Relates to criminal contempt in the first degree.
Ayes (56): Adams, Addabbo, Alesi, Avella, Ball, Bonacic, Breslin, Carlucci, DeFrancisco, Diaz, Dilan, Duane, Espaillat, Farley, Flanagan, Fuschillo, Gallivan, Gianaris, Golden, Griffo, Grisanti, Hassell-Thomps, Huntley, Johnson, Kennedy, Klein, Krueger, Lanza, Larkin, LaValle, Libous, Little, Marcellino, Maziarz, McDonald, Nozzolio, O'Mara, Oppenheimer, Peralta, Perkins, Ranzenhofer, Ritchie, Rivera, Robach, Saland, Sampson, Savino, Serrano, Seward, Skelos, Smith, Squadron, Stavisky, Stewart-Cousin, Young, Zeldin
Nays (2): Montgomery, Parker
Excused (3): Hannon, Martins, Valesky
TITLE OF BILL: An act to amend the penal law, in relation to criminal contempt in the first degree
PURPOSE OF BILL: This bill would enhance protections for domestic violence victims and their children by amending the class E felony of Criminal Contempt in the First Degree to provide that a second violation of any provision of a family offense order of protection would constitute the felony level crime.
SUMMARY OF PROVISIONS: Section 1 of the bill would amend Penal Law § 215.51(c) to provide that a second violation of a family offense order of protection within five years constitutes the felony of Criminal Contempt in the First Degree when the new violation includes conduct that violates any part of the order of protection. It would also remove language that may limit the enhancement of the crime when a defendant violates different provisions of the order of protection.
Section 2 of the bill provides the effective date.
EXISTING LAW: Any intentional violation of an order of protection constitutes at least the class A misdemeanor of Criminal Contempt in the Second Degree under Penal Law § 215.50. A second violation of an order of protection within five years may be elevated to the felony of Criminal Contempt in the First Degree under Penal Law § 215.51(c), but only when the violation is of the "stay away from the person" provision of an order of protection issued under the Domestic Relations Law, the Family Court Act or Criminal Procedure Law 530.12, which apply to crimes between members of the same family or household. However, the felony contempt provisions of Penal Law 215.51(c) do not apply when the violations, even though repeated, are of other provisions of orders of protection. In these cases, a second or subsequent violation of an order of protection remains a misdemeanor.
PRIOR LEGISLATIVE HISTORY: This bill was introduced in 2008 (A.10492/S.7411); it only passed the Senate. In 2009, it was introduced as part of Governor's Program Bill 14 (S.5031/A.9017) but was not part of Chapter 476 of the Laws of 2009. It was amended to respond to some of the concerns that were raised and was introduced in the 2010 session (A.10683), where it remained in committee and was not introduced in the Senate.
STATEMENT IN SUPPORT:
The Penal Law imposes heightened sanctions for repeated violations of family offense orders of protection only when the violations are of the "stay away from the person" provision of the order of protection. When a defendant commits a second violation of this provision within five years, the resulting offense of criminal contempt is, appropriately, elevated from a misdemeanor to a felony. Individuals who disregard court orders show that their behavior is more difficult to control than those who respect court orders. Domestic violence typically consists of a pattern of behavior, often escalating in severity.
First-degree criminal contempt only applies to violations of provisions that require a defendant to stay away from the person or persons on whose behalf the order was issued. Yet orders of protection include other provisions, violations of which are serious, and repeat violations of which should carry similarly enhanced sanctions. See, e.g., Criminal Procedure Law § 530.13(1)(b) (order of protection may require a defendant to "refrain from harassing, intimidating, threatening or otherwise interfering with the victims of the alleged offense").
In People v. Dewall, 15 A.DJd 498 (2d Dep't 2005), the defendant waited outside of the victim's apartment in violation of an order of protection. The defendant was convicted after a jury trial of first-degree criminal contempt, but the Court overturned the conviction stating that the "stay away from the person" provision was not violated since the victim was not physically home when the defendant was stalking her. In People v. White, 188 Misc.2d 394 (S. Ct. N.Y. Co. 2001), the defendant was convicted of second-degree criminal contempt for violating a family court order of protection by threatening to beat up and shoot the victim. The defendant was later arrested for continually breaking into the victim's apartment and assaulting the victim. While incarcerated for this crime, the defendant called the victim from Rikers Island Correctional Facility in violation of an order of protection and was subsequently charged with first-degree criminal contempt. The court held that the defendant was not guilty of felony contempt because a call from jail was not a violation of the "stay away from the person provision."
What is most notable about both of these cases is that each of these defendants was previously convicted of violating orders of protection against the same victim. Yet when they again violated the order of protection by calling the victim from jailor waiting outside of the victim's apartment, the current statute did not provide any increase in penalties for their continual violations. Removing the "stay away from the person" language would ensure an appropriate graduated response so as to properly sanction individuals who repeatedly flout court orders.
Under Penal Law § 215.51(c), the necessary underlying conviction must be a violation of an order of protection "as described herein."
Some courts have interpreted this language to mean that both the current violation and the underlying violation must be for a violation of the "stay away from the person" provision. People v. Swartout, 7 Mise.3d 549 (S. Ct. Tompkins Co. 2005). The "certificate of conviction" used to elevate a charge typically states that a defendant was convicted of second-degree criminal contempt but does not necessarily state which provision of the order of protection was violated. Removing the "described herein" language would enable prosecutors to use convictions for violations of any provision of prior orders of protection under criminal contempt in the second degree. As with the preceding proposed amendment, this would result in an increase in punishment for repeated violations of orders of protections.
BUDGET IMPLICATIONS: This bill would have no budgetary impact.
EFFECTIVE DATE: This bill would take effect 30 days after it becomes a law.
STATE OF NEW YORK ________________________________________________________________________ 6674 IN SENATE March 8, 2012 ___________Introduced by Sen. SALAND -- (at request of the Office for Prevention of Domestic Violence) -- 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 criminal contempt in the first degree THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. Subdivision (c) of section 215.51 of the penal law, as amended by chapter 349 of the laws of 2006, is amended to read as follows: (c) he or she commits the crime of criminal contempt in the second degree as defined in subdivision three of section 215.50 of this article by violating
[that part of]a duly served order of protection, or such order of which the defendant has actual knowledge because he or she was present in court when such order was issued, under sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal juris- diction, [which requires the respondent or defendant to stay away from the person or persons on whose behalf the order was issued,]and where the defendant has been previously convicted of the crime of aggravated criminal contempt or criminal contempt in the first or second degree for violating an order of protection [as described herein]within the preceding five years; or S 2. This act shall take effect on the thirtieth day after it shall have become law.EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD14485-02-2