S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4839

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            February 8, 2011
                               ___________

Introduced by M. of A. WRIGHT -- read once and referred to the Committee
  on Codes

AN  ACT to amend the criminal procedure law and the family court act, in
  relation to the duration of orders of protection

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The opening paragraph of subdivision 5 of section 530.12 of
the  criminal  procedure  law,  as amended by chapter 476 of the laws of
2009, 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 as defined in
subdivision one of section 530.11 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: (A) 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
(B) in the case of a conviction for a class  A  misdemeanor,  shall  not
exceed  the greater of: (i) five years from the date of such conviction,
or (ii) five years from the date of the expiration of the  maximum  term
of  a definite or intermittent term actually imposed; or (C) in the case
of a conviction for any other offense, shall not exceed the greater  of:
(i)  two  years  from the date of conviction, or (ii) two years from the
date of the expiration of the maximum term of a definite or intermittent
term actually imposed. 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shall be deemed to include a conviction that  has  been  replaced  by  a

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD05660-01-1
              

A. 4839                             2

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  AGGRAVATING  CIRCUMSTANCES
SHALL  BE  STATED UPON THE ORDER OF PROTECTION. In addition to any other
conditions, 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:

A. 4839                             3

  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.
  S  6.  The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by chapter 476 of the laws  of  2009,
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; (A) 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 (B) in the case of  a  conviction  for  a  class  A
misdemeanor,  shall  not  exceed the greater of: (i) five years from the
date of such conviction, or (ii) five years from the date of the expira-
tion of the maximum term of a definite  or  intermittent  term  actually
imposed; or (C) in the case of a conviction for any other offense, shall
not exceed the greater of: (i) two years from the date of conviction, or
(ii)  two years from the date of the expiration of the maximum term of a
definite or intermittent term actually imposed. 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 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 AGGRA-
VATING  CIRCUMSTANCES  SHALL  BE STATED UPON THE ORDER OF PROTECTION. In
addition to any other conditions such an  order  may  require  that  the
defendant:
  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-

A. 4839                             4

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:
  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 separately amended  by  chap-
ters  325  and  341 of the laws of 2010, 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 second undesignated paragraph as  amended  by  chapter
325  of the laws of 2010, 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 condi-
tions 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
aggravating 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. The court may also, upon motion, extend the order
of protection for a reasonable period of time upon  a  showing  of  good
cause  or  consent  of the parties. The fact that abuse has not occurred
during the pendency of an order shall not, in itself, constitute  suffi-
cient  ground for denying or failing to extend the order. The court must
articulate a basis for its decision on the record. The duration  of  any
temporary  order  shall  not  by  itself  be a factor in determining the
length or issuance of any final order.  Any order of  protection  issued
pursuant  to  this  section shall specify if an order of probation is in

A. 4839                             5

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;
  (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.

A. 4839                             6

  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.
  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

A. 4839                             7

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.