Bill S3666C-2011

Establishes domestic abuse offenses, provides for special information for certain felony domestic abuse offenses and designates such offenses as family offenses

Establishes domestic abuse offenses for assaults upon spouses, former spouses, fellow parents of a child in common and domestic partners; provides for issuance of a special information for domestic abuse in the first degree requiring a predicate criminal conviction; designates such domestic abuse offenses as family offenses for purposes of the criminal procedure law and the family court act.

Details

Actions

  • Apr 27, 2012: PRINT NUMBER 3666C
  • Apr 27, 2012: AMEND (T) AND RECOMMIT TO CODES
  • Mar 29, 2012: PRINT NUMBER 3666B
  • Mar 29, 2012: AMEND (T) AND RECOMMIT TO CODES
  • Jan 4, 2012: REFERRED TO CODES
  • Jun 3, 2011: PRINT NUMBER 3666A
  • Jun 3, 2011: AMEND AND RECOMMIT TO CODES
  • Mar 1, 2011: REFERRED TO CODES

Memo

BILL NUMBER:S3666C

TITLE OF BILL: An act to amend the penal law, in relation to establishing domestic abuse offenses; to amend the criminal procedure law, in relation to providing for a special information in the indictment of certain felony domestic abuse offenses and procedures for determining whether domestic abuse misdemeanors are crimes of domestic violence for purposes of federal law; and to amend the criminal procedure law and the family court act, in relation to including domestic abuse in the first and second degrees as family offenses

PURPOSE: Establishes domestic abuse offenses, provides for special information for certain felony domestic abuse offense and designates such offenses as family offenses.

SUMMARY OF PROVISIONS: Section one amends the penal law by adding three new sections: 120.75, 120.80, and 120.85.

Section two amends the criminal procedure law by adding a new section 200.63

Section three amends subdivision one of section 370.15 of the criminal procedure law as added by chapter 258 of the laws of 2011.

Section four amends section 380.97 of the criminal procedure law as added by chapter 258 of the laws of 2011.

Section five amends the opening paragraph of subdivision 1 of section 530.11 of the criminal procedure law as amended by chapter 405 of the laws of 2010.

Section six amends the opening paragraph of subdivision 1 of section 812 of the family court act as separately amended by chapters 341 and 405 of the laws of 2010.

Section seven is the effective date.

JUSTIFICATION: Presently, conduct that qualifies only as harassment committed against a spouse or intimate partner but that results in physical injury is punishable as a mere violation. The creation of the crime of domestic abuse in the second degree increases the scope of punishment of those who cause physical injury

to a spouse or intimate partner, thereby providing a greater deterrent against such conduct.

Likewise, New York law punishes only as a misdemeanor assaultive conduct against a spouse or intimate partner that results in physical injury. Such conduct time and again leads to more and more serious assaults, serious physical injury and perhaps death. The creation of the felony of domestic abuse in the first degree increases the scope of punishment and provides a greater deterrent for those who commit serious domestic abuse or who are repeat offenders.

In addition, currently, New York has no offense specifically identified as domestic violence or abuse. By creating the crime of domestic abuse for offenses in which physical injury is caused in the context of a domestic relationship, New York will join the many other states that are able to track domestic violence, in order to address one of the most under reported crimes in New York State. That change will also enable enforcement of federal laws prohibiting sale of firearms to those who have been convicted of a misdemeanor crime of domestic violence.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first of November next succeeding the date on which it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 3666--C 2011-2012 Regular Sessions IN SENATE March 1, 2011 ___________
Introduced by Sens. LANZA, SAVINO -- read twice and ordered printed, and when printed to be committed 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 accord- ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the penal law, in relation to establishing domestic abuse offenses; to amend the criminal procedure law, in relation to providing for a special information in the indictment of certain felo- ny domestic abuse offenses and procedures for determining whether domestic abuse misdemeanors are crimes of domestic violence for purposes of federal law; and to amend the criminal procedure law and the family court act, in relation to including domestic abuse in the first and second degrees as family offenses THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The penal law is amended by adding three new sections 120.75, 120.80 and 120.85 to read as follows: S 120.75 DEFINITIONS; DOMESTIC ABUSE. FOR THE PURPOSES OF SECTIONS 120.80 AND 120.85 OF THIS ARTICLE: 1. "DOMESTIC PARTNER" SHALL MEAN A PERSON WHO IS LIVING OR HAS LIVED TOGETHER WITH ANOTHER PERSON FOR AN EXTENDED DURATION IN AN INTIMATE RELATIONSHIP MARKED BY SEXUAL, PHYSICAL OR FINANCIAL INTERDEPENDENCE. 2. "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN A PERSON WHO HAS A CHILD IN COMMON WITH ANOTHER PERSON REGARDLESS OF WHETHER SUCH PERSONS WERE MARRIED OR HAVE LIVED TOGETHER. 3. "FORMER SPOUSE" SHALL MEAN A PERSON FORMERLY MARRIED TO ANOTHER PERSON REGARDLESS OF WHETHER SUCH PERSONS STILL RESIDE IN THE SAME HOUSEHOLD.
4. "SPOUSE" SHALL MEAN A PERSON LEGALLY MARRIED TO ANOTHER PERSON. S 120.80 DOMESTIC ABUSE IN THE SECOND DEGREE. A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE SECOND DEGREE WHEN, WITH INTENT TO HARASS, ANNOY OR ALARM HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, HE OR SHE CAUSES PHYSICAL INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER. DOMESTIC ABUSE IN THE SECOND DEGREE IS A CLASS A MISDEMEANOR. S 120.85 DOMESTIC ABUSE IN THE FIRST DEGREE. A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE FIRST DEGREE WHEN: 1. WITH INTENT TO CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, HE OR SHE CAUSES SUCH INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, OR TO A THIRD PERSON; OR 2. HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER; OR 3. WITH CRIMINAL NEGLIGENCE, HE OR SHE CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER BY MEANS OF A DEADLY WEAPON OR DANGEROUS INSTRUMENT; OR 4. HE OR SHE COMMITS A CRIME AGAINST HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, AND HE OR SHE HAS PREVIOUSLY BEEN CONVICTED OF A CRIME AGAINST HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER WITHIN THE PRECEDING FIVE YEARS. THE PERSON AGAINST WHOM A CRIME HAS BEEN COMMITTED FOR PURPOSES OF CULPABILITY UNDER THIS SUBDIVISION MAY BE A DIFFERENT PERSON THAN WHOM THE PREDICATE CRIME WAS COMMITTED AGAINST DURING THE PRECEDING FIVE YEARS. FOR PURPOSES OF THIS SUBDIVISION, ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED FOR ANY REASON BETWEEN THE COMMISSION OF ANY PREVIOUS CRIMES AND THE COMMISSION OF THE CRIME IN VIOLATION OF THIS SUBDIVISION SHALL BE EXCLUDED AND SUCH FIVE YEAR PERIOD SHALL BE EXTENDED BY THE PERIOD OR PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED. DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY. S 2. The criminal procedure law is amended by adding a new section 200.63 to read as follows: S 200.63 INDICTMENT; SPECIAL INFORMATION FOR DOMESTIC ABUSE OFFENDER. 1. WHENEVER A PERSON IS CHARGED WITH THE COMMISSION OR ATTEMPTED COMMISSION OF DOMESTIC ABUSE IN THE FIRST DEGREE AS DEFINED IN SUBDIVI- SION FOUR OF SECTION 120.85 OF THE PENAL LAW, AN INDICTMENT OR INFORMA- TION FOR SUCH OFFENSE SHALL BE ACCOMPANIED BY A SPECIAL INFORMATION, FILED BY THE DISTRICT ATTORNEY WITH THE COURT, ALLEGING THAT THE DEFEND- ANT WAS PREVIOUSLY CONVICTED OF A CRIME, THAT AT THE TIME OF THE PREVI- OUS CRIME OR AT AN EARLIER TIME THE DEFENDANT WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, AS DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH CRIME, AND THAT SUCH PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW. EXCEPT AS PROVIDED IN THIS SECTION, THE PEOPLE MAY NOT REFER TO SUCH SPECIAL INFORMATION DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING THE ALLEGATIONS THEREIN. 2. AT ANY TIME BEFORE THE CLOSE OF THE PEOPLE'S CASE, THE COURT, IN THE ABSENCE OF THE JURY, MUST ARRAIGN THE DEFENDANT UPON SUCH INFORMA- TION AND ADVISE HIM OR HER THAT HE OR SHE MAY ADMIT EACH SUCH ALLEGA- TION, DENY ANY SUCH ALLEGATION OR REMAIN MUTE WITH RESPECT TO ANY SUCH
ALLEGATION. DEPENDING UPON THE DEFENDANT'S RESPONSE, THE TRIAL OF THE INDICTMENT OR INFORMATION MUST THEN PROCEED AS FOLLOWS: (A) (I) IF THE PREVIOUS CONVICTION IS OF DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED BY SECTION 120.80 OF THE PENAL LAW, AND THE DEFENDANT ADMITS THE PREVIOUS CONVICTION OR THAT IT TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW, THE ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR ALL SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION 70.00 OF THE PENAL LAW. THE COURT MUST SUBMIT THE CASE TO THE JURY AS IF THE ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE COURT MAY NOT SUBMIT TO THE JURY ANY LESSER INCLUDED OFFENSE WHICH IS DISTINGUISHED FROM THE OFFENSE CHARGED SOLELY BY THE FACT THAT THE PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF. (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE WITH RESPECT TO IT, THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE. (III) IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW, OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART OF THEIR CASE, THAT THE PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED. (B) (I) IF THE PREVIOUS CONVICTION IS FOR A CRIME OTHER THAN DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED BY SECTION 120.80 OF THE PENAL LAW, AND THE DEFENDANT ADMITS THE PREVIOUS CONVICTION, THAT IT TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW, OR THAT THE DEFENDANT WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH CRIME, THE ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR ALL SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION 70.00 OF THE PENAL LAW. THE COURT MUST SUBMIT THE CASE TO THE JURY AS IF THE ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE COURT MAY NOT SUBMIT TO THE JURY ANY LESSER INCLUDED OFFENSE WHICH IS DISTINGUISHED FROM THE OFFENSE CHARGED SOLELY BY THE FACT THAT THE PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF. (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE WITH RESECT TO IT, THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE. (III) IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW, OR REMAINS MUTE WITH RESECT TO THAT MATTER, THE PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART OF THEIR CASE, THAT THE PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED. (IV) IF THE DEFENDANT DENIES THAT THE DEFENDANT WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH PREVI- OUS CRIME, OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE. 3. NOTWITHSTANDING SUBDIVISION ONE, AND SUBPARAGRAPH (I) OF PARAGRAPH (A) AND SUBPARAGRAPH (I) OF PARAGRAPH (B) OF SUBDIVISION TWO OF THIS SECTION, IF EVIDENCE REGARDING THE PRIOR CONVICTION, OR THAT THE DEFEND- ANT WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE
VICTIM OF SUCH PREVIOUS CRIME, IS RELEVANT TO HELP PROVE THE CRIME OR CRIMES CHARGED IN THE INDICTMENT OR INFORMATION, SUCH EVIDENCE SHALL BE ADMISSIBLE. 4. A DETERMINATION PURSUANT TO THIS SECTION THAT THE DEFENDANT HAS A PREVIOUS CONVICTION, THAT AT THE TIME OF THE PRIOR OFFENSE THE DEFENDANT WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH PREVIOUS CRIME, OR THAT THE PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW, SHALL BE BINDING IN ANY FUTURE PROCEEDING IN WHICH THE ISSUE MAY ARISE UNLESS THE CONVICTION FOR THE DOMESTIC ABUSE OFFENSE CHARGED IN THE INDICTMENT OR INFORMATION IS VACATED OR REVERSED. S 3. Subdivision 1 of section 370.15 of the criminal procedure law, as added by chapter 258 of the laws of 2011, is amended to read as follows: 1. When a defendant has been charged with assault or attempted assault in the third degree as defined in sections 120.00 and 110.00 of the penal law, menacing or attempted menacing in the second degree as defined in sections 120.14 and 110.00 of the penal law, DOMESTIC ABUSE OR ATTEMPTED DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED IN SECTIONS 120.80 AND 110.00 OF THE PENAL LAW, criminal obstruction of breathing or blood circulation or attempted criminal obstruction of breathing or blood circulation as defined in sections 121.11 and 110.00 of the penal law, or forcible touching or attempted forcible touching as defined in sections 130.52 and 110.00 of the penal law, the people may, at arraign- ment or no later than forty-five days after arraignment, for the purpose of notification to the division of criminal justice services pursuant to section 380.97 of this part, serve on the defendant and file with the court a notice alleging that the defendant is related or situated to the victim of the crime in the manner specified in 18 U.S.C. 921(a)(33)(A)(ii). S 4. Section 380.97 of the criminal procedure law, as added by chapter 258 of the laws of 2011, is amended to read as follows: S 380.97 Notification to division of criminal justice services of deter- minations in certain misdemeanor cases. Upon judgment of conviction of assault or attempted assault in the third degree, as defined in sections 120.00 and 110.00 of the penal law, menacing or attempted menacing in the second degree, as defined in section 120.14 and 110.00 of the penal law, DOMESTIC ABUSE OR ATTEMPTED DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED IN SECTIONS 120.80 AND 110.00 OF THE PENAL LAW, criminal obstruction of breathing or blood circulation or attempted criminal obstruction of breathing or blood circulation, as defined in sections 121.11 and 110.00 of the penal law, forcible touching or attempted forcible touching, as defined in sections 130.52 and 110.00 of the penal law, when the defendant has been deter- mined, pursuant to section 370.15 of this part, to be related or situ- ated to the victim of the offense in the manner specified in 18 U.S.C. 921(a)(33)(A)(ii), the clerk of the court shall include notification and a copy of the written determination in a report of such conviction to the division of criminal justice services to enable the division to report such determination to the federal bureau of investigation and assist the bureau in identifying persons prohibited from purchasing and possessing a firearm pursuant to the provisions of 18 U.S.C. 922. S 5. The opening paragraph of subdivision 1 of section 530.11 of the criminal procedure law, as amended by chapter 405 of the laws of 2010, is amended to read as follows:
The family court and the criminal courts shall have concurrent juris- diction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, DOMESTIC ABUSE IN THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND DEGREE, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminal- ly responsible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in fami- ly court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. For purposes of this section, "disorderly conduct" includes disorderly conduct not in a public place. For purposes of this section, "members of the same fami- ly or household" with respect to a proceeding in the criminal courts shall mean the following: S 6. The opening paragraph of subdivision 1 of section 812 of the family court act, as separately amended by chapters 341 and 405 of the laws of 2010, is amended to read as follows: The family court and the criminal courts shall have concurrent juris- diction over any proceeding concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, DOMESTIC ABUSE IN THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND DEGREE, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, criminal obstruction of breath- ing or blood circulation, strangulation in the second degree, strangula- tion in the first degree, assault in the second degree, assault in the third degree or an attempted assault, criminal obstruction of breathing or blood circulation or strangulation between spouses or former spouses, or between parent and child or between members of the same family or household except that if the respondent would not be criminally respon- sible by reason of age pursuant to section 30.00 of the penal law, then the family court shall have exclusive jurisdiction over such proceeding. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to hear a family offense proceeding pursuant to this section. In any proceeding pursuant to this article, a court shall not deny an order of protection, or dismiss a petition, solely on the basis that the acts or events alleged are not relatively contemporaneous with the date of the petition, the conclusion of the fact-finding or the conclusion of the dispositional hearing. For purposes of this article, "disorderly conduct" includes
disorderly conduct not in a public place. For purposes of this article, "members of the same family or household" shall mean the following: S 7. This act shall take effect on the first of November next succeed- ing the date on which it shall have become a law.

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