BILL NUMBER:S6674

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.