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

                                  6439

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                             March 27, 2013
                               ___________

Introduced  by  M.  of  A. McKEVITT, SKOUFIS, WALTER, MONTESANO, GIGLIO,
  DUPREY -- Multi-Sponsored by -- M.  of  A.  ARROYO,  BARCLAY,  CORWIN,
  CROUCH,  JOHNS,  KEARNS,  McLAUGHLIN, OAKS, RA, TENNEY, THIELE -- read
  once and referred to the Committee on Judiciary

AN ACT to amend the domestic relations law, the family court act and the
  criminal procedure law, in  relation  to  requiring  mandatory  prison
  sentences for repeat violators of orders of protection

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

  Section 1. Paragraph h of subdivision 3 of section 240 of the domestic
relations law, as amended by chapter 1 of the laws of 2013,  is  amended
to read as follows:
  h.  Upon  issuance  of  an  order  of protection or temporary order of
protection or upon a violation of such order, the  court  shall  make  a
determination  regarding  the  suspension and revocation of a license to
carry, possess, repair or dispose of a firearm or firearms,  ineligibil-
ity  for such a license and the surrender of firearms in accordance with
sections eight hundred forty-two-a and eight hundred forty-six-a of  the
family court act, as applicable. Upon issuance of an order of protection
pursuant  to  this section or upon a finding of a violation thereof, the
court also may direct payment of restitution in an amount not to  exceed
ten thousand dollars in accordance with subdivision (e) of section eight
hundred  forty-one of such act; provided, however, that in no case shall
an order of restitution be issued where the court  determines  that  the
party against whom the order would be issued has already compensated the
injured  party  or  where  such  compensation is incorporated in a final
judgment or settlement of the action.  IF THE PERSON  SO  VIOLATING  THE
ORDER  HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER ON MORE THAN ONE OCCA-
SION, AND THIS VIOLATION CONSISTED OF COMMITTING  A  FAMILY  OFFENSE  AS
DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09820-02-3
              

A. 6439                             2

LAW,  THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF NO
LESS THAN THIRTY DAYS, WHICH MAY BE SERVED UPON CERTAIN  SPECIFIED  DAYS
OR PARTS OF DAYS AS THE COURT MAY DIRECT.
  S  2.  Subdivision  9 of section 252 of the domestic relations law, as
amended by chapter 1 of the laws of 2013, is amended to read as follows:
  9. Upon issuance of an order  of  protection  or  temporary  order  of
protection  or  upon  a  violation of such order, the court shall make a
determination regarding the suspension and revocation of  a  license  to
carry,  possess, repair or dispose of a firearm or firearms, ineligibil-
ity for such a license and the surrender of firearms in accordance  with
sections  eight hundred forty-two-a and eight hundred forty-six-a of the
family court act, as applicable. Upon issuance of an order of protection
pursuant to this section or upon a finding of a violation  thereof,  the
court  also may direct payment of restitution in an amount not to exceed
ten thousand dollars in accordance with subdivision (e) of section eight
hundred forty-one of such act; provided, however, that in no case  shall
an  order  of  restitution be issued where the court determines that the
party against whom the order would be issued has already compensated the
injured party or where such compensation  is  incorporated  in  a  final
judgment  or  settlement  of the action.  IF THE PERSON SO VIOLATING THE
ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER ON MORE THAN ONE  OCCA-
SION,  AND  THIS  VIOLATION  CONSISTED OF COMMITTING A FAMILY OFFENSE AS
DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF  NO
LESS  THAN  THIRTY DAYS, WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS
OR PARTS OF DAYS AS THE COURT MAY DIRECT.
  S 3. Section 846-a of the family court act, as amended by chapter 1 of
the laws of 2013, is amended to read as follows:
  S 846-a. Powers on failure to obey order. If a respondent  is  brought
before  the court for failure to obey any lawful order issued under this
article or an order of  protection  or  temporary  order  of  protection
issued  pursuant to this act or issued by a court of competent jurisdic-
tion of another state, territorial or tribal jurisdiction and if,  after
hearing,  the  court is satisfied by competent proof that the respondent
has willfully failed to obey any such order, the  court  may  modify  an
existing order or temporary order of protection to add reasonable condi-
tions  of behavior to the existing order, make a new order of protection
in accordance with section eight hundred forty-two  of  this  part,  may
order  the  forfeiture  of bail in a manner consistent with article five
hundred forty of the criminal procedure law if  bail  has  been  ordered
pursuant  to  this act, may order the respondent to pay the petitioner's
reasonable and necessary counsel fees in connection with  the  violation
petition where the court finds that the violation of its order was will-
ful,  and may commit the respondent to jail for a term not to exceed six
months.  IF THE RESPONDENT HAS BEEN FOUND BY  COMPETENT  PROOF  TO  HAVE
WILLFULLY FAILED TO OBEY SUCH ORDER OF PROTECTION ON MORE THAN ONE OCCA-
SION,  AND THIS WILLFUL FAILURE CONSISTED OF COMMITTING A FAMILY OFFENSE
AS DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED  TWELVE  OF  THIS
ARTICLE  OR  SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF NOT
LESS THAN THIRTY DAYS. Such commitment may be served upon certain speci-
fied days or parts of days as the court may direct, and the  court  may,
at any time within the term of such sentence, revoke such suspension and
commit  the  respondent  for  the remainder of the original sentence, or
suspend the remainder of such sentence. If the court determines that the

A. 6439                             3

willful failure to obey such order involves violent behavior  constitut-
ing  the crimes of menacing, reckless endangerment, assault or attempted
assault and if such a respondent is licensed to carry,  possess,  repair
and dispose of firearms pursuant to section 400.00 of the penal law, the
court  may  also immediately revoke such license and may arrange for the
immediate surrender pursuant to subparagraph (f)  of  paragraph  one  of
subdivision a of section 265.20 and subdivision six of section 400.05 of
the  penal  law,  and  disposal  of  any firearm such respondent owns or
possesses. If the willful  failure  to  obey  such  order  involves  the
infliction  of physical injury as defined in subdivision nine of section
10.00 of the penal law or the use or threatened use of a  deadly  weapon
or  dangerous  instrument,  as  those  terms are defined in subdivisions
twelve and thirteen of section 10.00 of the penal law,  such  revocation
and immediate surrender pursuant to subparagraph (f) of paragraph one of
subdivision a of section 265.20 and subdivision six of section 400.05 of
the  penal  law  [six] and disposal of any firearm owned or possessed by
respondent shall be mandatory, pursuant to subdivision eleven of section
400.00 of the penal law.
  S 4. The closing paragraph of subdivision 3  of  section  240  of  the
domestic  relations law, as added by chapter 606 of the laws of 1999, is
amended to read as follows:
  Upon issuance  of  an  order  of  protection  or  temporary  order  of
protection  or  upon  a  violation  of such order, the court may make an
order in accordance with section eight hundred forty-two-a of the family
court act directing the surrender of firearms, revoking or suspending  a
party's firearms license, and/or directing that such party be ineligible
to  receive  a firearms license. Upon issuance of an order of protection
pursuant to this section or upon a finding of a violation  thereof,  the
court  also may direct payment of restitution in an amount not to exceed
ten thousand dollars in accordance with subdivision (e) of section eight
hundred forty-one of such act; provided, however, that in no case  shall
an  order  of  restitution be issued where the court determines that the
party against whom the order would be issued has already compensated the
injured party or where such compensation  is  incorporated  in  a  final
judgment  or  settlement  of the action.  IF THE PERSON SO VIOLATING THE
ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER ON MORE THAN ONE  OCCA-
SION,  AND  THIS  VIOLATION  CONSISTED OF COMMITTING A FAMILY OFFENSE AS
DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF  NO
LESS  THAN  THIRTY DAYS, WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS
OR PARTS OF DAYS AS THE COURT MAY DIRECT.
  S 5. Subdivision 9 of section 252 of the domestic  relations  law,  as
added by chapter 606 of the laws of 1999, is amended to read as follows:
  9.  Upon  issuance  of  an  order  of protection or temporary order of
protection or upon a violation of such order, the court may [take]  MAKE
an  order  in  accordance  with section eight hundred forty-two-a of the
family court act  directing  the  surrender  of  firearms,  revoking  or
suspending  a party's firearms license, and/or directing that such party
be ineligible to receive a firearms license. Upon issuance of  an  order
of  protection pursuant to this section or upon a finding of a violation
thereof, the court also may direct payment of restitution in  an  amount
not to exceed ten thousand dollars in accordance with subdivision (e) of
section  eight hundred forty-one of such act; provided, however, that in
no case shall an order of restitution be issued where the  court  deter-
mines  that the party against whom the order would be issued has already

A. 6439                             4

compensated the injured party or where such compensation is incorporated
in a final [judgement] JUDGMENT or settlement of the  action.    IF  THE
PERSON SO VIOLATING THE ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER
ON  MORE THAN ONE OCCASION, AND THIS VIOLATION CONSISTED OF COMMITTING A
FAMILY OFFENSE AS DEFINED IN SUBDIVISION ONE OF  SECTION  EIGHT  HUNDRED
TWELVE  OF  THE FAMILY COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF
THE CRIMINAL PROCEDURE LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM
OF IMPRISONMENT OF NO LESS THAN THIRTY DAYS, WHICH MAY  BE  SERVED  UPON
CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE COURT MAY DIRECT.
  S  6. Section 846-a of the family court act, as amended by chapter 597
of the laws of 1998, is amended to read as follows:
  S 846-a. Powers on failure to obey order. If a respondent  is  brought
before  the court for failure to obey any lawful order issued under this
article or an order of protection issued by a court of competent  juris-
diction  of  another  state,  territorial  or  tribal  jurisdiction in a
proceeding and if, after hearing, the court is  satisfied  by  competent
proof  that  the respondent has willfully failed to obey any such order,
the court may modify an existing order to add reasonable  conditions  of
behavior  to  the  existing  order  of  protection,  make a new order of
protection in accordance with section eight hundred  forty-two  OF  THIS
PART, may order the forfeiture of bail in a manner consistent with arti-
cle  five  hundred  forty of the criminal procedure law if bail has been
ordered pursuant to this act,  may  order  the  respondent  to  pay  the
petitioner's  reasonable  and  necessary counsel fees in connection with
the violation petition where the court finds that the violation  of  its
order  was willful, and may commit the respondent to jail for a term not
to exceed six months.  IF THE RESPONDENT HAS  BEEN  FOUND  BY  COMPETENT
PROOF  TO HAVE WILLFULLY FAILED TO OBEY SUCH ORDER OF PROTECTION ON MORE
THAN ONE OCCASION, AND THIS WILLFUL FAILURE CONSISTED  OF  COMMITTING  A
FAMILY  OFFENSE  AS  DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED
TWELVE OF THIS ARTICLE OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIM-
INAL PROCEDURE LAW, THE COURT SHALL COMMIT SUCH  PERSON  TO  A  TERM  OF
IMPRISONMENT OF NOT LESS THAN THIRTY DAYS. Such commitment may be served
upon  certain  specified  days or parts of days as the court may direct,
and the court may, at any time within the term of such sentence,  revoke
such  suspension  and  commit  the  respondent  for the remainder of the
original sentence, or suspend the remainder of  such  sentence.  If  the
court  determines  that  the willful failure to obey such order involves
violent behavior constituting the crimes of menacing, reckless endanger-
ment, assault or attempted assault and if such a respondent is  licensed
to  carry,  possess,  repair and dispose of firearms pursuant to section
400.00 of the penal law, the court  may  also  immediately  revoke  such
license  and may arrange for the immediate surrender and disposal of any
firearm such respondent owns or possesses.   If the willful  failure  to
obey  such  order  involves the infliction of serious physical injury as
defined in subdivision [ten] NINE of section 10.00 of the penal  law  or
the use or threatened use of a deadly weapon or dangerous instrument, as
those  terms  are defined in subdivisions twelve and thirteen of section
10.00 of the penal law, such  revocation  and  immediate  surrender  and
disposal of any firearm owned or possessed by respondent shall be manda-
tory, pursuant to subdivision eleven of section 400.00 of the penal law.
  S  7.  Subdivision 11 of section 530.12 of the criminal procedure law,
as amended by chapter 498 of the laws of 1993, the opening paragraph  as
amended  by chapter 597 of the laws of 1998, paragraph (a) as amended by
chapter 222 of the laws of 1994 and paragraph (d) as amended by  chapter
644 of the laws of 1996, is amended to read as follows:

A. 6439                             5

  11.    If  a defendant is brought before the court for failure to obey
any lawful order issued under this section, or an  order  of  protection
issued  by  a court of competent jurisdiction in another state, territo-
rial or tribal jurisdiction, and if, after hearing, the court is  satis-
fied  by competent proof that the defendant has willfully failed to obey
any such order, (A) the court may:
  [(a)] (I) revoke an order of recognizance or revoke an order  of  bail
or order forfeiture of such bail and commit the defendant to custody; or
  [(b)]  (II)  restore  the  case to the calendar when there has been an
adjournment in contemplation of dismissal and commit  the  defendant  to
custody; or
  [(c)]  (III) revoke a conditional discharge in accordance with section
410.70 of this chapter and impose  probation  supervision  or  impose  a
sentence  of  imprisonment in accordance with the penal law based on the
original conviction; or
  [(d)] (IV) revoke probation in accordance with section 410.70 of  this
chapter  and  impose  a  sentence of imprisonment in accordance with the
penal law based on the original conviction.  In  addition,  if  the  act
which  constitutes the violation of the order of protection or temporary
order of protection is a crime or  a  violation  the  defendant  may  be
charged with and tried for that crime or violation; AND
  (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
SUCH  ORDER  OF  PROTECTION  ON  MORE THAN ONE OCCASION AND THIS WILLFUL
FAILURE CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN  SUBDIVI-
SION  ONE  OF  THIS  SECTION OR SUBDIVISION ONE OF SECTION EIGHT HUNDRED
TWELVE OF THE FAMILY COURT ACT, THE COURT SHALL COMMIT SUCH PERSON TO  A
TERM  OF  IMPRISONMENT OF NOT LESS THAN THIRTY DAYS, WHICH MAY BE SERVED
UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE COURT MAY DIRECT.
  S 8. Subdivision 8 of section 530.13 of the criminal procedure law, as
added by chapter 388 of the laws of 1984, is amended to read as follows:
  8. If a defendant is brought before the court for failure to obey  any
lawful  order issued under this section and if, after hearing, the court
is satisfied by competent proof that the defendant has willfully  failed
to obey any such order, (A) the court may:
  [(a)]  (I)  revoke  an  order  of  recognizance or bail and commit the
defendant to custody; or
  [(b)] (II) restore the case to the calendar when  there  has  been  an
adjournment  in  contemplation  of dismissal and commit the defendant to
custody or impose or increase bail pending a trial of the original crime
or violation; or
  [(c)] (III) revoke a conditional discharge in accordance with  section
410.70  of  this  chapter  and  impose probation supervision or impose a
sentence of imprisonment in accordance with the penal law based  on  the
original conviction; or
  [(d)]  (IV) revoke probation in accordance with section 410.70 of this
chapter and impose a sentence of imprisonment  in  accordance  with  the
penal  law  based  on  the  original conviction. In addition, if the act
which constitutes the violation of the order of protection or  temporary
order  of  protection  is  a  crime  or a violation the defendant may be
charged with and tried for that crime or violation; AND
  (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
SUCH ORDER OF PROTECTION ON MORE THAN  ONE  OCCASION  AND  THIS  WILLFUL
FAILURE  CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN SUBDIVI-
SION ONE OF SECTION 530.12 OF THIS ARTICLE OR SUBDIVISION ONE OF SECTION
EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT,  THE  COURT  SHALL  COMMIT
SUCH  PERSON  TO  A  TERM  OF IMPRISONMENT OF NOT LESS THAN THIRTY DAYS,

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WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS  THE
COURT MAY DIRECT.
  S 9. This act shall take effect on the first of November next succeed-
ing  the  date  on  which it shall have become a law; provided, however,
that if section 11 of chapter 1 of the laws of 2013 is not in effect  on
such  date then section four of this act is in effect only until section
11 of chapter 1 of the laws of 2013 takes effect  when  upon  such  date
section  one  of  this act shall take effect; provided, however, that if
section 12 of chapter 1 of the laws of 2013 is not  in  effect  on  such
date then section five of this act is in effect only until section 12 of
chapter  1  of the laws of 2013 takes effect when upon such date section
two of this act shall take effect; provided, however, that if section  5
of  chapter  1  of  the  laws of 2013 is not in effect on such date then
section six of this act is in effect only until section 5 of  chapter  1
of  the  laws  of 2013 takes effect when upon such date section three of
this act shall take effect.