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S00638 Summary:

BILL NOS00638A
 
SAME ASSAME AS A00984-A
 
SPONSORKENNEDY
 
COSPNSRPANEPINTO
 
MLTSPNSR
 
Amd 842 & 1056, Fam Ct Act; amd 240, Dom Rel L; amd 530.12, CP L
 
Relates to duration of orders of protection in cases involving domestic violence.
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S00638 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         638--A
 
                               2015-2016 Regular Sessions
 
                    IN SENATE
 
                                       (Prefiled)
 
                                     January 7, 2015
                                       ___________
 
        Introduced  by Sens. KENNEDY, PANEPINTO -- read twice and ordered print-
          ed, and when printed to be committed to the Committee on Children  and
          Families  --  recommitted to the Committee on Children and Families in
          accordance with Senate Rule 6, sec. 8 --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee
 
        AN ACT to amend the family court act, the domestic relations law and the
          criminal procedure law, in relation to orders of protection  in  cases
          involving domestic violence
 
          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 section 842 of  the  family  court
     2  act,  as  amended by chapter 526 of the laws of 2013, is amended to read
     3  as follows:
     4    An order of protection under section eight hundred forty-one  of  this
     5  part  shall  set  forth reasonable conditions of behavior to be observed
     6  for a period not in excess of two years by the petitioner or  respondent
     7  or  for  a  period not in excess of five years upon (i) a finding by the
     8  court on the record of the existence  of  aggravating  circumstances  as
     9  defined  in  paragraph (vii) of subdivision (a) of section eight hundred
    10  twenty-seven of this article; or (ii) a finding  by  the  court  on  the
    11  record  that  the  conduct  alleged in the petition is in violation of a
    12  valid order of protection.   In cases involving  domestic  violence,  an
    13  order  of  protection  shall be observed by the petitioner or respondent
    14  for a period of no less than five  years.  Any  finding  of  aggravating
    15  circumstances pursuant to this section shall be stated on the record and
    16  upon  the  order  of protection. The court may also, upon motion, extend
    17  the order of protection for a reasonable period of time upon  a  showing
    18  of  good  cause  or  consent of the parties. The fact that abuse has not
    19  occurred during the pendency of an order shall not, in  itself,  consti-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD04278-02-6

        S. 638--A                           2
 
     1  tute  sufficient  ground for denying or failing to extend the order. The
     2  court must articulate a basis for its decision on the record. The  dura-
     3  tion of any temporary order shall not by itself be a factor in determin-
     4  ing  the length or issuance of any final order.  Any order of protection
     5  issued pursuant to this section shall specify if an order  of  probation
     6  is  in  effect.  Any order of protection issued pursuant to this section
     7  may require the petitioner or the respondent:
     8    § 2. The opening paragraph of subdivision 1 of  section  1056  of  the
     9  family  court  act,  as  amended  by chapter 526 of the laws of 2013, is
    10  amended to read as follows:
    11    The court may make an order of protection in assistance or as a condi-
    12  tion of any other order made under this part. Such order  of  protection
    13  shall remain in effect concurrently with, shall expire no later than the
    14  expiration  date  of,  and may be extended concurrently with, such other
    15  order made under this part, except as provided in  subdivision  four  of
    16  this  section.  The  order of protection may set forth reasonable condi-
    17  tions of behavior to be observed for a specified time by a person who is
    18  before the court and is a parent or a person legally responsible for the
    19  child's care or the spouse of the parent or other person legally respon-
    20  sible for the child's care,  or  both.    In  cases  involving  domestic
    21  violence,  an order of protection shall be observed by the petitioner or
    22  respondent for a period of no less than five years. Such  an  order  may
    23  require any such person
    24    §  3. The opening paragraph of paragraph a of subdivision 3 of section
    25  240 of the domestic relations law, as amended by chapter 526 of the laws
    26  of 2013, is amended to read as follows:
    27    The court may make an order of protection in assistance or as a condi-
    28  tion of any  other  order  made  under  this  section.    The  order  of
    29  protection  may  set  forth  reasonable  conditions  of  behavior  to be
    30  observed for a specified time by any party.  In cases involving domestic
    31  violence, an order of protection shall be observed for a  period  of  no
    32  less than five years. Such an order may require any party:
    33    §  4.  The opening paragraph of subdivision 5 of section 530.12 of the
    34  criminal procedure law, as amended by chapter 240 of the laws  of  2015,
    35  is amended to read as follows:
    36    Upon  sentencing  on  a  conviction for any crime or violation between
    37  spouses, between a parent and child, or  between  members  of  the  same
    38  family  or  household as defined in subdivision one of section 530.11 of
    39  this article, the court  may  in  addition  to  any  other  disposition,
    40  including  a  conditional  discharge  or youthful offender adjudication,
    41  enter an order of protection. Where a temporary order of protection  was
    42  issued,  the  court shall state on the record the reasons for issuing or
    43  not issuing an order of protection. The duration of such an order  shall
    44  be  fixed  by  the  court  and:  (A) in the case of a felony conviction,
    45  [shall not exceed the greater of] be no less  than:    (i)  [eight]  ten
    46  years  from  the  date  of such sentencing, [except] including where the
    47  sentence is or includes a sentence of probation on a  conviction  for  a
    48  felony  sexual  assault,  as provided in subparagraph (iii) of paragraph
    49  (a) of subdivision three of section 65.00 of the penal  law[,  in  which
    50  case,  ten  years from the date of such sentencing], or (ii) [eight] ten
    51  years from the date of the expiration of the maximum term of an indeter-
    52  minate or the term of a determinate sentence  of  imprisonment  actually
    53  imposed;  or  (B) in the case of a conviction for a class A misdemeanor,
    54  shall not exceed the greater of: (i) five years from the  date  of  such
    55  sentencing,  except  where  the  sentence  is  or includes a sentence of
    56  probation on a conviction for a misdemeanor sexual assault, as  provided

        S. 638--A                           3
 
     1  in  subparagraph  (ii)  of paragraph (b) of subdivision three of section
     2  65.00 of the penal law, in which case, six years from the date  of  such
     3  sentencing,  or  (ii)  five years from the date of the expiration of the
     4  maximum term of a definite or intermittent term actually imposed; or (C)
     5  in  the case of a conviction for any other offense, shall not exceed the
     6  greater of: (i) two years from the date of sentencing, or (ii) two years
     7  from the date of the expiration of the maximum term  of  a  definite  or
     8  intermittent  term  actually  imposed.  For  purposes of determining the
     9  duration of an order of protection entered pursuant to this subdivision,
    10  a conviction shall be deemed to  include  a  conviction  that  has  been
    11  replaced  by a youthful offender adjudication.  In addition to any other
    12  conditions, such an order may require the defendant:
    13    § 5. The opening paragraph of subdivision 5 of section 530.12  of  the
    14  criminal procedure law, as amended by section 2 of chapter 9 of the laws
    15  of 2011, is amended to read as follows:
    16    Upon  sentencing  on  a  conviction for any crime or violation between
    17  spouses, between a parent and child, or  between  members  of  the  same
    18  family  or  household as defined in subdivision one of section 530.11 of
    19  this article, the court  may  in  addition  to  any  other  disposition,
    20  including  a  conditional  discharge  or youthful offender adjudication,
    21  enter an order of protection. Where a temporary order of protection  was
    22  issued,  the  court shall state on the record the reasons for issuing or
    23  not issuing an order of protection. The duration of such an order  shall
    24  be  fixed  by  the  court and, in the case of a felony conviction, shall
    25  [not exceed the greater of] be no less than:  (i) [five] ten years  from
    26  the  date of such sentencing, or (ii) [three] ten years from the date of
    27  the expiration of the maximum  term  of  an  indeterminate  sentence  of
    28  imprisonment  actually  imposed;  or  in  the case of a conviction for a
    29  class A misdemeanor, shall not exceed three years from the date of  such
    30  sentencing;  or in the case of a conviction for any other offense, shall
    31  not exceed one year from the date of sentencing. For purposes of  deter-
    32  mining  the  duration of an order of protection entered pursuant to this
    33  subdivision, a conviction shall be deemed to include a  conviction  that
    34  has  been  replaced  by a youthful offender adjudication. In addition to
    35  any other conditions, such an order may require the defendant:
    36    § 6. This act shall take effect immediately, provided that the  amend-
    37  ments to the opening paragraph of subdivision 5 of section 530.12 of the
    38  criminal procedure law made by section four of this act shall be subject
    39  to  the  expiration  and reversion of such opening paragraph pursuant to
    40  section 74 of chapter 3 of the laws of 1995, as amended, when upon  such
    41  date the provisions of section five of this act shall take effect.
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