Bill S6357-2011

Creates the crimes of domestic abuse in the first, second and third degrees; creates a judicial diversion program for domestic abuse defendants

Creates the crimes of domestic abuse in the first, second and third degrees; creates a judicial diversion program for domestic abuse defendants.

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  • Feb 1, 2012: REFERRED TO CODES

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BILL NUMBER:S6357

TITLE OF BILL: An act to amend the penal law, in relation to the crime of domestic abuse; and to amend the criminal procedure law, in relation to a judicial diversion program for domestic abuse defendants

PURPOSE OF THE BILL: This bill will create the crime of domestic violence in the first, second and third degrees. It also creates a judicial diversion program for domestic abuse defendants. This will be a not-for-profit organization whose goal is to end abusive behavior.

SUMMARY OF PROVISIONS: Section 1 of this legislation will define the different levels of domestic violence. This section defines what domestic violence in the first, second and third degree with consist of. Section 2 adds a new section to the criminal procedure law by adding article 217 which will create a judicial diversion program for domestic abuse defendants.

JUSTIFICATION: Domestic violence is often a difficult crime for law officials to get involved with. This legislation breaks down the crime into first, second and third degree domestic violence charges. Domestic violence in the third degree will be considered a class B misdemeanor. Charges can be bought against a person if they kick, shove, strike or threaten their partner. Domestic violence in the second degree will be considered a class A misdemeanor. Individuals facing charges of domestic violence in the second degree have intentionally causes their partner physical injury. Domestic violence in the first degree will be considered a class E felony. A person will be charged with domestic violence in the first degree if they have used a deadly weapon during the abuse or if he or she commits the crimes of domestic abuse in the second degree and has previously been convicted of the crime of domestic abuse in any degree as defined within the preceding five years.

This legislation also creates a judicial diversion program for domestic abuse defendants. This will be a program that is operated by the public or not-for-profit whose end goal will be to end abusive behavior of the defendants. It will be mandatory for individuals to partake in the program if they have committed the crime of domestic violence as defined in the previous section. If a person fails to show up to the program, it will be considered a violation of a court's agreement with the defendant. If a domestic violence offender pleads guilty to their crime, they will be eligible for this program.

This domestic violence package is important for individuals who have faced domestic abuse. Currently domestic violence is a misdemeanor no matter how many times they have been charged with the crime. The creation of domestic violence in the first degree creates a deterrent for those who are violent domestic violence abusers and will prevent a repeat offense.

Many times, victims of domestic abuse want to help their partner and rehabilitate them. The judicial diversion program for domestic abuse defendants allow a defendant to plead guilty to the most serious crime and undergo treatment with permission of the Court. If a person completes the programs, they can plead guilty to a less serious charge of domestic violence.

PRIOR LEGISLATIVE HISTORY: 2012 - Same as A.3458 2010 - S.6942/A.9852

FISCAL IMPLICATIONS FOR STATE: To be determined.

EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.


Text

STATE OF NEW YORK ________________________________________________________________________ 6357 IN SENATE February 1, 2012 ___________
Introduced by Sen. KENNEDY -- read twice and ordered printed, and when printed to be committed to the Committee on Codes AN ACT to amend the penal law, in relation to the crime of domestic abuse; and to amend the criminal procedure law, in relation to a judi- cial diversion program for domestic abuse defendants 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 120.80, 120.83 and 120.85 to read as follows: S 120.80 DOMESTIC ABUSE IN THE THIRD DEGREE. A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE THIRD 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 STRIKES, SHOVES, KICKS, OR OTHERWISE SUBJECTS SUCH PERSON TO PHYSICAL CONTACT OR ATTEMPTS OR THREATENS TO DO THE SAME. FOR PURPOSES OF THIS SECTION, "SPOUSE" SHALL MEAN PERSONS LEGALLY MARRIED TO ONE ANOTHER, "FORMER SPOUSE" SHALL MEAN PERSONS FORMERLY MARRIED TO ONE ANOTHER REGARDLESS OF WHETHER THEY STILL RESIDE IN THE SAME HOUSEHOLD, "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN PERSONS WHO HAVE A CHILD IN COMMON REGARDLESS OF WHETHER SUCH PERSONS HAVE BEEN MARRIED OR HAVE LIVED TOGETHER, AND "DOMESTIC PARTNER" SHALL MEAN PERSONS WHO ARE LIVING OR HAVE LIVED TOGETHER FOR AN EXTENDED DURATION IN AN INTIMATE RELATIONSHIP MARKED BY SEXUAL, PHYSICAL, OR FINANCIAL INTERDEPENDENCE. DOMESTIC ABUSE IN THE THIRD DEGREE IS A CLASS B MISDEMEANOR. S 120.83 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, AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, HE OR SHE CAUSES SUCH PERSON PHYSICAL INJURY. 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. (A) WITH INTENT TO CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER, AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, HE OR SHE CAUSES SUCH INJURY TO SUCH PERSON OR TO A THIRD PERSON; OR (B) HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER, AS DEFINED IN SECTION 120.80 OF THIS ARTICLE; OR (C) 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, AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, BY MEANS OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; OR 2. HE OR SHE COMMITS THE CRIME OF DOMESTIC ABUSE IN THE SECOND DEGREE AND HAS PREVIOUSLY BEEN CONVICTED OF THE CRIME OF DOMESTIC ABUSE IN ANY DEGREE AS DEFINED IN THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS. DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY. S 2. The criminal procedure law is amended by adding a new article 217 to read as follows: ARTICLE 217 JUDICIAL DIVERSION PROGRAM FOR DOMESTIC ABUSE DEFENDANTS SECTION 217.00 DEFINITIONS. 217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES. S 217.00 DEFINITIONS. THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE: 1. "ELIGIBLE DEFENDANT" SHALL MEAN ANY PERSON WHO STANDS CHARGED WITH DOMESTIC ABUSE AS DEFINED IN SECTIONS 120.80, 120.83 AND 120.85 OF THE PENAL LAW, PROVIDED, HOWEVER, A DEFENDANT IS NOT AN "ELIGIBLE DEFENDANT" IF HE OR SHE: (A) WITHIN THE PRECEDING TEN YEARS, EXCLUDING ANY TIME DURING WHICH THE OFFENDER WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMIS- SION OF THE PREVIOUS OFFENSE AND THE TIME OF COMMISSION OF THE PRESENT OFFENSE, HAS PREVIOUSLY BEEN CONVICTED OF: (I) A VIOLENT FELONY OFFENSE AS DEFINED IN SECTION 70.02 OF THE PENAL LAW OR (II) ANY OTHER OFFENSE FOR WHICH A MERIT TIME ALLOWANCE IS NOT AVAILABLE PURSUANT TO SUBPARA- GRAPH (II) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED THREE OF THE CORRECTION LAW; OR (B) HAS PREVIOUSLY BEEN ADJUDICATED A SECOND VIOLENT FELONY OFFENDER PURSUANT TO SECTION 70.04 OF THE PENAL LAW OR A PERSISTENT VIOLENT FELO- NY OFFENDER PURSUANT TO SECTION 70.08 OF THE PENAL LAW. 2. "DOMESTIC VIOLENCE PROGRAM" SHALL MEAN A PROGRAM WHICH IS OPERATED BY A PUBLIC OR NOT-FOR-PROFIT ORGANIZATION FOR THE PURPOSE OF PROVIDING DOMESTIC VIOLENCE PREVENTION WHOSE GOAL IS TO HELP ELIGIBLE DEFENDANTS END ABUSIVE BEHAVIOR. S 217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES. 1. AT ANY TIME AFTER THE ARRAIGNMENT OF AN ELIGIBLE DEFENDANT, BUT PRIOR TO THE ENTRY OF A PLEA OF GUILTY OR THE COMMENCEMENT OF TRIAL, THE COURT MAY DETERMINE THAT AN ELIGIBLE DEFENDANT SHOULD BE OFFERED JUDI- CIAL DIVERSION IN A DOMESTIC VIOLENCE PROGRAM. AN ELIGIBLE DEFENDANT MAY DECLINE TO PARTICIPATE IN SUCH A PROGRAM AT ANY TIME. PRIOR TO THE COURT'S ISSUING AN ORDER GRANTING JUDICIAL DIVERSION, THE ELIGIBLE DEFENDANT SHALL BE REQUIRED TO ENTER A PLEA OF GUILTY TO THE CHARGE OR CHARGES; PROVIDED, HOWEVER, THAT NO GUILTY PLEA SHALL BE REQUIRED WHEN: (A) THE PEOPLE AND THE COURT CONSENT TO THE ENTRY OF SUCH AN ORDER WITHOUT A PLEA OF GUILTY; OR (B) BASED ON A FINDING OF EXCEPTIONAL CIRCUMSTANCES, THE COURT DETER- MINES THAT A PLEA OF GUILTY SHALL NOT BE REQUIRED. FOR PURPOSES OF THIS SUBDIVISION, EXCEPTIONAL CIRCUMSTANCES EXIST WHEN, REGARDLESS OF THE
ULTIMATE DISPOSITION OF THE CASE, THE ENTRY OF A PLEA OF GUILTY IS LIKE- LY TO RESULT IN SEVERE COLLATERAL CONSEQUENCES. 2. THE ELIGIBLE DEFENDANT SHALL AGREE ON THE RECORD OR IN WRITING TO ABIDE BY THE RELEASE CONDITIONS SET BY THE COURT, WHICH, SHALL INCLUDE: PARTICIPATION IN A SPECIFIED DOMESTIC VIOLENCE PROGRAM; PERIODIC COURT APPEARANCES; AND A REQUIREMENT THAT THE DEFENDANT REFRAIN FROM ENGAGING IN CRIMINAL BEHAVIORS. 3. UPON AN ELIGIBLE DEFENDANT'S AGREEMENT TO ABIDE BY THE CONDITIONS SET BY THE COURT, THE COURT SHALL ISSUE A SECURING ORDER PROVIDING FOR BAIL OR RELEASE ON THE DEFENDANT'S OWN RECOGNIZANCE AND CONDITIONING ANY RELEASE UPON THE AGREED UPON CONDITIONS. THE DOMESTIC VIOLENCE PROGRAM SHALL BEGIN AS SPECIFIED BY THE COURT AND AS SOON AS PRACTICABLE AFTER THE DEFENDANT'S RELEASE. IN THE EVENT THAT A DOMESTIC VIOLENCE PROGRAM IS NOT IMMEDIATELY AVAILABLE OR BECOMES UNAVAILABLE DURING THE COURSE OF THE DEFENDANT'S PARTICIPATION IN THE JUDICIAL DIVERSION PROGRAM, THE COURT MAY RELEASE THE DEFENDANT PURSUANT TO THE SECURING ORDER. 4. DURING THE PERIOD OF A DEFENDANT'S PARTICIPATION IN THE JUDICIAL DIVERSION PROGRAM, THE COURT SHALL RETAIN JURISDICTION OF THE DEFENDANT. THE COURT MAY REQUIRE THE DEFENDANT TO APPEAR IN COURT AT ANY TIME TO ENABLE THE COURT TO MONITOR THE DEFENDANT'S PROGRESS IN THE PROGRAM. THE COURT SHALL PROVIDE NOTICE, REASONABLE UNDER THE CIRCUMSTANCES, TO THE PEOPLE, THE DOMESTIC VIOLENCE PROGRAM PROVIDER, THE DEFENDANT AND THE DEFENDANT'S COUNSEL WHENEVER IT ORDERS OR OTHERWISE REQUIRES THE APPEAR- ANCE OF THE DEFENDANT IN COURT. FAILURE TO APPEAR AS REQUIRED WITHOUT REASONABLE CAUSE THEREFOR SHALL CONSTITUTE A VIOLATION OF THE CONDITIONS OF THE COURT'S AGREEMENT WITH THE DEFENDANT. 5. UPON THE COURT'S DETERMINATION THAT THE DEFENDANT HAS SUCCESSFULLY COMPLETED THE DOMESTIC VIOLENCE PROGRAM AND HAS OTHERWISE SATISFIED THE CONDITIONS REQUIRED FOR SUCCESSFUL COMPLETION OF THE JUDICIAL DIVERSION PROGRAM, THE COURT SHALL COMPLY WITH THE TERMS AND CONDITIONS IT SET FOR FINAL DISPOSITION WHEN IT ACCEPTED THE DEFENDANT'S AGREEMENT TO PARTIC- IPATE IN THE JUDICIAL DIVERSION PROGRAM. SUCH DISPOSITION MAY INCLUDE, BUT IS NOT LIMITED TO: (A) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION SUPERVISION AND, UPON THE DEFENDANT'S SUCCESSFUL COMPLETION OF THE INTERIM PROBATION SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA AND DISMISSING THE INDICTMENT; OR (B) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION SUPERVISION AND, UPON SUCCESSFUL COMPLETION OF THE INTERIM PROBATION SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA, ENTER A GUILTY PLEA TO A MISDEMEANOR OFFENSE AND SENTENCING THE DEFENDANT AS PROMISED IN THE PLEA AGREEMENT, WHICH MAY INCLUDE A PERIOD OF PROBATION SUPERVISION PURSUANT TO SECTION 65.00 OF THE PENAL LAW; OR (C) ALLOWING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA AND DISMISSING THE INDICTMENT. S 3. This act shall take effect on the ninetieth day after it shall have become a law.

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