Bill S5822-2011

Establishes the crime of aggravated domestic violence

Establishes the crime of aggravated family offense when a person has committed a specified offense and has been convicted of one or more specified offenses within the past five years.

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  • Jan 4, 2012: REFERRED TO CODES
  • Jun 17, 2011: REFERRED TO RULES

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BILL NUMBER:S5822

TITLE OF BILL: An act to amend the penal law and the criminal procedure law, in relation to the creation of the crime of aggravated family offense

PURPOSE: To create a felony-level charge for cases in which an offender is repeatedly convicted of a family offense.

SUMMARY OF PROVISIONS: Section 1 establishes the crime of Aggravated Family Offense as a class E felony and outlines the incidents that constitute the new offense.

Section 2 provides that a special information may be included with an indictment of an aggravated family offense. This section sets forth the procedure for trying the case.

Section 3 establishes an effective dare of 90 days after passage.

JUSTIFICATION: From 2004 to 2009, in New York. County alone, there were 622 individuals convicted of two or more family offenses. Of those 622 defendants, 221 - or 36% had at least one case with a felony-level assault charge.

The following cases from the New York County District Attorney's Office illustrate the types of cases that prosecutors see every day:

* After a long misdemeanor domestic violence history, involving multiple assaults and violations of orders of protection, a defendant chased his girlfriend down the street with a machete, biting and clawing at her in front of her three-year-old child.

* Shortly after pleading guilty to assaulting his spouse in front of their children, a defendant went back to victim's apartment and hit her in the face. Only $500 cash bail was Set when defendant was arrested again.

* A defendant has 132 prior convictions, many of which stemmed from assaults against his partner. The defendant recently served 9 months in jail for an assault against his daughter. Since his release on that case, the defendant has been arrested again for domestic assault.

* One repeat domestic violence offender assaults his girlfriend each time he is released from custody. Most recently, he was indicted for biting the victim's face.

* After badly beating his pregnant ex-girlfriend, a defendant was arrested. He continued to call his ex-girlfriend, threatening her from jail. He was re-arrested, and pleaded guilty to both cases. * A defendant with two prior convictions for assaulting his girlfriend was recently rearrested and currently charged with a felony.

LEGISLATIVE HISTORY: S.8039, A.11365 of 2010 (Squadron/Rosenthal)

FISCAL IMPLICATIONS: None.

LOCAL FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: 90 days after becoming law.


Text

STATE OF NEW YORK ________________________________________________________________________ 5822 2011-2012 Regular Sessions IN SENATE June 17, 2011 ___________
Introduced by Sens. GOLDEN, LANZA, SQUADRON -- read twice and ordered printed, and when printed to be committed to the Committee on Rules AN ACT to amend the penal law and the criminal procedure law, in relation to the creation of the crime of aggravated family offense 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 a new section 240.75 to read as follows: S 240.75 AGGRAVATED FAMILY OFFENSE. 1. A PERSON IS GUILTY OF AGGRAVATED FAMILY OFFENSE WHEN HE OR SHE COMMITS A MISDEMEANOR DEFINED IN SUBDIVISION TWO OF THIS SECTION AS A SPECIFIED OFFENSE AND HE OR SHE HAS BEEN CONVICTED OF ONE OR MORE SPECI- FIED OFFENSES WITHIN THE IMMEDIATELY PRECEDING FIVE YEARS. FOR THE PURPOSES OF THIS SUBDIVISION, IN CALCULATING THE FIVE YEAR PERIOD, ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF THE COMMISSION OF ANY OF SUCH PREVIOUS OFFENSES AND THE TIME OF COMMISSION OF THE PRESENT CRIME SHALL BE EXCLUDED AND SUCH FIVE YEAR PERIOD SHALL BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED UNDER SUCH INCARCERATION. 2. A "SPECIFIED OFFENSE" IS AN OFFENSE DEFINED IN SECTION 120.00 (ASSAULT IN THE THIRD DEGREE); SECTION 120.05 (ASSAULT IN THE SECOND DEGREE); SECTION 120.10 (ASSAULT IN THE FIRST DEGREE); SECTION 120.13 (MENACING IN THE FIRST DEGREE); SECTION 120.14 (MENACING IN THE SECOND DEGREE); SECTION 120.15 (MENACING IN THE THIRD DEGREE); SECTION 120.20 (RECKLESS ENDANGERMENT IN THE SECOND DEGREE); SECTION 120.25 (RECKLESS ENDANGERMENT IN THE FIRST DEGREE); SECTION 120.45 (STALKING IN THE FOURTH DEGREE); SECTION 120.50 (STALKING IN THE THIRD DEGREE); SECTION 120.55 (STALKING IN THE SECOND DEGREE); SECTION 120.60 (STALKING IN THE FIRST DEGREE); SECTION 121.11 (CRIMINAL OBSTRUCTION OF BREATHING OR BLOOD CIRCULATION); SECTION 121.12 (STRANGULATION IN THE SECOND DEGREE); SECTION 121.13 (STRANGULATION IN THE FIRST DEGREE); SUBDIVISION ONE OF
SECTION 125.15 (MANSLAUGHTER IN THE SECOND DEGREE); SUBDIVISION ONE, TWO OR FOUR OF SECTION 125.20 (MANSLAUGHTER IN THE FIRST DEGREE); SECTION 125.25 (MURDER IN THE SECOND DEGREE); SECTION 130.20 (SEXUAL MISCON- DUCT); SECTION 130.30 (RAPE IN THE SECOND DEGREE); SECTION 130.35 (RAPE IN THE FIRST DEGREE); SECTION 130.40 (CRIMINAL SEXUAL ACT IN THE THIRD DEGREE); SECTION 130.45 (CRIMINAL SEXUAL ACT IN THE SECOND DEGREE); SECTION 130.50 (CRIMINAL SEXUAL ACT IN THE FIRST DEGREE); SECTION 130.52 (FORCIBLE TOUCHING); SECTION 130.53 (PERSISTENT SEXUAL ABUSE); SECTION 130.55 (SEXUAL ABUSE IN THE THIRD DEGREE); SECTION 130.60 (SEXUAL ABUSE IN THE SECOND DEGREE); SECTION 130.65 (SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 130.66 (AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE); SECTION 130.67 (AGGRAVATED SEXUAL ABUSE IN THE SECOND DEGREE); SECTION 130.70 (AGGRAVATED SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 130.91 (SEXUALLY MOTIVATED FELONY); SECTION 130.95 (PREDATORY SEXUAL ASSAULT); SECTION 130.96 (PREDATORY SEXUAL ASSAULT AGAINST A CHILD); SECTION 135.05 (UNLAWFUL IMPRISONMENT IN THE SECOND DEGREE); SECTION 135.10 (UNLAWFUL IMPRISONMENT IN THE FIRST DEGREE); SECTION 135.60 (COERCION IN THE SECOND DEGREE); SECTION 135.65 (COERCION IN THE FIRST DEGREE); SECTION 140.20 (BURGLARY IN THE THIRD DEGREE); SECTION 140.25 (BURGLARY IN THE SECOND DEGREE); SECTION 140.30 (BURGLARY IN THE FIRST DEGREE); SECTION 145.00 (CRIMINAL MISCHIEF IN THE FOURTH DEGREE); SECTION 145.05 (CRIMINAL MISCHIEF IN THE THIRD DEGREE); SECTION 145.10 (CRIMINAL MISCHIEF IN THE SECOND DEGREE); SECTION 145.12 (CRIMINAL MISCHIEF IN THE FIRST DEGREE); SECTION 145.14 (CRIMINAL TAMPERING IN THE THIRD DEGREE); SECTION 215.50 (CRIMINAL CONTEMPT IN THE SECOND DEGREE); SECTION 215.51 (CRIMINAL CONTEMPT IN THE FIRST DEGREE); SECTION 215.52 (AGGRAVATED CRIMINAL CONTEMPT); SECTION 240.25 (HARASSMENT IN THE FIRST DEGREE); SUBDIVISION ONE, TWO OR FOUR OF SECTION 240.30 (AGGRAVATED HARASSMENT IN THE SECOND DEGREE); AGGRAVATED FAMILY OFFENSE AS DEFINED IN THIS SECTION OR ANY ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING OFFENSES WHERE THE DEFENDANT AND THE PERSON AGAINST WHOM THE OFFENSE WAS COMMIT- TED WERE MEMBERS OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVI- SION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW. 3. THE PERSON AGAINST WHOM THE CURRENT SPECIFIED OFFENSE IS COMMITTED MAY BE DIFFERENT FROM THE PERSON AGAINST WHOM THE PREVIOUS SPECIFIED OFFENSE WAS COMMITTED AND SUCH PERSONS DO NOT NEED TO BE MEMBERS OF THE SAME FAMILY OR HOUSEHOLD. AGGRAVATED FAMILY OFFENSE 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 AGGRAVATED FAMILY OFFENSE. 1. WHENEVER A PERSON IS CHARGED WITH THE COMMISSION OR ATTEMPTED COMMISSION OF AN AGGRAVATED FAMILY OFFENSE AS DEFINED IN SECTION 240.75 OF THE PENAL LAW, AN INDICTMENT OR INFORMATION FOR SUCH OFFENSE SHALL BE ACCOMPANIED BY A SPECIAL INFORMATION, FILED BY THE DISTRICT ATTORNEY WITH THE COURT, ALLEGING THAT THE DEFENDANT WAS PREVIOUSLY CONVICTED OF A SPECIFIED OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION 240.75 OF THE PENAL LAW, THAT AT THE TIME OF THE PREVIOUS OFFENSE THE DEFENDANT AND THE PERSON AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, AND THAT SUCH PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF THE PENAL LAW. EXCEPT AS PROVIDED HEREIN, THE PEOPLE MAY NOT REFER TO SUCH SPECIAL INFORMATION DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING THE ALLEGATIONS THEREIN.
2. PRIOR TO THE COMMENCEMENT OF THE TRIAL, THE COURT, IN THE ABSENCE OF THE JURY, MUST ARRAIGN THE DEFENDANT UPON SUCH INFORMATION AND ADVISE HIM OR HER THAT HE OR SHE MAY ADMIT EACH SUCH ALLEGATION, 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 INFORMA- TION MUST THEN PROCEED AS FOLLOWS: (A)(I) IF THE PREVIOUS CONVICTION IS FOR AN AGGRAVATED FAMILY OFFENSE AS DEFINED IN SECTION 240.75 OF THE PENAL LAW, AND THE DEFENDANT ADMITS THE PREVIOUS CONVICTION OR THAT IT TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF THE PENAL LAW, SUCH ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR THE PURPOSES OF THE PRESENT PROSECUTION, INCLUDING SENTENCING PURSUANT TO SECTION 70.00 OF THE PENAL LAW. THE COURT MUST SUBMIT THE CASE TO THE JURY AS IF SUCH ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE WITH RESPECT TO IT, THE PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT, 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 ONE OF SECTION 240.75 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 SPECIFIED OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION 240.75 OF THE PENAL LAW, OTHER THAN AN AGGRAVATED FAMILY OFFENSE, AND THE DEFENDANT ADMITS SUCH PREVI- OUS CONVICTION, THAT IT TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF THE PENAL LAW, OR THAT THE DEFEND- ANT AND THE PERSON AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, SUCH ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR THE PURPOSES OF THE PRESENT PROSECUTION, INCLUD- ING 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 ALLE- GATIONS WERE NOT ELEMENTS OF THE OFFENSE. (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE WITH RESPECT TO IT, THE PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT, 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 ONE OF SECTION 240.75 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. (IV) IF THE DEFENDANT DENIES THAT THE DEFENDANT AND THE PERSON AGAINST WHOM THE PREVIOUS OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT, THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE. S 3. This act shall take effect on the ninetieth day after it shall have become a law.

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