Assembly Bill A10683

                                BILL NUMBER:A10683

TITLE  OF BILL:   An act to amend the penal law, in relation to criminal
contempt in the first degree

Purpose of the bill:

This bill would enhance the protection of domestic violence victims  and
their  children  by  amending  criminal  contempt in the first degree to
address repeated violations of orders of protection.

Summary of Provisions:

Section 1 of the bill would amend Penal Law § 215.51(c) to provide  that
a  second  violation of an order of protection within five years consti-
tutes the felony offense of criminal contempt in the first  degree  when
the  conduct violates the provision requiring an individual to stay away
from the home, business, school or place of employment  of  the  victim.
The proposal also deletes the language "as described herein."

Section 2 of the bill would set an effective date of 90 days.

Existing law:

Any intentional violation of an order of protection constitutes at least
the  misdemeanor  of  criminal contempt in the second degree under Penal
              

Law § 215.50. Such violations are elevated to  the  felony  of  criminal
contempt  in  the  first  degree  under  Penal  Law § 215.51(c) when the
violations are of the "stay away from the person" provision of orders 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 for conduct other than failing  to  stay  away
from  the  victim, i.e., staying away from the home, business, school or
place of employment of the victim. In these cases, the second  violation
of  the  other  stay  away  portions of an order of protection remains a
misdemeanor.

Legislative history:

This bill was introduced  in  2008  (A.10492/  S.7411)  and  passed  the
Senate, but was held in the Assembly Codes Committee.

Statement in support:

Domestic  violence  typically  consists  of a pattern of behavior, often
escalating in severity. Repeated violations of orders of protection must
be taken seriously, as they indicate that the defendant's conduct  could
escalate into more violent activities, and because they demonstrate that
the abuser does not feel restrained by an order of the court.

However,  the  Penal  Law imposes heightened sanctions for violations of
orders of protection only when they are violations  of  the  "stay  away
from  the  person" provision. As a result, no heightened sanction can be
applied even when an individual repeatedly violates other provisions  of
an order of protection.

In  People  v.  Dewall,  15 A.D.3d 498 (2d Dept. 2005), appeal denied, 5
N.Y.3d 787 (2005), the defendant waited outside of the  victim's  apart-
ment in violation of an order of protection. The defendant was convicted
after  a jury trial of criminal contempt in the first degree. The Second
Department overturned the conviction stating that the  "stay  away  from
the  person"  provision  was not violated since the victim was not phys-
ically home when the defendant was stalking her.  What is  most  notable
about  this  case  is  that  the  defendant  was previously convicted of
violating orders of protection against the same victim. Adding the "stay
away from the home, school, business  or  place  of  employment  of  the
person" language to the felony provision would address this loophole and
properly sanction individuals who repeatedly flout orders of protection.

Under  criminal  contempt in the first degree (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  violation  of  the "stay away from the person"
provision. Removing the "described herein" language would enable  prose-
cutors  to  use  convictions  for  violations  of any provision of prior
orders of protection under criminal contempt in the second degree.

Budget implications:

None

Effective date:

This bill would be effective 90 days after it becomes a law.