Relates to pre-disposition and pre-sentence investigations in family offense cases; makes provisions relating to probation access to the family protection registry.
Ayes (34): DeFrancisco, Bonacic, Farley, Flanagan, Fuschillo, Golden, Griffo, Grisanti, Hannon, Lanza, Larkin, LaValle, Little, Marcellino, Nozzolio, O'Mara, Ranzenhofer, Robach, Savino, Seward, Young, Diaz, Dilan, Rivera, Gianaris, Breslin, Montgomery, Peralta, Perkins, Stavisky, Squadron, Kennedy, Espaillat, Sampson
Nays (1): Parker
Excused (1): Krueger
Ayes (61): Adams, Addabbo, Avella, Ball, Bonacic, Boyle, Breslin, Carlucci, DeFrancisco, Dilan, Espaillat, Farley, Felder, Flanagan, Fuschillo, Gallivan, Gianaris, Gipson, Golden, Griffo, Grisanti, Hannon, Hassell-Thomps, Hoylman, Kennedy, Klein, Krueger, Lanza, Larkin, Latimer, LaValle, Libous, Little, Marcellino, Marchione, Martins, Maziarz, Montgomery, Nozzolio, O'Brien, O'Mara, Parker, Peralta, Perkins, Ranzenhofer, Rivera, Robach, Sampson, Sanders, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Tkaczyk, Valesky, Young, Zeldin
Excused (2): Diaz, Ritchie
TITLE OF BILL: An act to amend the executive law, the family court act and the criminal procedure law, in relation to pre-dispositional and pre-sentence investigations in family offense cases
PURPOSE: Relates to predisposition and presentence investigations in family offense cases.
SUMMARY OF PROVISIONS: This bill amends subdivision 4 of section 221-a of the Executive Law; subdivision (a) of section 835 of the Family Court Act; subdivision 3 of section 390.20 of the Criminal Procedure Law; and, subdivision 4 of section 390.30 of the Criminal Procedure Law authorizing probation departments to conduct pre-dispositional or pre-sentence investigations in family offense cases and to obtain access to the statewide automated order of protection and warrant registry for that purpose.
JUSTIFICATION: In enacting the Family Protection and Domestic violence Intervention Act of 1994 Laws of 1994, ch. 222, 224, the New York State Legislature demonstrated its intent to assure a more rigorous response by law enforcement agencies and the courts to domestic violence. Victims of domestic violence are afforded easy access to either or both family and criminal courts for prosecution of family offense cases. In addition, offenders are subject to mandatory arrest and face heightened consequences for abusive acts in both courts. Local probation departments serving both family and criminal courts, therefore, require the tools necessary -- in particular, sufficient information regarding both the offense and the offender -- to assist the courts in responding effectively to these legislative changes. This bill authorizes local probation departments to obtain access to necessary information on the statewide automated registry of orders of protection and warrants. Information regarding an individual's history of such orders may be essential, not only for the resolution of family offense cases, but also for custody, visitation, juvenile delinquency, PINS and criminal proceedings. This bill authorizes the courts to call upon local probation departments to perform investigations which will assist the courts in their dispositions of family offense matters and enables probation departments to obtain access to domestic violence registry information for these and other pre-dispositional investigations. Additionally, the proposed legislation allows criminal courts to obtain assistance from local probation departments to conduct pre-sentence investigations where relevant to the issuance of an order of protection. Some family offenses currently require pre-sentence investigations, while others do not. While not altering the court's discretion with respect to ordering pre-sentence investigations in non-mandated cases, this proposal explicitly adds an authorization for the courts to order such inquiries for the purpose of "issuance of an order of protection." Where the family offense conviction is not for a felony, which requires a full-scale pre-sentence investigation, the proposal
treats family offense convictions as misdemeanors eligible for "abbreviated investigations and short form reports." While not providing an exhaustive list of permissible areas of inquiry, the proposal enumerates the factors which the court must consider in determining whether an order of protection should issue; specifically, the offender's access to weapons, abuse of controlled substances or alcohol and the offender's history or injury or threat of injury to family members. As in Family Court proceedings, the inclusion of inquiries regarding firearms will enhance the court's ability to frame appropriate conditions for orders of protection and, in cases involving serious violations, will afford the courts information necessary to enforce the provisions regarding firearms license suspensions or revocation and firearms surrender.
LEGISLATIVE HISTORY: 2010 Referred and Recommitted to Codes 2011 Passed Senate 2012 Passed Senate
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become law.
STATE OF NEW YORK ________________________________________________________________________ 1017 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________Introduced by Sen. ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Finance AN ACT to amend the executive law, the family court act and the criminal procedure law, in relation to pre-dispositional and pre-sentence investigations in family offense cases THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision 4 of section 221-a of the executive law, as amended by section 7 of part D of chapter 56 of the laws of 2008, is amended to read as follows: 4. Courts and law enforcement officials, including probation officers, shall have the ability to disclose and share information with respect to such orders and warrants consistent with the purposes of this section, subject to applicable provisions of the family court act, domestic relations law and criminal procedure law concerning the confidentiality, sealing and expungement of records. DESIGNATED REPRESENTATIVES OF A LOCAL PROBATION SERVICE SHALL HAVE ACCESS TO INFORMATION IN THE STATE- WIDE REGISTRY OF ORDERS OF PROTECTION AND WARRANTS NECESSARY IN ORDER TO RESPOND TO A JUDICIAL REQUEST FOR INFORMATION PURSUANT TO SUBDIVISION SIX OF SECTION EIGHT HUNDRED TWENTY-ONE-A OF THE FAMILY COURT ACT, SUBDIVISION SIX-A OF SECTION 530.12 OF THE CRIMINAL PROCEDURE LAW OR, INSOFAR AS THEY INVOLVE VICTIMS OF DOMESTIC VIOLENCE AS DEFINED BY SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW, SECTION 530.13 OF THE CRIMINAL PROCEDURE LAW, OR TO PREPARE AN INVESTIGATION AND REPORT IN PROCEEDINGS CONDUCTED PURSUANT TO SECTIONS 351.1, SIX HUNDRED FORTY-TWO, SIX HUNDRED FIFTY-SIX, SIX HUNDRED SIXTY-TWO, SEVEN HUNDRED FIFTY, EIGHT HUNDRED THIRTY-FIVE AND SUBDIVISION (B) OF SECTION ONE THOUSAND FORTY-SEVEN OF THE FAMILY COURT ACT OR ARTICLE THREE HUNDRED NINETY OF THE CRIMINAL PROCEDURE LAW.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05317-01-3 S. 1017 2
S 2. The section heading and subdivision (a) of section 835 of the family court act, as amended by chapter 529 of the laws of 1963, are amended to read as follows: Sequence of hearings; PROBATION INVESTIGATIONS AND REPORTS. (a) Upon completion of the fact-finding hearing, the dispositional hearing may commence immediately after the required findings are made. IN AID OF ITS DISPOSITION, THE COURT MAY ADJOURN THE PROCEEDING FOR AN INVESTIGATION AND REPORT BY A LOCAL PROBATION SERVICE. FOR THE PURPOSES OF THIS ARTICLE, THE PROBATION INVESTIGATION AND REPORT MAY INCLUDE, BUT IS NOT LIMITED TO: THE PRESENCE OR ABSENCE OF AGGRAVATING FACTORS AS DEFINED IN PARAGRAPH (VII) OF SUBDIVISION (A) OF SECTION EIGHT HUNDRED TWENTY-SEVEN OF THIS ARTICLE, THE EXTENT OF INJURIES OR OUT-OF-POCKET LOSSES TO THE VICTIM WHICH MAY FORM THE BASIS FOR AN ORDER OF RESTITU- TION PURSUANT TO SUBDIVISION (E) OF SECTION EIGHT HUNDRED FORTY-ONE OF THIS ARTICLE, THE HISTORY OF THE RESPONDENT WITH RESPECT TO FAMILY OFFENSES AND ORDERS OF PROTECTION IN THIS OR OTHER COURTS, WHETHER THE RESPONDENT IS IN POSSESSION OF ANY FIREARMS AND, IF SO, WHETHER THE RESPONDENT IS LICENSED OR OTHERWISE AUTHORIZED TO BE IN POSSESSION OF SUCH FIREARMS. S 3. Subdivision 3 of section 390.20 of the criminal procedure law is amended to read as follows: 3. Permissible in any case. For purposes of sentence, ISSUANCE OF AN ORDER OF PROTECTION PURSUANT TO SUBDIVISION FIVE OF SECTION 530.12 OF THIS CHAPTER OR, INSOFAR AS THEY INVOLVE VICTIMS OF DOMESTIC VIOLENCE AS DEFINED BY SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL SERVICES LAW, SECTION 530.13 OF THIS CHAPTER, the court may, in its discretion, order a pre-sentence investigation and report in any case, irrespective of whether such investigation and report is required by subdivision one or two OF THIS SECTION. S 4. Subdivision 4 of section 390.30 of the criminal procedure law, as amended by chapter 618 of the laws of 1992, the opening paragraph as amended by section 50 of part A of chapter 56 of the laws of 2010, is amended to read as follows: 4. Abbreviated investigation and short form report. In lieu of the procedure set forth in subdivisions one, two and three of this section, where the conviction is of a misdemeanor OR FAMILY OFFENSE, AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, OTHER THAN A FELO- NY, the scope of the pre-sentence investigation may be abbreviated and a short form report may be made. The use of abbreviated investigations and short form reports, the matters to be covered therein and the form of the reports shall be in accordance with the general rules regulating methods and procedures in the administration of probation as adopted from time to time by the commissioner of the division of criminal justice services pursuant to the provisions of article twelve of the executive law. No such rule, however, shall be construed so as to relieve the agency conducting the investigation of the duty of investi- gating and reporting upon: (a) the extent of the injury or economic loss and the actual out-of- pocket loss to the victim including the amount of restitution and repa- ration sought by the victim, after the victim has been informed of the right to seek restitution and reparation, or (b) IN A CASE INVOLVING A FAMILY OFFENSE, AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, THE DEFENDANT'S HISTORY OF FAMILY OFFENSES AND ORDERS OF PROTECTION, INCLUDING VIOLATIONS, IN PROCEEDINGS OR ACTIONS IN THIS OR OTHER COURTS, THE EXTENT OF INJURIES OR THREATS OF INJURY TO THE COMPLAINANT OR MEMBERS OF COMPLAINANT'S FAMILY OR HOUSE-S. 1017 3
HOLD, THE USE OR THREATENED USE OF DANGEROUS INSTRUMENTS AGAINST THE COMPLAINANT OR MEMBERS OF COMPLAINANT'S FAMILY OR HOUSEHOLD, WHETHER THE DEFENDANT IS IN POSSESSION OF ANY FIREARMS AND, IF SO, WHETHER DEFENDANT IS LICENSED OR OTHERWISE AUTHORIZED TO BE IN POSSESSION OF SUCH FIREARMS, THE EXTENT TO WHICH THE DEFENDANT POSES AN IMMEDIATE AND ONGO- ING DANGER TO THE COMPLAINANT OR MEMBERS OF THE COMPLAINANT'S FAMILY OR HOUSEHOLD AND ANY OTHER INFORMATION RELEVANT TO THE ISSUE OF WHETHER AN ORDER OF PROTECTION, IN ADDITION TO ANY OTHER DISPOSITION, SHOULD BE ISSUED IN ACCORDANCE WITH SUBDIVISION FIVE OF SECTION 530.12 OF THIS CHAPTER, OR (C) any matter relevant to the question of sentence OR ISSUANCE OF AN ORDER OF PROTECTION that the court directs to be included in particular cases. S 5. This act shall take effect on the ninetieth day after it shall have become a law.