATENS TO DO THE SAME.
9 FOR PURPOSES OF THIS SECTION, "SPOUSE" SHALL MEAN PERSONS LEGALLY
10 MARRIED TO ONE ANOTHER, "FORMER SPOUSE" SHALL MEAN PERSONS FORMERLY
11 MARRIED TO ONE ANOTHER REGARDLESS OF WHETHER THEY STILL RESIDE IN THE
12 SAME HOUSEHOLD, "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN PERSONS
13 WHO HAVE A CHILD IN COMMON REGARDLESS OF WHETHER SUCH PERSONS HAVE BEEN
14 MARRIED OR HAVE LIVED TOGETHER, AND "DOMESTIC PARTNER" SHALL MEAN
15 PERSONS WHO ARE LIVING OR HAVE LIVED TOGETHER FOR AN EXTENDED DURATION
16 IN AN INTIMATE RELATIONSHIP MARKED BY SEXUAL, PHYSICAL, OR FINANCIAL
17 INTERDEPENDENCE.
18 DOMESTIC ABUSE IN THE THIRD DEGREE IS A CLASS B MISDEMEANOR.
19 S 120.83 DOMESTIC ABUSE IN THE SECOND DEGREE.
20 A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE SECOND DEGREE WHEN WITH
21 INTENT TO HARASS, ANNOY, OR ALARM HIS OR HER SPOUSE, FORMER SPOUSE,
22 FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER, AS DEFINED IN
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD02441-01-3
S. 375 2
1 SECTION 120.80 OF THIS ARTICLE, HE OR SHE CAUSES SUCH PERSON PHYSICAL
2 INJURY.
3 DOMESTIC ABUSE IN THE SECOND DEGREE IS A CLASS A MISDEMEANOR.
4 S 120.85 DOMESTIC ABUSE IN THE FIRST DEGREE.
5 A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE FIRST DEGREE WHEN:
6 1. (A) WITH INTENT TO CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE,
7 FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER,
8 AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, HE OR SHE CAUSES SUCH
9 INJURY TO SUCH PERSON OR TO A THIRD PERSON; OR
10 (B) 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 AS DEFINED IN SECTION 120.80 OF THIS ARTICLE; OR
13 (C) 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, AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, BY MEANS
16 OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; OR
17 2. HE OR SHE COMMITS THE CRIME OF DOMESTIC ABUSE IN THE SECOND DEGREE
18 AND HAS PREVIOUSLY BEEN CONVICTED OF THE CRIME OF DOMESTIC ABUSE IN ANY
19 DEGREE AS DEFINED IN THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS.
20 DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY.
21 S 2. The criminal procedure law is amended by adding a new article 217
22 to read as follows:
23 ARTICLE 217
24 JUDICIAL DIVERSION PROGRAM FOR DOMESTIC ABUSE DEFENDANTS
25 SECTION 217.00 DEFINITIONS.
26 217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES.
27 S 217.00 DEFINITIONS.
28 THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
29 1. "ELIGIBLE DEFENDANT" SHALL MEAN ANY PERSON WHO STANDS CHARGED WITH
30 DOMESTIC ABUSE AS DEFINED IN SECTIONS 120.80, 120.83 AND 120.85 OF THE
31 PENAL LAW, PROVIDED, HOWEVER, A DEFENDANT IS NOT AN "ELIGIBLE DEFENDANT"
32 IF HE OR SHE:
33 (A) WITHIN THE PRECEDING TEN YEARS, EXCLUDING ANY TIME DURING WHICH
34 THE OFFENDER WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMIS-
35 SION OF THE PREVIOUS OFFENSE AND THE TIME OF COMMISSION OF THE PRESENT
36 OFFENSE, HAS PREVIOUSLY BEEN CONVICTED OF: (I) A VIOLENT FELONY OFFENSE
37 AS DEFINED IN SECTION 70.02 OF THE PENAL LAW OR (II) ANY OTHER OFFENSE
38 FOR WHICH A MERIT TIME ALLOWANCE IS NOT AVAILABLE PURSUANT TO SUBPARA-
39 GRAPH (II) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED
40 THREE OF THE CORRECTION LAW; OR
41 (B) HAS PREVIOUSLY BEEN ADJUDICATED A SECOND VIOLENT FELONY OFFENDER
42 PURSUANT TO SECTION 70.04 OF THE PENAL LAW OR A PERSISTENT VIOLENT FELO-
43 NY OFFENDER PURSUANT TO SECTION 70.08 OF THE PENAL LAW.
44 2. "DOMESTIC VIOLENCE PROGRAM" SHALL MEAN A PROGRAM WHICH IS OPERATED
45 BY A PUBLIC OR NOT-FOR-PROFIT ORGANIZATION FOR THE PURPOSE OF PROVIDING
46 DOMESTIC VIOLENCE PREVENTION WHOSE GOAL IS TO HELP ELIGIBLE DEFENDANTS
47 END ABUSIVE BEHAVIOR.
48 S 217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES.
49 1. AT ANY TIME AFTER THE ARRAIGNMENT OF AN ELIGIBLE DEFENDANT, BUT
50 PRIOR TO THE ENTRY OF A PLEA OF GUILTY OR THE COMMENCEMENT OF TRIAL, THE
51 COURT MAY DETERMINE THAT AN ELIGIBLE DEFENDANT SHOULD BE OFFERED JUDI-
52 CIAL DIVERSION IN A DOMESTIC VIOLENCE PROGRAM. AN ELIGIBLE DEFENDANT MAY
53 DECLINE TO PARTICIPATE IN SUCH A PROGRAM AT ANY TIME. PRIOR TO THE
54 COURT'S ISSUING AN ORDER GRANTING JUDICIAL DIVERSION, THE ELIGIBLE
55 DEFENDANT SHALL BE REQUIRED TO ENTER A PLEA OF GUILTY TO THE CHARGE OR
56 CHARGES; PROVIDED, HOWEVER, THAT NO GUILTY PLEA SHALL BE REQUIRED WHEN:
S. 375 3
1 (A) THE PEOPLE AND THE COURT CONSENT TO THE ENTRY OF SUCH AN ORDER
2 WITHOUT A PLEA OF GUILTY; OR
3 (B) BASED ON A FINDING OF EXCEPTIONAL CIRCUMSTANCES, THE COURT DETER-
4 MINES THAT A PLEA OF GUILTY SHALL NOT BE REQUIRED. FOR PURPOSES OF THIS
5 SUBDIVISION, EXCEPTIONAL CIRCUMSTANCES EXIST WHEN, REGARDLESS OF THE
6 ULTIMATE DISPOSITION OF THE CASE, THE ENTRY OF A PLEA OF GUILTY IS LIKE-
7 LY TO RESULT IN SEVERE COLLATERAL CONSEQUENCES.
8 2. THE ELIGIBLE DEFENDANT SHALL AGREE ON THE RECORD OR IN WRITING TO
9 ABIDE BY THE RELEASE CONDITIONS SET BY THE COURT, WHICH, SHALL INCLUDE:
10 PARTICIPATION IN A SPECIFIED DOMESTIC VIOLENCE PROGRAM; PERIODIC COURT
11 APPEARANCES; AND A REQUIREMENT THAT THE DEFENDANT REFRAIN FROM ENGAGING
12 IN CRIMINAL BEHAVIORS.
13 3. UPON AN ELIGIBLE DEFENDANT'S AGREEMENT TO ABIDE BY THE CONDITIONS
14 SET BY THE COURT, THE COURT SHALL ISSUE A SECURING ORDER PROVIDING FOR
15 BAIL OR RELEASE ON THE DEFENDANT'S OWN RECOGNIZANCE AND CONDITIONING ANY
16 RELEASE UPON THE AGREED UPON CONDITIONS. THE DOMESTIC VIOLENCE PROGRAM
17 SHALL BEGIN AS SPECIFIED BY THE COURT AND AS SOON AS PRACTICABLE AFTER
18 THE DEFENDANT'S RELEASE. IN THE EVENT THAT A DOMESTIC VIOLENCE PROGRAM
19 IS NOT IMMEDIATELY AVAILABLE OR BECOMES UNAVAILABLE DURING THE COURSE OF
20 THE DEFENDANT'S PARTICIPATION IN THE JUDICIAL DIVERSION PROGRAM, THE
21 COURT MAY RELEASE THE DEFENDANT PURSUANT TO THE SECURING ORDER.
22 4. DURING THE PERIOD OF A DEFENDANT'S PARTICIPATION IN THE JUDICIAL
23 DIVERSION PROGRAM, THE COURT SHALL RETAIN JURISDICTION OF THE DEFENDANT.
24 THE COURT MAY REQUIRE THE DEFENDANT TO APPEAR IN COURT AT ANY TIME TO
25 ENABLE THE COURT TO MONITOR THE DEFENDANT'S PROGRESS IN THE PROGRAM. THE
26 COURT SHALL PROVIDE NOTICE, REASONABLE UNDER THE CIRCUMSTANCES, TO THE
27 PEOPLE, THE DOMESTIC VIOLENCE PROGRAM PROVIDER, THE DEFENDANT AND THE
28 DEFENDANT'S COUNSEL WHENEVER IT ORDERS OR OTHERWISE REQUIRES THE APPEAR-
29 ANCE OF THE DEFENDANT IN COURT. FAILURE TO APPEAR AS REQUIRED WITHOUT
30 REASONABLE CAUSE THEREFOR SHALL CONSTITUTE A VIOLATION OF THE CONDITIONS
31 OF THE COURT'S AGREEMENT WITH THE DEFENDANT.
32 5. UPON THE COURT'S DETERMINATION THAT THE DEFENDANT HAS SUCCESSFULLY
33 COMPLETED THE DOMESTIC VIOLENCE PROGRAM AND HAS OTHERWISE SATISFIED THE
34 CONDITIONS REQUIRED FOR SUCCESSFUL COMPLETION OF THE JUDICIAL DIVERSION
35 PROGRAM, THE COURT SHALL COMPLY WITH THE TERMS AND CONDITIONS IT SET FOR
36 FINAL DISPOSITION WHEN IT ACCEPTED THE DEFENDANT'S AGREEMENT TO PARTIC-
37 IPATE IN THE JUDICIAL DIVERSION PROGRAM. SUCH DISPOSITION MAY INCLUDE,
38 BUT IS NOT LIMITED TO:
39 (A) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION
40 SUPERVISION AND, UPON THE DEFENDANT'S SUCCESSFUL COMPLETION OF THE
41 INTERIM PROBATION SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY
42 OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA
43 AND DISMISSING THE INDICTMENT; OR
44 (B) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION
45 SUPERVISION AND, UPON SUCCESSFUL COMPLETION OF THE INTERIM PROBATION
46 SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW,
47 PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA, ENTER A
48 GUILTY PLEA TO A MISDEMEANOR OFFENSE AND SENTENCING THE DEFENDANT AS
49 PROMISED IN THE PLEA AGREEMENT, WHICH MAY INCLUDE A PERIOD OF PROBATION
50 SUPERVISION PURSUANT TO SECTION 65.00 OF THE PENAL LAW; OR
51 (C) ALLOWING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA AND
52 DISMISSING THE INDICTMENT.
53 S 3. This act shall take effect on the ninetieth day after it shall
54 have become a law.
