A7233-2011 Actions

• Jun 5, 2012: held for consideration in judiciary
• Jan 4, 2012: referred to judiciary
• Apr 19, 2011: referred to judiciary

A7233-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         7233
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 April 19, 2011
 
 Introduced  by  M.  of  A.  N. RIVERA, SCARBOROUGH, COOK, CASTRO, AUBRY,
 CRESPO, LINARES, ARROYO, MENG, STEVENSON -- Multi-Sponsored by  --  M.
 of  A. BARRON, CLARK, CROUCH, GABRYSZAK, V. LOPEZ, McDONOUGH, McENENY,
 J. MILLER, M. MILLER, MOYA, PERRY, RAMOS, J. RIVERA, P. RIVERA, RODRI
 GUEZ, SALADINO, SAYWARD, WEPRIN --  read  once  and  referred  to  the
 Committee on Judiciary
 AN  ACT to amend the family court act and the criminal procedure law, in
 relation to requiring the service of temporary  orders  of  protection
 and orders of protection upon the attorney representing the respondent
 or defendant
 

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

 

Section 1.

Section 154-d of the family court act, as added by  chapter
 186 of the laws of 1997, is amended to read as follows:

 

S  154-d.  Emergency  powers;  local  criminal  courts. 1. Issuance of
 temporary orders of protection. Upon the request of  the  petitioner,  a
 local criminal court may on an ex parte basis issue a temporary order of
 protection  pending  a  hearing  in  family court, provided that a sworn
 affidavit, certified in  accordance  with  subdivision  one  of  section
 100.30 of the criminal procedure law is submitted: (i) alleging that the
 family  court is not in session; (ii) alleging that a family offense, as
 defined in subdivision one of section eight hundred twelve of  this  act
 or  subdivision one of section 530.11 of the criminal procedure law, has
 been committed; (iii) alleging that a family offense petition  has  been
 filed  or  will be filed in family court on the next day the court is in
 session; and (iv) showing good cause. Upon appearance in a local  crimi
 nal  court,  the petitioner shall be advised that he or she may continue
 with the proceeding either in family court or,  upon  the  filing  of  a
 local  criminal  court accusatory instrument, in criminal court or both.
 Upon issuance of  a  temporary  order  of  protection  where  petitioner
 requests that it be returnable in family court, the local criminal court
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD09663-02-1
 
       A. 7233                             2
 shall  transfer  the matter forthwith to the family court and shall make
 the matter returnable in family court on the next day the  family  court
 is  in  session,  or  as soon thereafter as practicable, but in no event
 more  than  four  calendar  days  after issuance of the order. The local
 criminal court, upon issuing a temporary order of protection  returnable
 in  family  court pursuant to this subdivision shall immediately forward
 in a manner designed to ensure arrival before the return date set in the
 order, a copy of the temporary order of protection and  sworn  affidavit
 to  the family court and shall provide a copy of such temporary order of
 protection to the petitioner; provided, however, that if  the  temporary
 order  of protection and affidavit are transmitted by facsimile or other
 electronic means, the original order and affidavit shall be forwarded to
 the family  court  immediately  thereafter.    Any  temporary  order  of
 protection  issued  pursuant  to this subdivision shall be issued to the
 respondent AND THE ATTORNEY  REPRESENTING  THE  RESPONDENT,  and  copies
 shall  be  filed  as  required  in subdivisions six and eight of section
 530.12 of the criminal procedure law for  orders  of  protection  issued
 pursuant  to  such section.  NO ATTORNEY SHALL REFUSE TO ACCEPT ANY SUCH
 ORDER ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY SHALL
 IMMEDIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE  OF  THE
 ORDER  AND  THE  TERMS  OF SUCH ORDER. Any temporary order of protection
 issued pursuant to this subdivision shall plainly state  the  date  that
 such  order  expires which, in the case of an order returnable in family
 court, shall be not more than four calendar  days  after  its  issuance,
 unless  sooner  vacated  or  modified  by the family court. A petitioner
 requesting a temporary order of protection returnable  in  family  court
 pursuant  to this subdivision in a case in which a family court petition
 has not been filed shall  be  informed  that  such  temporary  order  of
 protection  shall  expire  as provided for herein, unless the petitioner
 files a petition pursuant to subdivision one of  section  eight  hundred
 twenty-one  of this act on or before the return date in family court and
 the family court issues a temporary order of  protection  as  authorized
 under article eight of this act. Nothing in this subdivision shall limit
 or restrict the petitioner's right to proceed directly and without court
 referral  in either a criminal or family court, or both, as provided for
 in section one hundred fifteen of this act and  section  100.07  of  the
 criminal procedure law.
 2.  Modifications  of  orders  of  protection  or  temporary orders of
 protection. Upon the request of the petitioner, a local  criminal  court
 may on an ex parte basis modify a temporary order of protection or order
 of  protection  which  has  been issued under article four, five, six or
 eight of this act pending a hearing in family  court,  provided  that  a
 sworn  affidavit, verified in accordance with subdivision one of section
 100.30 of the criminal procedure law, is submitted:  (i)  alleging  that
 the  family court is not in session and (ii) showing good cause, includ
 ing a showing that the existing order is insufficient for  the  purposes
 of  protection  of the petitioner, the petitioner's child or children or
 other members of the petitioner's family or household. The local  crimi
 nal  court shall make the matter regarding the modification of the order
 returnable in family court on the  next  day  the  family  court  is  in
 session, or as soon thereafter as practicable, but in no event more than
 four calendar days after issuance of the modified order. The local crim
 inal  court  shall  immediately  forward, in a manner designed to ensure
 arrival before the return date set in the order, a copy of the  modified
 order if any and sworn affidavit to the family court and shall provide a
 copy  of  such  modified order, if any, and affidavit to the petitioner;
 
       A. 7233                             3
 provided, however, that if the modified order and affidavit  are  trans
 mitted  to  the family court by facsimile or other electronic means, the
 original copy of such modified order and affidavit shall be forwarded to
 the family court immediately thereafter. Any modified temporary order of
 protection  or  order  of protection issued pursuant to this subdivision
 shall be issued to the respondent  AND  THE  ATTORNEY  REPRESENTING  THE
 RESPONDENT,  and  copies  shall be filed as provided in subdivisions six
 and eight of section 530.12 of the criminal procedure law for orders  of
 protection issued pursuant to such section.  NO ATTORNEY SHALL REFUSE TO
 ACCEPT  ANY  SUCH  ORDER  ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND
 SUCH ATTORNEY SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER  CLIENT  OF
 THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER.
 

S  2. Subdivision 1 of section 168 of the family court act, as amended
 by chapter 416 of the laws of 1981, is amended to read as follows:

 1. In any case in which an order of protection or temporary  order  of
 protection  has  been  made  by the family court, the clerk of the court
 shall  issue  a  copy  of  such  order  to  the  petitioner  [and],  THE
 respondent,  THE  ATTORNEY  REPRESENTING THE RESPONDENT and to any other
 person affected by the order. NO ATTORNEY SHALL  REFUSE  TO  ACCEPT  ANY
 SUCH  ORDER ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY
 SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE OF
 THE ORDER AND THE TERMS OF SUCH ORDER. The presentation of a copy of  an
 order  of  protection or temporary order of protection or a warrant or a
 certificate of warrant to any peace officer, acting pursuant to  his  OR
 HER special duties, or police officer shall constitute authority for him
 OR HER to arrest a person charged with violating the terms of such order
 of  protection  or  temporary  order of protection and bring such person
 before the court and, otherwise, so far as lies within his OR HER power,
 to aid in securing the protection such order  was  intended  to  afford,
 provided,  however, that any outstanding, unexpired certificate of order
 of protection or temporary order of protection shall have the same force
 and effect as a copy of such order or temporary order.
 

S 3. Subdivisions 3-a, 3-b and 8 of section  530.12  of  the  criminal
 procedure  law,  subdivisions 3-a and 3-b as added by chapter 186 of the
 laws of 1997 and subdivision 8 as amended by section 81 of subpart B  of
 part  C  of  chapter  62  of  the  laws  of 2011, are amended to read as
 follows:

 3-a. Emergency powers when family court not in  session;  issuance  of
 temporary  orders  of  protection. Upon the request of the petitioner, a
 local criminal court may on an ex parte basis issue a temporary order of
 protection pending a hearing in family  court,  provided  that  a  sworn
 affidavit, verified in accordance with subdivision one of section 100.30
 of this chapter, is submitted: (i) alleging that the family court is not
 in  session; (ii) alleging that a family offense, as defined in subdivi
 sion one of section eight hundred twelve of the  family  court  act  and
 subdivision  one  of section 530.11 of this article, has been committed;
 (iii) alleging that a family offense petition has been filed or will  be
 filed  in family court on the next day the court is in session; and (iv)
 showing good cause. Upon appearance in a local criminal court, the peti
 tioner shall be advised that he or she may continue with the  proceeding
 either  in  family  court  or  upon the filing of a local criminal court
 accusatory instrument in criminal court or  both.  Upon  issuance  of  a
 temporary  order  of  protection  where  petitioner  requests that it be
 returnable in family court, the local criminal court shall transfer  the
 matter  forthwith  to the family court and shall make the matter return
 able in family court on the next day the family court is in session,  or
 
       A. 7233                             4
 as soon thereafter as practicable, but in no event more than four calen
 dar  days  after  issuance  of the order. The local criminal court, upon
 issuing a temporary order  of  protection  returnable  in  family  court
 pursuant  to  this  subdivision,  shall immediately forward, in a manner
 designed to insure arrival before the return date set in  the  order,  a
 copy  of  the  temporary  order of protection and sworn affidavit to the
 family court and shall  provide  a  copy  of  such  temporary  order  of
 protection  to  the  petitioner; provided, however, that where a copy of
 the temporary order of protection and affidavit are transmitted  to  the
 family  court by facsimile or other electronic means, the original order
 and affidavit shall be forwarded to the family court immediately  there
 after.  Any temporary order of protection issued pursuant to this subdi
 vision shall be issued to the respondent AND THE  ATTORNEY  REPRESENTING
 THE  RESPONDENT,  and  copies shall be filed as required in subdivisions
 six and eight of this section for orders of protection  issued  pursuant
 to  this  section.    NO  ATTORNEY SHALL REFUSE TO ACCEPT ANY SUCH ORDER
 ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY SHALL IMME
 DIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE OF THE ORDER
 AND THE TERMS OF SUCH ORDER. Any temporary order  of  protection  issued
 pursuant  to  this  subdivision  shall  plainly state the date that such
 order expires which, in the case of an order returnable in family court,
 shall be not more than four calendar days  after  its  issuance,  unless
 sooner  vacated or modified by the family court. A petitioner requesting
 a temporary order of protection returnable in family court  pursuant  to
 this subdivision in a case in which a family court petition has not been
 filed  shall  be  informed that such temporary order of protection shall
 expire as provided for herein, unless the petitioner  files  a  petition
 pursuant  to  subdivision one of section eight hundred twenty-one of the
 family court act on or before the return date in family  court  and  the
 family  court  issues  a  temporary  order  of  protection  or  order of
 protection as authorized under article eight of the  family  court  act.
 Nothing  in  this  subdivision  shall limit or restrict the petitioner's
 right to proceed directly and without court referral in either a  crimi
 nal  or  family  court,  or both, as provided for in section one hundred
 fifteen of the family court act and section 100.07 of this chapter.
 3-b. Emergency powers when family court not in session;  modifications
 of  orders  of  protection  or  temporary orders of protection. Upon the
 request of the petitioner, a local criminal court may  on  an  ex  parte
 basis  modify  a  temporary  order  of protection or order of protection
 which has been issued under article four, five,  six  or  eight  of  the
 family  court  act  pending  a  hearing in family court, provided that a
 sworn affidavit verified in accordance with subdivision one  of  section
 100.30  of this chapter is submitted: (i) alleging that the family court
 is not in session and (ii) showing good cause, including a showing  that
 the existing order is insufficient for the purposes of protection of the
 petitioner,  the  petitioner's child or children or other members of the
 petitioner's family or household. The local criminal  court  shall  make
 the  matter regarding the modification of the order returnable in family
 court on the next day the family court is in session, or as soon  there
 after as practicable, but in no event more than four calendar days after
 issuance  of  the  modified order. The court shall immediately forward a
 copy of the modified order, if any, and sworn affidavit  to  the  family
 court and shall provide a copy of such modified order, if any, and affi
 davit  to  the  petitioner; provided, however, that where copies of such
 modified order and affidavit are transmitted  to  the  family  court  by
 facsimile  or  other electronic means, the original copies of such modi
 
       A. 7233                             5
 fied order and affidavit shall be forwarded to the  family  court  imme
 diately  thereafter. Any modified temporary order of protection or order
 of protection issued pursuant to this subdivision shall be issued to the
 respondent AND THE ATTORNEY REPRESENTING THE RESPONDENT and copies shall
 be  filed  as required in subdivisions six and eight of this section for
 orders of protection issued pursuant to this section.  NO ATTORNEY SHALL
 REFUSE TO ACCEPT ANY SUCH ORDER  ADDRESSED  TO  HIS  OR  HER  RESPONDENT
 CLIENT, AND SUCH ATTORNEY SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER
 CLIENT OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER.
 8.  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  complainant  and  defendant  and
 defense  counsel 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 department of corrections and community supervision  where
 the  individual  is  under  probation or parole supervision.  NO DEFENSE
 COUNSEL SHALL REFUSE TO ACCEPT ANY SUCH ORDER ADDRESSED TO  HIS  OR  HER
 CLIENT, AND SUCH COUNSEL SHALL IMMEDIATELY PROVIDE NOTICE TO THE DEFEND
 ANT  OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER. The pres
 entation of a copy of such order or  a  warrant  to  any  peace  officer
 acting  pursuant  to  his  or her special duties or police officer shall
 constitute authority for him or her to arrest a person who has  violated
 the  terms  of  such  order  and bring such person before the court and,
 otherwise, so far as lies within his or her power, to  aid  in  securing
 the protection such order was intended to afford.
 

S 4. Subdivision 6 of section 530.13 of the criminal procedure law, as
 amended  by  section 82 of subpart B of part C of chapter 62 of the laws
 of 2011, is amended to read as follows:

 6. 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 victim and the defendant and
 defense counsel 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 department of corrections and community supervision  where
 the  individual  is  under  probation or parole supervision.  NO DEFENSE
 COUNSEL SHALL REFUSE TO ACCEPT ANY SUCH ORDER ADDRESSED TO  HIS  OR  HER
 CLIENT, AND SUCH COUNSEL SHALL IMMEDIATELY PROVIDE NOTICE TO THE DEFEND
 ANT  OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER. The pres
 entation of a copy of such order or a warrant to any police  officer  or
 peace officer acting pursuant to his or her special duties shall consti
 tute  authority  for  him or her to arrest a person who has violated the
 terms of such order and bring such person before the court  and,  other
 wise,  so  far  as  lies within his or her power, to aid in securing the
 protection such order was intended to afford.
 

S 5. This act shall take effect  on the first of October next succeed
 ing the date on which it shall have become a law.

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