LBD00172-01-9
A. 1507 2
PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE
STATED UPON THE ORDER OF PROTECTION. In addition to any other condi-
tions, such an order may require the defendant:
S 2. The opening paragraph of subdivision 5 of section 530.12 of the
criminal procedure law, as amended by section 2 of chapter 384 of the
laws of 2001, is amended to read as follows:
Upon conviction of any crime or violation between spouses, parent and
child, or between members of the same family or household, the court may
in addition to any other disposition, including a conditional discharge
or youthful offender adjudication, enter an order of protection. Where a
temporary order of protection was issued, the court shall state on the
record the reasons for issuing or not issuing an order of protection.
The duration of such an order shall be fixed by the court and, in the
case of a felony conviction, shall not exceed the greater of: (i) five
years from the date of such conviction, or (ii) three years from the
date of the expiration of the maximum term of an indeterminate sentence
of imprisonment actually imposed; or in the case of a conviction for a
class A misdemeanor, shall not exceed three years from the date of such
conviction; or in the case of a conviction for any other offense, shall
not exceed one year from the date of conviction. For purposes of deter-
mining the duration of an order of protection entered pursuant to this
subdivision, a conviction shall be deemed to include a conviction that
has been replaced by a youthful offender adjudication. IF THE COURT
FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVISION FIVE-A OF
THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF PROTECTION FOR A
FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR
MAY ENTER A PERMANENT ORDER OF PROTECTION. THE COURT'S FINDING OF AGGRA-
VATING CIRCUMSTANCES SHALL BE STATED UPON THE ORDER OF PROTECTION. In
addition to any other conditions, such an order may require the defend-
ant:
S 3. Section 530.12 of the criminal procedure law is amended by adding
a new subdivision 5-a to read as follows:
5-A. FOR THE PURPOSES OF SUBDIVISION FIVE OF THIS SECTION, "AGGRAVAT-
ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
TO THE COMPLAINANT CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS
INSTRUMENT AGAINST THE COMPLAINANT BY THE DEFENDANT, A HISTORY OF
REPEATED VIOLATIONS OF PRIOR ORDERS OF PROTECTION BY THE DEFENDANT,
PRIOR CONVICTIONS FOR CRIMES AGAINST THE COMPLAINANT BY THE DEFENDANT OR
THE EXPOSURE OF ANY FAMILY OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE
DEFENDANT, AND LIKE INCIDENTS, BEHAVIORS, AND OCCURRENCES WHICH TO THE
COURT CONSTITUTE AN IMMEDIATE AND ONGOING DANGER TO THE COMPLAINANT OR
ANY MEMBER OF THE COMPLAINANT'S FAMILY OR HOUSEHOLD.
S 4. The closing paragraph of subdivision 6 of section 530.12 of the
criminal procedure law, as added by chapter 222 of the laws of 1994, is
amended to read as follows:
[Such] WHEN AN ORDER OF PROTECTION IS OF FIXED DURATION, THE order of
protection shall plainly state the date that such order expires, AND
WHERE THE ORDER IS OF PERMANENT DURATION, THE ORDER SHALL CLEARLY SO
STATE.
S 5. Subdivision 15 of section 530.12 of the criminal procedure law,
as amended by chapter 186 of the laws of 1997, is amended to read as
follows:
15. Any motion to vacate or modify an order of protection, INCLUDING A
PERMANENT ORDER OF PROTECTION, or A temporary order of protection shall
be MADE on notice to the non-moving party, except as provided in subdi-
vision three-b of this section.
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S 6. The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by chapter 215 of the laws of 2006,
is amended to read as follows:
Upon conviction of any offense, where the court has not issued an
order of protection pursuant to section 530.12 of this article, the
court may, in addition to any other disposition, including a conditional
discharge or youthful offender adjudication, enter an order of
protection. Where a temporary order of protection was issued, the court
shall state on the record the reasons for issuing or not issuing an
order of protection. The duration of such an order shall be fixed by the
court and, in the case of a felony conviction, shall not exceed the
greater of: (i) eight years from the date of such conviction, or (ii)
eight years from the date of the expiration of the maximum term of an
indeterminate or the term of a determinate sentence of imprisonment
actually imposed; or in the case of a conviction for a class A misdemea-
nor, shall not exceed five years from the date of such conviction; or in
the case of a conviction for any other offense, shall not exceed two
years from the date of conviction. For purposes of determining the dura-
tion of an order of protection entered pursuant to this subdivision, a
conviction shall be deemed to include a conviction that has been
replaced by a youthful offender adjudication. IF THE COURT FINDS THAT
AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVISION FOUR-A OF THIS
SECTION EXIST, THE COURT MAY ENTER AN ORDER OF PROTECTION FOR A FIXED
PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR MAY
ENTER A PERMANENT ORDER OF PROTECTION. THE COURT'S FINDING OF AGGRAVAT-
ING CIRCUMSTANCES SHALL BE STATED UPON THE ORDER OF PROTECTION. In addi-
tion to any other conditions such an order may require that the defend-
ant:
S 7. The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by section 4 of chapter 384 of the
laws of 2001, is amended to read as follows:
Upon conviction of any offense, where the court has not issued an
order of protection pursuant to section 530.12 of this article, the
court may, in addition to any other disposition, including a conditional
discharge or youthful offender adjudication, enter an order of
protection. Where a temporary order of protection was issued, the court
shall state on the record the reasons for issuing or not issuing an
order of protection. The duration of such an order shall be fixed by
the court and, in the case of a felony conviction, shall not exceed the
greater of: (i) five years from the date of such conviction, or (ii)
three years from the date of the expiration of the maximum term of an
indeterminate sentence of imprisonment actually imposed; or in the case
of a conviction for a class A misdemeanor, shall not exceed three years
from the date of such conviction; or in the case of a conviction for any
other offense, shall not exceed one year from the date of conviction.
For purposes of determining the duration of an order of protection
entered pursuant to this subdivision, a conviction shall be deemed to
include a conviction that has been replaced by a youthful offender adju-
dication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED
IN SUBDIVISION FOUR-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN
ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT
TERMS SET FORTH ABOVE, OR MAY ENTER A PERMANENT ORDER OF PROTECTION. THE
COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE
ORDER OF PROTECTION. In addition to any other conditions such an order
may require that the defendant:
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S 8. Section 530.13 of the criminal procedure law is amended by adding
two new subdivisions 4-a and 10 to read as follows:
4-A. FOR THE PURPOSES OF SUBDIVISION FOUR OF THIS SECTION, "AGGRAVAT-
ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
TO THE VICTIM CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS INSTRUMENT
AGAINST THE VICTIM BY THE DEFENDANT, A HISTORY OF REPEATED VIOLATIONS OF
PRIOR ORDERS OF PROTECTION BY THE DEFENDANT, PRIOR CONVICTIONS FOR
CRIMES AGAINST THE VICTIM BY THE DEFENDANT OR THE EXPOSURE OF ANY FAMILY
OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE DEFENDANT, AND LIKE INCI-
DENTS, BEHAVIORS, AND OCCURRENCES WHICH TO THE COURT CONSTITUTE AN IMME-
DIATE AND ONGOING DANGER TO THE VICTIM, OR ANY MEMBER OF THE VICTIM'S
FAMILY OR HOUSEHOLD.
10. ANY MOTION TO VACATE OR MODIFY AN ORDER OF PROTECTION, INCLUDING A
PERMANENT ORDER OF PROTECTION, OR A TEMPORARY ORDER OF PROTECTION SHALL
BE MADE ON NOTICE TO THE NON-MOVING PARTY.
S 9. Section 842 of the family court act, as amended by chapter 222 of
the laws of 1994, the opening paragraph as amended by chapter 579 of the
laws of 2003, subdivisions (a), (b), (c), (d) and (e) as amended by
chapter 483 of the laws of 1995, subdivision (i) as added by chapter 253
of the laws of 2006, subdivision (j) as added by chapter 483 of the laws
of 1995 and as relettered by chapter 253 of the laws of 2006, the third
undesignated paragraph as amended by chapter 224 of the laws of 1994,
the sixth undesignated paragraph as added by section 8 of part D of
chapter 56 of the laws of 2008, the seventh undesignated paragraph as
amended by chapter 326 of the laws of 2008 and the closing paragraph as
added by chapter 73 of the laws of 2007, is amended to read as follows:
S 842. Order of protection. An order of protection under section eight
hundred forty-one of this part shall set forth reasonable conditions of
behavior to be observed for a period not in excess of two years by the
petitioner or respondent or [for a period not in excess of five years],
upon (i) a finding by the court on the record of the existence of aggra-
vating circumstances as defined in paragraph (vii) of subdivision (a) of
section eight hundred twenty-seven of this article, THE COURT MAY ISSUE
AN ORDER OF PROTECTION FOR A FIXED PERIOD IN EXCESS OF ONE YEAR OR A
PERMANENT ORDER OF PROTECTION; or (ii) a finding by the court on the
record that the conduct alleged in the petition is in violation of a
valid order of protection. Any finding of aggravating circumstances
pursuant to this section shall be stated on the record and upon the
order of protection. Any order of protection issued pursuant to this
section shall specify if an order of probation is in effect. Any order
of protection issued pursuant to this section may require the petitioner
or the respondent:
(a) to stay away from the home, school, business or place of employ-
ment of any other party, the other spouse, the other parent, or the
child, and to stay away from any other specific location designated by
the court, provided that the court shall make a determination, and shall
state such determination in a written decision or on the record, whether
to impose a condition pursuant to this subdivision, provided further,
however, that failure to make such a determination shall not affect the
validity of such order of protection. In making such determination, the
court shall consider, but shall not be limited to consideration of,
whether the order of protection is likely to achieve its purpose in the
absence of such a condition, conduct subject to prior orders of
protection, prior incidents of abuse, extent of past or present injury,
threats, drug or alcohol abuse, and access to weapons;
A. 1507 5
(b) to permit a parent, or a person entitled to visitation by a court
order or a separation agreement, to visit the child at stated periods;
(c) to refrain from committing a family offense, as defined in subdi-
vision one of section eight hundred twelve of this act, or any criminal
offense against the child or against the other parent or against any
person to whom custody of the child is awarded, or from harassing,
intimidating or threatening such persons;
(d) to permit a designated party to enter the residence during a spec-
ified period of time in order to remove personal belongings not in issue
in this proceeding or in any other proceeding or action under this act
or the domestic relations law;
(e) to refrain from acts of commission or omission that create an
unreasonable risk to the health, safety or welfare of a child;
(f) to pay the reasonable counsel fees and disbursements involved in
obtaining or enforcing the order of the person who is protected by such
order if such order is issued or enforced;
(g) to require the respondent to participate in a batterer's education
program designed to help end violent behavior, which may include refer-
ral to drug and alcohol counselling, and to pay the costs thereof if the
person has the means to do so, provided however that nothing contained
herein shall be deemed to require payment of the costs of any such
program by the petitioner, the state or any political subdivision there-
of; [and]
(h) to provide, either directly or by means of medical and health
insurance, for expenses incurred for medical care and treatment arising
from the incident or incidents forming the basis for the issuance of the
order[.]; AND
(i) 1. to refrain from intentionally injuring or killing, without
justification, any companion animal the respondent knows to be owned,
possessed, leased, kept or held by the petitioner or a minor child
residing in the household.
2. "Companion animal", as used in this section, shall have the same
meaning as in subdivision five of section three hundred fifty of the
agriculture and markets law.
(j) to observe such other conditions as are necessary to further the
purposes of protection.
The court may also award custody of the child, during the term of the
order of protection to either parent, or to an appropriate relative
within the second degree. Nothing in this section gives the court power
to place or board out any child or to commit a child to an institution
or agency. The court may also upon the showing of special circumstances
extend [the] AN order of protection [for a reasonable period of time].
Notwithstanding the provisions of section eight hundred seventeen of
this article, where a temporary order of child support has not already
been issued, the court may in addition to the issuance of an order of
protection pursuant to this section, issue an order for temporary child
support in an amount sufficient to meet the needs of the child, without
a showing of immediate or emergency need. The court shall make an order
for temporary child support notwithstanding that information with
respect to income and assets of the respondent may be unavailable. Where
such information is available, the court may make an award for temporary
child support pursuant to the formula set forth in subdivision one of
section four hundred thirteen of this act. Temporary orders of support
issued pursuant to this article shall be deemed to have been issued
pursuant to section four hundred thirteen of this act.
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Upon making an order for temporary child support pursuant to this
subdivision, the court shall advise the petitioner of the availability
of child support enforcement services by the support collection unit of
the local department of social services, to enforce the temporary order
and to assist in securing continued child support, and shall set the
support matter down for further proceedings in accordance with article
four of this act.
Where the court determines that the respondent has employer-provided
medical insurance, the court may further direct, as part of an order of
temporary support under this subdivision, that a medical support
execution be issued and served upon the respondent's employer as
provided for in section fifty-two hundred forty-one of the civil prac-
tice law and rules.
In any proceeding in which an order of protection or temporary order
of protection or a warrant has been issued under this section, the clerk
of the court shall issue to the petitioner and respondent and his coun-
sel and to any other person affected by the order a copy of the order of
protection or temporary order of protection and ensure that a copy of
the order of protection or temporary order of protection be transmitted
to the local correctional facility where the individual is or will be
detained, the state or local correctional facility where the individual
is or will be imprisoned, and the supervising probation department or
division of parole where the individual is under probation or parole
supervision.
Notwithstanding the foregoing provisions, an order of protection, or
temporary order of protection where applicable, may be entered against a
former spouse and persons who have a child in common, regardless of
whether such persons have been married or have lived together at any
time, or against a member of the same family or household as defined in
subdivision one of section eight hundred twelve of this article.
In addition to the foregoing provisions, the court may issue an order,
pursuant to section two hundred twenty-seven-c of the real property law,
authorizing the party for whose benefit any order of protection has been
issued to terminate a lease or rental agreement pursuant to section two
hundred twenty-seven-c of the real property law.
ANY MOTION TO VACATE OR MODIFY AN ORDER OF PROTECTION, INCLUDING A
PERMANENT ORDER OF PROTECTION, OR A TEMPORARY ORDER OF PROTECTION SHALL
BE MADE ON NOTICE TO THE NON-MOVING PARTY.
S 10. This act shall take effect immediately, provided that the amend-
ments to the opening paragraph of subdivision 5 of section 530.12 and
the opening paragraph of subdivision 4 of section 530.13 of the criminal
procedure law made by sections one and six, respectively, of this act
shall be subject to the expiration and reversion of such subdivisions
pursuant to section 74 of chapter 3 of the laws of 1995, as amended,
when upon such date the provisions of sections two and seven of this act
shall take effect.