S T A T E O F N E W Y O R K
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11365
I N A S S E M B L Y
June 4, 2010
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Introduced by COMMITTEE ON RULES -- (at request of M. of A. Rosenthal)
-- read once and referred to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to the creation of the crime of aggravated domestic violence
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new section 240.75 to
read as follows:
S 240.75 AGGRAVATED DOMESTIC VIOLENCE.
1. A PERSON IS GUILTY OF AGGRAVATED DOMESTIC VIOLENCE WHEN HE OR SHE
COMMITS A SPECIFIED DOMESTIC VIOLENCE OFFENSE AND HE OR SHE HAS BEEN
CONVICTED OF ONE OR MORE SPECIFIED DOMESTIC VIOLENCE OFFENSES WITHIN THE
IMMEDIATELY PRECEDING FIVE YEARS. FOR THE PURPOSES OF THIS SECTION, IN
CALCULATING THE FIVE YEAR PERIOD, ANY PERIOD OF TIME DURING WHICH THE
DEFENDANT WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF THE
COMMISSION OF ANY OF THE PREVIOUS CONVICTIONS AND THE TIME OF COMMISSION
OF THE PRESENT CRIME SHALL BE EXCLUDED AND SUCH FIVE YEAR PERIOD SHALL
BE EXTENDED BY A PERIOD OR PERIODS EQUAL TO THE TIME SERVED UNDER SUCH
INCARCERATION.
2. A "SPECIFIED DOMESTIC VIOLENCE OFFENSE" IS AN OFFENSE WHERE THE
DEFENDANT AND THE PERSON AGAINST WHOM THE OFFENSE IS COMMITTED ARE
MEMBERS OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF
SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW AND WHERE THAT OFFENSE
INCLUDES ANY OF THE FOLLOWING PROVISIONS OF THE PENAL LAW: SECTION
120.00 (ASSAULT IN THE THIRD DEGREE); SECTION 120.05 (ASSAULT IN THE
SECOND DEGREE); SECTION 120.10 (ASSAULT IN THE FIRST DEGREE); SECTION
120.13 (MENACING IN THE FIRST DEGREE); SECTION 120.14 (MENACING IN THE
SECOND DEGREE); SECTION 120.15 (MENACING IN THE THIRD DEGREE); SECTION
120.20 (RECKLESS ENDANGERMENT IN THE SECOND DEGREE); SECTION 120.25
(RECKLESS ENDANGERMENT IN THE FIRST DEGREE); SECTION 120.45 (STALKING IN
THE FOURTH DEGREE); SECTION 120.50 (STALKING IN THE THIRD DEGREE);
SECTION 120.55 (STALKING IN THE SECOND DEGREE); SECTION 120.60 (STALKING
IN THE FIRST DEGREE); SUBDIVISION ONE OF SECTION 125.15 (MANSLAUGHTER IN
THE SECOND DEGREE); SUBDIVISION ONE, TWO OR FOUR OF SECTION 125.20
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17548-01-0
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(MANSLAUGHTER IN THE FIRST DEGREE); SECTION 125.25 (MURDER IN THE SECOND
DEGREE); SECTION 130.20 (SEXUAL MISCONDUCT); SECTION 130.30 (RAPE IN THE
SECOND DEGREE); SECTION 130.35 (RAPE IN THE FIRST DEGREE); SECTION
130.40 (CRIMINAL SEXUAL ACT IN THE THIRD DEGREE); SECTION 130.45 (CRIMI-
NAL SEXUAL ACT IN THE SECOND DEGREE); SECTION 130.50 (CRIMINAL SEXUAL
ACT IN THE FIRST DEGREE); SECTION 130.52 (FORCIBLE TOUCHING); SECTION
130.53 (PERSISTENT SEXUAL ABUSE); SECTION 130.55 (SEXUAL ABUSE IN THE
THIRD DEGREE); SECTION 130.60 (SEXUAL ABUSE IN THE SECOND DEGREE);
SECTION 130.65 (SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 130.66
(AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE); SECTION 130.67 (AGGRA-
VATED SEXUAL ABUSE IN THE SECOND DEGREE); SECTION 130.70 (AGGRAVATED
SEXUAL ABUSE IN THE FIRST DEGREE); SECTION 130.91 (SEXUALLY MOTIVATED
FELONY); SECTION 130.95 (PREDATORY SEXUAL ASSAULT); SECTION 130.96
(PREDATORY SEXUAL ASSAULT AGAINST A CHILD); SECTION 135.05 (UNLAWFUL
IMPRISONMENT IN THE SECOND DEGREE); SECTION 135.10 (UNLAWFUL IMPRISON-
MENT IN THE FIRST DEGREE); SECTION 135.20 (KIDNAPPING IN THE SECOND
DEGREE); SECTION 135.25 (KIDNAPPING IN THE FIRST DEGREE); SECTION 135.60
(COERCION IN THE SECOND DEGREE); SECTION 135.65 (COERCION IN THE FIRST
DEGREE); SECTION 140.10 (CRIMINAL TRESPASS IN THE THIRD DEGREE); SECTION
140.15 (CRIMINAL TRESPASS IN THE SECOND DEGREE); SECTION 140.17 (CRIMI-
NAL TRESPASS IN THE FIRST DEGREE); SECTION 140.20 (BURGLARY IN THE THIRD
DEGREE); SECTION 140.25 (BURGLARY IN THE SECOND DEGREE); SECTION 140.30
(BURGLARY IN THE FIRST DEGREE); SECTION 145.00 (CRIMINAL MISCHIEF IN THE
FOURTH DEGREE); SECTION 145.05 (CRIMINAL MISCHIEF IN THE THIRD DEGREE);
SECTION 145.10 (CRIMINAL MISCHIEF IN THE SECOND DEGREE); SECTION 145.12
(CRIMINAL MISCHIEF IN THE FIRST DEGREE); SECTION 145.14 (CRIMINAL
TAMPERING IN THE THIRD DEGREE); SECTION 145.25 (RECKLESS ENDANGERMENT OF
PROPERTY); SECTION 145.60 (MAKING GRAFFITI); SECTION 150.01 (ARSON IN
THE FIFTH DEGREE); SECTION 150.05 (ARSON IN THE FOURTH DEGREE); SECTION
150.10 (ARSON IN THE THIRD DEGREE); SECTION 150.15 (ARSON IN THE SECOND
DEGREE); SECTION 150.20 (ARSON IN THE FIRST DEGREE); SECTION 215.50
(CRIMINAL CONTEMPT IN THE SECOND DEGREE); SECTION 215.51 (CRIMINAL
CONTEMPT IN THE FIRST DEGREE); SECTION 215.52 (AGGRAVATED CRIMINAL
CONTEMPT); SECTION 240.25 (HARASSMENT IN THE FIRST DEGREE); SUBDIVISION
ONE, TWO OR FOUR OF SECTION 240.30 (AGGRAVATED HARASSMENT IN THE SECOND
DEGREE); SECTION 240.48 (DISSEMINATING A FALSE REGISTERED SEX OFFENDER
NOTICE); SECTION 240.50 (FALSELY REPORTING AN INCIDENT IN THE THIRD
DEGREE); SECTION 240.55 (FALSELY REPORTING AN INCIDENT IN THE SECOND
DEGREE); SECTION 240.60 (FALSELY REPORTING AN INCIDENT IN THE FIRST
DEGREE); OR ANY ATTEMPT OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
OFFENSES.
AGGRAVATED DOMESTIC VIOLENCE IS A CLASS E FELONY.
S 2. The criminal procedure law is amended by adding a new section
200.63 to read as follows:
S 200.63 INDICTMENT; SPECIAL INFORMATION FOR AGGRAVATED DOMESTIC
VIOLENCE OFFENDER.
1. WHENEVER A PERSON IS CHARGED WITH THE COMMISSION OR ATTEMPTED
COMMISSION OF AN AGGRAVATED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN
SECTION 240.75 OF THE PENAL LAW WHICH CONSTITUTES A FELONY AND IT
APPEARS THAT THE VICTIM OF SUCH OFFENSE WAS A MEMBER OF THE SAME FAMILY
OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS
CHAPTER, AN INDICTMENT FOR SUCH OFFENSE MAY BE ACCOMPANIED BY A SPECIAL
INFORMATION, FILED BY THE DISTRICT ATTORNEY WITH THE COURT, ALLEGING
THAT THE VICTIM WAS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED
IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER AND WAS PREVIOUSLY
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CONVICTED OF A SPECIFIED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN SECTION
240.75 OF THE PENAL LAW.
2. PRIOR TO TRIAL, OR AFTER THE COMMENCEMENT OF THE TRIAL BUT BEFORE
THE CLOSE OF THE PEOPLE'S CASE, THE COURT, IN THE ABSENCE OF THE JURY,
MUST ARRAIGN THE DEFENDANT UPON SUCH INFORMATION AND ADVISE HIM OR HER
THAT HE OR SHE MAY ADMIT SUCH ALLEGATION, DENY IT OR REMAIN MUTE. PEND-
ING THE DEFENDANT'S RESPONSE, THE TRIAL OF THE INDICTMENT MUST PROCEED
AS FOLLOWS:
(A) IF THE DEFENDANT ADMITS THAT THE ALLEGED VICTIM WAS A MEMBER OF
THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION
530.11 OF THIS CHAPTER, AT THE TIME OF THE COMMISSION OR ATTEMPTED
COMMISSION OF THE OFFENSE, THAT ALLEGATION SHALL BE DEEMED ESTABLISHED
FOR ALL SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION
70.00 OF THE PENAL LAW;
(B) IF THE DEFENDANT ADMITS THAT HE OR SHE WAS CONVICTED OF A SPECI-
FIED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN SECTION 240.75 OF THE PENAL
LAW, THAT ALLEGATION SHALL BE DEEMED ESTABLISHED FOR ALL SUBSEQUENT
PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION 70.00 OF THE PENAL
LAW;
(C) IF THE DEFENDANT DENIES EITHER ALLEGATION OR REMAINS MUTE, THE
PEOPLE MAY, BY PROOF BEYOND A REASONABLE DOUBT, PROVE BEFORE THE JURY
OR, WHERE THE DEFENDANT HAS WAIVED A JURY TRIAL, THE COURT, THAT THE
ALLEGED VICTIM WAS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED
IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER AT THE TIME OF THE
COMMISSION OR ATTEMPTED COMMISSION OF THE OFFENSE.
3. AFTER COMMENCEMENT OF THE TRIAL AND BEFORE THE CLOSE OF THE
PEOPLE'S CASE, THE COURT, IN THE ABSENCE OF THE JURY, SHALL ARRAIGN THE
DEFENDANT UPON SUCH SPECIAL INFORMATION, AND SHALL ADVISE HIM OR HER
THAT HE OR SHE MAY ADMIT THE PREVIOUS CONVICTION ALLEGED, DENY IT OR
REMAIN MUTE. DEPENDING UPON THE DEFENDANT'S RESPONSE, THE TRIAL OF THE
INDICTMENT SHALL THEN PROCEED AS FOLLOWS:
(A) IF THE DEFENDANT ADMITS THE PREVIOUS CONVICTION, THAT ELEMENT OF
THE OFFENSE CHARGED IN THE INDICTMENT IS DEEMED ESTABLISHED, NO EVIDENCE
IN SUPPORT THEREOF MAY BE ADDUCED BY THE PEOPLE, AND THE COURT MUST
SUBMIT THE CASE TO THE JURY WITHOUT REFERENCE THERETO AND AS IF THE FACT
OF SUCH PREVIOUS CONVICTION WERE NOT AN ELEMENT OF THE OFFENSE. THE
COURT SHALL NOT SUBMIT TO THE JURY ANY LESSER INCLUDED OFFENSE WHICH IS
DISTINGUISHED FROM THE OFFENSE CHARGED SOLELY BY THE FACT THAT A PREVI-
OUS CONVICTION IS NOT AN ELEMENT THEREOF.
(B) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE,
THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE CHARGED BEFORE THE JURY
AS A PART OF THEIR CASE. IN ANY PROSECUTION UNDER SUBPARAGRAPH (IX) OF
PARAGRAPH (A) OF SUBDIVISION ONE OF SECTION 125.27 OF THE PENAL LAW, IF
THE DEFENDANT DENIES THE PREVIOUS MURDER CONVICTION OR REMAINS MUTE, THE
PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE ONLY AFTER THE JURY HAS
FIRST FOUND THE DEFENDANT GUILTY OF INTENTIONALLY CAUSING THE DEATH OF A
PERSON AS CHARGED IN THE INDICTMENT, IN WHICH CASE THE COURT SHALL THEN
PERMIT THE PEOPLE AND THE DEFENDANT TO OFFER EVIDENCE AND ARGUMENT
CONSISTENT WITH THE RELEVANT PROVISIONS OF SECTION 260.30 OF THIS CHAP-
TER WITH RESPECT TO THE PREVIOUS MURDER CONVICTION.
4. WHERE A JURY MAKES THE DETERMINATION OF WHETHER THE ALLEGED VICTIM
OF THE OFFENSE WAS A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED
IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, SUCH JURY SHALL
CONSIDER AND RENDER ITS VERDICT ON SUCH ISSUE ONLY AFTER RENDERING ITS
VERDICT WITH REGARD TO THE OFFENSE.
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5. A DETERMINATION PURSUANT TO THIS SECTION THAT THE VICTIM WAS A
MEMBER OF THE SAME FAMILY OR HOUSEHOLD, AS DEFINED IN SUBDIVISION ONE OF
SECTION 530.11 OF THIS CHAPTER, AT THE TIME OF THE COMMISSION OF THE
OFFENSE SHALL BE BINDING IN ANY FUTURE PROCEEDING IN WHICH THE ISSUE MAY
ARISE UNLESS THE UNDERLYING CONVICTION OR DETERMINATION IS VACATED OR
REVERSED.
S 3. This act shall take effect on the one hundred eightieth day after
it shall have become a law.