Authorizes courts to hold evidentiary hearings for a temporary order of protection in certain circumstances; grants superior court judges the authority to issue a temporary order of protection when an action is pending in a local criminal court in certain circumstances.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3750B
SPONSOR: Septimo TITLE OF BILL:
An act to amend the criminal procedure law, in relation to the issuance
of temporary orders of protection when an action is pending in a local
criminal court
PURPOSE OR GENERAL IDEA OF BILL:
This bill will add a section to the Criminal Procedure Law that will
codify recent case law enabling accused parties in criminal proceedings
to request a hearing when temporary orders of protection are issued
against them. These temporary orders can cause homelessness, job loss,
immigration consequences, and family separation. This change will give
judges the opportunity to assess information and determine whether
temporary orders are necessary to protect the parties.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill adds Section 530.15 of the Criminal Procedure Law.
Sections 2 of the bill amends subdivision 2 of Section 530.30 of the
Criminal Procedure Law.
Section 3 sets the effective date.
JUSTIFICATION:
During New York criminal court arraignments, judges issue full temporary
orders of protection ("TOPs") as a matter of course in nearly every case
where there is a complaining witness. These orders require the person
charged to stay away from the home and place of business of the
complaining witness. Prosecutors ask for TOPs based almost entirely on
the representation of law enforcement officers who act with incomplete
information and biases. As a result, TOPs are often issued against
survivors who were protecting themselves, teenagers and young people
that get into altercations with parents regardless of who is the initial
aggressor, and LGBTQ+ people and populations who present as "other" even
when they are defending themselves. TOPs typically last until the under-
lying case resolves-a process that can take months or even years- and
many are issued against the wishes of the protected parties. Some are
even issued against both or multiple parties.
Unlike many other states and the District of Columbia, New York does not
have a codified process for accused persons or protected parties to be
heard when these orders are issued. Recognizing this, the New York
Appellate Division, First Department recently ruled in Matter of Craw-
ford v. Ally (June 24th, 2021), that when a temporary stay-away order is
issued which implicates a defendant's due process rights, the Criminal
Court should conduct a "prompt evidentiary hearing," thereafter. The
case bears the name of Shamika Crawford who was rendered homeless by a
stay away order--removed from her own New York City Housing Authority
apartment and separated from her children for nearly three months. This
hearing would offer an opportunity for a judge to examine the facts more
closely than they could at arraignment to decide if the order should
remain in place, or be limited. However, the Crawford decision leaves
numerous details open to interpretation by the courts, and as a result
the ruling has been undermined and applied in an inconsistent manner.
The Promoting Pre-Trial (PromPT) Stability Act codifies Crawford's hold-
ing into law while clarifying key details of hearings. This bill ensures
that due process is complied with and that there is uniform application
of the decision across the State. It allows judges to respond to the
Unique needs of a particular case or relationship, while also allowing
families to work out their differences, and teenagers and young adults
to stay in their family's homes. Importantly, judges will make decisions
as to the propriety of stay-away orders based upon more complete infor-
mation than they have at arraignment.
Notably, this bill will not lead to the vacatur of all TOPs. Prosecu-
tors are still authorized to ask for TOPs, and judges will have
discretion to issue these orders, or modify them, when they are appro-
priate and necessary for the safety of the protected party. Further,
this legislation only concerns criminal court TOPs, parties can continue
to petition family court for civil orders of protection. This bill does
not require protected parties to testify in these hearings, but it does
give them an opportunity to be heard if they choose. Further, this bill
ensures hearings occur expeditiously so that accused parties can avoid
significant harms caused by improper TOPs.
PRIOR LEGISLATIVE HISTORY:
2019-2020 - A. 7633 Referred to Codes
2021-2022 - A. 4558A Referred to Codes
S. 2832B Referred to Codes
FISCAL IMPLICATIONS:
None to the State
EFFECTIVE DATE:
This bill takes effect immediately.
STATE OF NEW YORK
________________________________________________________________________
3750--B
2023-2024 Regular Sessions
IN ASSEMBLY
February 7, 2023
___________
Introduced by M. of A. SEPTIMO, HEVESI, JACKSON, SEAWRIGHT, KELLES,
GONZALEZ-ROJAS, KIM, BURGOS, EPSTEIN, MAMDANI, DICKENS, SIMON, ZEBROW-
SKI, FORREST, GALLAGHER, JACOBSON, WALKER, RAGA, REYES, PRETLOW,
LEVENBERG -- read once and referred to the Committee on Codes --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee -- recommitted to the Committee on Codes
in accordance with Assembly Rule 3, sec. 2 -- committee discharged,
bill amended, ordered reprinted as amended and recommitted to said
committee
AN ACT to amend the criminal procedure law, in relation to the issuance
of temporary orders of protection when an action is pending in a local
criminal court
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 530.15 to read as follows:
3 § 530.15 Temporary order of protection hearing.
4 Where a court has issued a temporary order of protection pursuant to
5 subdivision one of section 530.12 of this article or subdivision one of
6 section 530.13 of this article, upon application of a defendant, the
7 court shall hold an evidentiary hearing where the prosecutor must show,
8 by an articulated reasonable basis, that the temporary order of
9 protection is likely to achieve its purpose in the absence of such a
10 condition, of protecting a designated witness or complainant from intim-
11 idation or injury.
12 (a) The defendant shall be entitled to such hearing within five busi-
13 ness days of requesting such hearing. Notice must be given by the court
14 to both parties, as well as the party protected by the order of
15 protection, in advance of the hearing. Such notice shall detail the
16 rights of the protected party with respect to the hearing and describe
17 the different types of temporary orders of protection available.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06035-08-4
A. 3750--B 2
1 (b) At the hearing, the prosecution must present relevant witness
2 testimony, or admissible evidence, subject to cross-examination, though
3 the witness need not be the party protected by the order. Hearsay is
4 admissible.
5 (c) The court shall state on the record or in writing its findings of
6 facts and conclusions of law, the reasons for maintaining, vacating, or
7 modifying the temporary order of protection, and, where applicable, why
8 the temporary order of protection is necessary to achieve its purpose in
9 the absence of such a condition, of protecting a designated witness or
10 complainant from intimidation or injury.
11 § 2. Section 530.30 of the criminal procedure law, the section heading
12 and subdivisions 1 and 2 as amended by section 17 of part JJJ of chapter
13 59 of the laws of 2019, the closing paragraph of subdivision 1 as
14 amended by section 7 of subpart A of part VV of chapter 56 of the laws
15 of 2023, is amended to read as follows:
16 § 530.30 Order of recognizance, release under non-monetary conditions or
17 bail or issuance of a temporary order of protection; by supe-
18 rior court judge when action is pending in local criminal
19 court.
20 1. When a criminal action is pending in a local criminal court, other
21 than one consisting of a superior court judge sitting as such, a judge
22 of a superior court holding a term thereof in the county, upon applica-
23 tion of a defendant, may order recognizance, release under non-monetary
24 conditions or, where authorized, bail when such local criminal court:
25 (a) Lacks authority to issue such an order, pursuant to the relevant
26 provisions of section 530.20 of this article; or
27 (b) Has denied an application for recognizance, release under non-mon-
28 etary conditions or bail; or
29 (c) Has fixed bail, where authorized, which is excessive; or
30 (d) Has set a securing order of release under non-monetary conditions
31 which are more restrictive than necessary to reasonably assure the
32 defendant's return to court.
33 In such case, such superior court judge may vacate the order of such
34 local criminal court and release the defendant on recognizance or under
35 non-monetary conditions, or where authorized, fix bail in a lesser
36 amount or in a less burdensome form, or order non-monetary conditions in
37 conjunction with fixing bail, including fixing bail in a lesser amount
38 or in a less burdensome form, the determination for which shall be made
39 in accordance with section 510.10 of this title. The court shall explain
40 the basis for its determination and choice of securing order on the
41 record or in writing.
42 2. When a criminal action is pending in a local criminal court, other
43 than one consisting of a superior court judge sitting as such, and the
44 local criminal court has denied a request to modify or limit a temporary
45 order of protection issued pursuant to subdivision one of section 530.12
46 of this article or subdivision one of section 530.13 of this article,
47 upon application of a defendant, a judge of the superior court holding a
48 term thereof in the county shall review the determination of the local
49 criminal court de novo and may vacate or modify the order of the local
50 criminal court. A court's failure to comply with the requirements of
51 section 530.15 of this article is reviewable under this section.
52 3. Notwithstanding the provisions of subdivision one or two of this
53 section, when the defendant is charged with a felony in a local criminal
54 court, a superior court judge may not order recognizance, release under
55 non-monetary conditions or, where authorized, bail, or vacate or modify
56 a temporary order of protection unless and until the district attorney
A. 3750--B 3
1 has had an opportunity to be heard in the matter and such judge and
2 counsel for the defendant have been furnished with a report as described
3 in subparagraph (ii) of paragraph (b) of subdivision two of section
4 530.20 of this article.
5 [3.] 4. Not more than one application may be made pursuant to each
6 subdivision of this section.
7 § 3. This act shall take effect immediately.
