S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2809

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 18, 2013
                               ___________

Introduced by M. of A. WRIGHT -- 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 duration of orders of protection

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The opening paragraph of subdivision 5 of section 530.12 of
the  criminal procedure law, as amended by section 1 of chapter 9 of the
laws of 2011, is amended to read as follows:
  Upon sentencing on a conviction for any  crime  or  violation  between
spouses,  between  a  parent  and  child, or between members of the same
family or household as defined in subdivision one of section  530.11  of
this  article,  the  court  may  in  addition  to any other disposition,
including a conditional discharge  or  youthful  offender  adjudication,
enter  an order of protection. Where a temporary order of protection was
issued, the court shall state on the record the reasons for  issuing  or
not  issuing an order of protection. The duration of such an order shall
be fixed by the court and: (A) in the case of a felony conviction, shall
not exceed the greater of:  (i)  eight  years  from  the  date  of  such
sentencing,  or  (ii) eight years from the date of the expiration of the
maximum term of an indeterminate or the term of a  determinate  sentence
of imprisonment actually imposed; or (B) in the case of a conviction for
a  class  A misdemeanor, shall not exceed the greater of: (i) five years
from the date of such sentencing, or (ii) five years from  the  date  of
the  expiration  of  the maximum term of a definite or intermittent term
actually imposed; or (C) in the case  of  a  conviction  for  any  other
offense, shall not exceed the greater of: (i) two years from the date of
sentencing,  or  (ii)  two  years from the date of the expiration of the
maximum term of a definite or intermittent term  actually  imposed.  For
purposes  of  determining the duration of an order of protection entered
pursuant to this subdivision, a conviction shall be deemed to include  a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00635-01-3
              

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conviction  that  has been replaced by a youthful offender adjudication.
IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVI-
SION FIVE-A OF THIS SECTION EXIST, THE  COURT  MAY  ENTER  AN  ORDER  OF
PROTECTION  FOR  A  FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS
SET FORTH ABOVE, OR MAY ENTER  A  PERMANENT  ORDER  OF  PROTECTION.  THE
COURT'S  FINDING  OF  AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE
ORDER OF PROTECTION. In addition to any other conditions, such an  order
may require the defendant:
  S  2.  The opening paragraph of subdivision 5 of section 530.12 of the
criminal procedure law, as amended by section 2 of chapter 9 of the laws
of 2011, is amended to read as follows:
  Upon sentencing on a conviction for any  crime  or  violation  between
spouses,  between  a  parent  and  child, or between members of the same
family or household as defined in subdivision one of section  530.11  of
this  article,  the  court  may  in  addition  to any other disposition,
including a conditional discharge  or  youthful  offender  adjudication,
enter  an order of protection. Where a temporary order of protection was
issued, the court shall state on the record the reasons for  issuing  or
not  issuing an order of protection. The duration of such an order shall
be fixed by the court and, in the case of a felony conviction, shall not
exceed the greater of: (i) five years from the date of such  sentencing,
or  (ii) three years from the date of the expiration of the maximum term
of an indeterminate sentence of imprisonment actually imposed; or in the
case of a conviction for a class A misdemeanor, shall not  exceed  three
years  from  the date of such sentencing; or in the case of a conviction
for any other offense, shall not  exceed  one  year  from  the  date  of
sentencing.  For  purposes  of  determining  the duration of an order of
protection entered pursuant to this subdivision, a conviction  shall  be
deemed  to  include  a  conviction  that has been replaced by a youthful
offender adjudication.   IF THE COURT  FINDS  THAT  AGGRAVATING  CIRCUM-
STANCES  AS  DEFINED  IN  SUBDIVISION  FIVE-A OF THIS SECTION EXIST, THE
COURT MAY ENTER AN ORDER OF PROTECTION FOR A FIXED  PERIOD  OF  TIME  IN
EXCESS  OF  THE RELEVANT TERMS SET FORTH ABOVE, OR MAY ENTER A PERMANENT
ORDER OF PROTECTION. THE COURT'S FINDING  OF  AGGRAVATING  CIRCUMSTANCES
SHALL  BE  STATED UPON THE ORDER OF PROTECTION. In addition to any other
conditions, such an order may require the defendant:
  S 3. Section 530.12 of the criminal procedure law is amended by adding
a new subdivision 5-a to read as follows:
  5-A. FOR THE PURPOSES OF SUBDIVISION FIVE OF THIS SECTION,  "AGGRAVAT-
ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
TO  THE  COMPLAINANT  CAUSED  BY  THE  DEFENDANT, THE USE OF A DANGEROUS
INSTRUMENT AGAINST THE  COMPLAINANT  BY  THE  DEFENDANT,  A  HISTORY  OF
REPEATED  VIOLATIONS  OF  PRIOR  ORDERS  OF PROTECTION BY THE DEFENDANT,
PRIOR CONVICTIONS FOR CRIMES AGAINST THE COMPLAINANT BY THE DEFENDANT OR
THE EXPOSURE OF ANY FAMILY OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE
DEFENDANT, AND LIKE INCIDENTS, BEHAVIORS, AND OCCURRENCES WHICH  TO  THE
COURT  CONSTITUTE  AN IMMEDIATE AND ONGOING DANGER TO THE COMPLAINANT OR
ANY MEMBER OF THE COMPLAINANT'S FAMILY OR HOUSEHOLD.
  S 4. The closing paragraph of subdivision 6 of section 530.12  of  the
criminal  procedure law, as added by chapter 222 of the laws of 1994, is
amended to read as follows:
  [Such] WHEN AN ORDER OF PROTECTION IS OF FIXED DURATION, THE order  of
protection  shall  plainly  state  the date that such order expires, AND
WHERE THE ORDER IS OF PERMANENT DURATION, THE  ORDER  SHALL  CLEARLY  SO
STATE.

A. 2809                             3

  S  5.  Subdivision 15 of section 530.12 of the criminal procedure law,
as amended by chapter 186 of the laws of 1997, is  amended  to  read  as
follows:
  15. Any motion to vacate or modify an order of protection, INCLUDING A
PERMANENT  ORDER OF PROTECTION, or A temporary order of protection shall
be MADE on notice to the non-moving party, except as provided in  subdi-
vision three-b of this section.
  S  6.  The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by section 3 of chapter 9 of the laws
of 2011, is amended to read as follows:
  Upon sentencing on a conviction for any offense, where the  court  has
not  issued  an  order  of protection pursuant to section 530.12 of this
article, the court may, in addition to any other disposition,  including
a  conditional  discharge  or  youthful  offender adjudication, enter an
order of protection. Where a temporary order of protection  was  issued,
the court shall state on the record the reasons for issuing or not issu-
ing an order of protection. The duration of such an order shall be fixed
by  the  court  and;  (A)  in the case of a felony conviction, shall not
exceed the greater of: (i) eight years from the date of such sentencing,
or (ii) eight years from the date of the expiration of the maximum  term
of  an  indeterminate or the term of a determinate sentence of imprison-
ment actually imposed; or (B) in the case of a conviction for a class  A
misdemeanor,  shall  not  exceed the greater of: (i) five years from the
date of such sentencing, or (ii) five years from the date of the expira-
tion of the maximum term of a definite  or  intermittent  term  actually
imposed; or (C) in the case of a conviction for any other offense, shall
not exceed the greater of: (i) two years from the date of sentencing, or
(ii)  two years from the date of the expiration of the maximum term of a
definite or intermittent term actually imposed. For purposes  of  deter-
mining  the  duration of an order of protection entered pursuant to this
subdivision, a conviction shall be deemed to include a  conviction  that
has  been  replaced  by  a youthful offender adjudication.  IF THE COURT
FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVISION FOUR-A OF
THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER  OF  PROTECTION  FOR  A
FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR
MAY ENTER A PERMANENT ORDER OF PROTECTION. THE COURT'S FINDING OF AGGRA-
VATING  CIRCUMSTANCES  SHALL  BE STATED UPON THE ORDER OF PROTECTION. In
addition to any other conditions such an  order  may  require  that  the
defendant:
  S  7.  The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by section 4 of chapter 9 of the laws
of 2011, is amended to read as follows:
  Upon sentencing on a conviction for any offense, where the  court  has
not  issued  an  order  of protection pursuant to section 530.12 of this
article, the court may, in addition to any other disposition,  including
a  conditional  discharge  or  youthful  offender adjudication, enter an
order of protection. Where a temporary order of protection  was  issued,
the court shall state on the record the reasons for issuing or not issu-
ing an order of protection. The duration of such an order shall be fixed
by  the  court and, in the case of a felony conviction, shall not exceed
the greater of: (i) five years from the date of such sentencing, or (ii)
three years from the date of the expiration of the maximum  term  of  an
indeterminate  sentence of imprisonment actually imposed; or in the case
of a conviction for a class A misdemeanor, shall not exceed three  years
from the date of such sentencing; or in the case of a conviction for any
other  offense,  shall  not exceed one year from the date of sentencing.

A. 2809                             4

For purposes of determining the  duration  of  an  order  of  protection
entered  pursuant  to  this subdivision, a conviction shall be deemed to
include a conviction that has been replaced by a youthful offender adju-
dication.  IF THE COURT  FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED
IN  SUBDIVISION  FOUR-A  OF  THIS  SECTION EXIST, THE COURT MAY ENTER AN
ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT
TERMS SET FORTH ABOVE, OR MAY ENTER A PERMANENT ORDER OF PROTECTION. THE
COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE  STATED  UPON  THE
ORDER  OF  PROTECTION. In addition to any other conditions such an order
may require that the defendant:
  S 8. Section 530.13 of the criminal procedure law is amended by adding
two new subdivisions 4-a and 10 to read as follows:
  4-A. FOR THE PURPOSES OF SUBDIVISION FOUR OF THIS SECTION,  "AGGRAVAT-
ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
TO THE VICTIM CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS INSTRUMENT
AGAINST THE VICTIM BY THE DEFENDANT, A HISTORY OF REPEATED VIOLATIONS OF
PRIOR  ORDERS  OF  PROTECTION  BY  THE  DEFENDANT, PRIOR CONVICTIONS FOR
CRIMES AGAINST THE VICTIM BY THE DEFENDANT OR THE EXPOSURE OF ANY FAMILY
OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE DEFENDANT, AND LIKE  INCI-
DENTS, BEHAVIORS, AND OCCURRENCES WHICH TO THE COURT CONSTITUTE AN IMME-
DIATE  AND  ONGOING  DANGER TO THE VICTIM, OR ANY MEMBER OF THE VICTIM'S
FAMILY OR HOUSEHOLD.
  10. ANY MOTION TO VACATE OR MODIFY AN ORDER OF PROTECTION, INCLUDING A
PERMANENT ORDER OF PROTECTION, OR A TEMPORARY ORDER OF PROTECTION  SHALL
BE MADE ON NOTICE TO THE NON-MOVING PARTY.
  S 9. Section 842 of the family court act, as amended by chapter 222 of
the  laws  of 1994, the opening paragraph as separately amended by chap-
ters 325 and 341 of the laws of 2010, subdivisions (a),  (b),  (c),  (d)
and  (e)  as amended by chapter 483 of the laws of 1995, subdivision (i)
as added by chapter 253 of the laws of 2006, subdivision (j) as added by
chapter 483 of the laws of 1995 and as relettered by chapter 253 of  the
laws  of  2006,  the second undesignated paragraph as amended by chapter
325 of the laws of 2010, the third undesignated paragraph as amended  by
chapter  224  of  the  laws of 1994, the sixth undesignated paragraph as
amended by section 114 of subpart B of part C of chapter 62 of the  laws
of 2011, the seventh undesignated paragraph as amended by chapter 326 of
the laws of 2008 and the closing paragraph as added by chapter 73 of the
laws of 2007, is amended to read as follows:
  S  842.  Order  of  protection.   An order of protection under section
eight hundred forty-one of this part shall set forth  reasonable  condi-
tions of behavior to be observed for a period not in excess of two years
by  the  petitioner  or respondent or for a period not in excess of five
years upon (i) a finding by the court on the record of the existence  of
aggravating  circumstances  as defined in paragraph (vii) of subdivision
(a) of section eight hundred twenty-seven of this article, THE COURT MAY
ISSUE AN ORDER OF PROTECTION FOR A FIXED PERIOD IN EXCESS OF ONE YEAR OR
A PERMANENT ORDER OF PROTECTION; or (ii) a finding by the court  on  the
record  that  the  conduct  alleged in the petition is in violation of a
valid order of protection.  Any  finding  of  aggravating  circumstances
pursuant  to  this  section  shall  be stated on the record and upon the
order of protection. The court may also, upon motion, extend  the  order
of  protection  for  a  reasonable period of time upon a showing of good
cause or consent of the parties. The fact that abuse  has  not  occurred
during  the pendency of an order shall not, in itself, constitute suffi-
cient ground for denying or failing to extend the order. The court  must
articulate  a  basis for its decision on the record. The duration of any

A. 2809                             5

temporary order shall not by itself  be  a  factor  in  determining  the
length  or  issuance of any final order.  Any order of protection issued
pursuant to this section shall specify if an order of  probation  is  in
effect.  Any  order  of  protection  issued pursuant to this section may
require the petitioner or the respondent:
  (a) to stay away from the home, school, business or place  of  employ-
ment  of  any  other  party,  the other spouse, the other parent, or the
child, and to stay away from any other specific location  designated  by
the court, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to  impose  a  condition pursuant to this subdivision, provided further,
however, that failure to make such a determination shall not affect  the
validity  of such order of protection. In making such determination, the
court shall consider, but shall not  be  limited  to  consideration  of,
whether  the order of protection is likely to achieve its purpose in the
absence of  such  a  condition,  conduct  subject  to  prior  orders  of
protection,  prior incidents of abuse, extent of past or present injury,
threats, drug or alcohol abuse, and access to weapons;
  (b) to permit a parent, or a person entitled to visitation by a  court
order or a separation agreement, to visit the child at stated periods;
  (c)  to refrain from committing a family offense, as defined in subdi-
vision one of section eight hundred twelve of this act, or any  criminal
offense  against  the  child  or against the other parent or against any
person to whom custody of the  child  is  awarded,  or  from  harassing,
intimidating or threatening such persons;
  (d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in  this  proceeding or in any other proceeding or action under this act
or the domestic relations law;
  (e) to refrain from acts of commission  or  omission  that  create  an
unreasonable risk to the health, safety or welfare of a child;
  (f)  to  pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by  such
order if such order is issued or enforced;
  (g) to require the respondent to participate in a batterer's education
program  designed to help end violent behavior, which may include refer-
ral to drug and alcohol counselling, and to pay the costs thereof if the
person has the means to do so, provided however that  nothing  contained
herein  shall  be  deemed  to  require  payment of the costs of any such
program by the petitioner, the state or any political subdivision there-
of; [and]
  (h) to provide, either directly or by  means  of  medical  and  health
insurance,  for expenses incurred for medical care and treatment arising
from the incident or incidents forming the basis for the issuance of the
order[.]; AND
  (i) 1. to refrain from  intentionally  injuring  or  killing,  without
justification,  any  companion  animal the respondent knows to be owned,
possessed, leased, kept or held by  the  petitioner  or  a  minor  child
residing in the household.
  2.  "Companion  animal",  as used in this section, shall have the same
meaning as in subdivision five of section three  hundred  fifty  of  the
agriculture and markets law.
  (j)  to  observe such other conditions as are necessary to further the
purposes of protection.
  The court may also award custody of the child, during the term of  the
order  of  protection  to  either  parent, or to an appropriate relative

A. 2809                             6

within the second degree. Nothing in this section gives the court  power
to  place  or board out any child or to commit a child to an institution
or agency.
  Notwithstanding  the  provisions of section eight hundred seventeen of
this article, where a temporary order of child support has  not  already
been  issued,  the  court may in addition to the issuance of an order of
protection pursuant to this section, issue an order for temporary  child
support  in an amount sufficient to meet the needs of the child, without
a showing of immediate or emergency need. The court shall make an  order
for  temporary  child  support  notwithstanding  that  information  with
respect to income and assets of the respondent may be unavailable. Where
such information is available, the court may make an award for temporary
child support pursuant to the formula set forth in  subdivision  one  of
section  four  hundred thirteen of this act. Temporary orders of support
issued pursuant to this article shall be  deemed  to  have  been  issued
pursuant to section four hundred thirteen of this act.
  Upon  making  an  order  for  temporary child support pursuant to this
subdivision, the court shall advise the petitioner of  the  availability
of  child support enforcement services by the support collection unit of
the local department of social services, to enforce the temporary  order
and  to  assist  in  securing continued child support, and shall set the
support matter down for further proceedings in accordance  with  article
four of this act.
  Where  the  court determines that the respondent has employer-provided
medical insurance, the court may further direct, as part of an order  of
temporary  support  under  this  subdivision,  that  a  medical  support
execution be  issued  and  served  upon  the  respondent's  employer  as
provided  for  in section fifty-two hundred forty-one of the civil prac-
tice law and rules.
  In any proceeding in which an order of protection or  temporary  order
of protection or a warrant has been issued under this section, the clerk
of  the court shall issue to the petitioner and respondent and his coun-
sel and to any other person affected by the order a copy of the order of
protection or temporary order of protection and ensure that  a  copy  of
the  order of protection or temporary order of protection be transmitted
to the local correctional facility where the individual is  or  will  be
detained,  the state or local correctional facility where the individual
is or will be imprisoned, and the supervising  probation  department  or
the  department of corrections and community supervision where the indi-
vidual is under probation or parole supervision.
  Notwithstanding the foregoing provisions, an order of  protection,  or
temporary order of protection where applicable, may be entered against a
former  spouse  and  persons  who  have a child in common, regardless of
whether such persons have been married or have  lived  together  at  any
time,  or against a member of the same family or household as defined in
subdivision one of section eight hundred twelve of this article.
  In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued to terminate a lease or rental agreement pursuant to section  two
hundred twenty-seven-c of the real property law.
  ANY  MOTION  TO  VACATE  OR MODIFY AN ORDER OF PROTECTION, INCLUDING A
PERMANENT ORDER OF PROTECTION, OR A TEMPORARY ORDER OF PROTECTION  SHALL
BE MADE ON NOTICE TO THE NON-MOVING PARTY.
  S 10. This act shall take effect immediately, provided that the amend-
ments  to  the  opening paragraph of subdivision 5 of section 530.12 and

A. 2809                             7

the opening paragraph of subdivision 4 of section 530.13 of the criminal
procedure law made by sections one and six, respectively,  of  this  act
shall  be  subject  to the expiration and reversion of such subdivisions
pursuant  to  section  74  of chapter 3 of the laws of 1995, as amended,
when upon such date the provisions of sections two and seven of this act
shall take effect.