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

                                  3185

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 23, 2009
                               ___________

Introduced by M. of A. JEFFRIES -- read once and referred to the Commit-
  tee on Codes

AN  ACT to amend the penal law, in relation to defining offenses against
  the family

  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 article 121 to
read as follows:
                               ARTICLE 121
                             FAMILY OFFENSES
SECTION 121.00 DEFINITIONS.
        121.05 DOMESTIC VIOLENCE.
        121.10 AGGRAVATED DOMESTIC VIOLENCE.
        121.15 EXTREME DOMESTIC VIOLENCE.
        121.20 DEFENSE.
S 121.00 DEFINITIONS.
  FOR THE PURPOSES OF THIS ARTICLE THE FOLLOWING TERMS  SHALL  HAVE  THE
FOLLOWING MEANINGS:
  1. "FAMILY MEMBER" MEANS ANY PERSON RELATED BY BLOOD OR MARRIAGE, AS A
SPOUSE,  OR AS AN ANCESTOR OR DESCENDANT; OR ANY PERSONS HAVING CHILDREN
IN COMMON; OR ANY PERSONS HAVING SHARED THE SAME DOMICILE FOR  A  PERIOD
OF SIX MONTHS OR MORE.
  2.  "ACT  OF  VIOLENCE" MEANS ANY ASSAULTIVE BEHAVIOR, WHETHER BY OPEN
HAND, FIST, FOOT, TEETH, OR ANY OTHER BODY PART, OR BY ANY INSTRUMENT OR
INSTRUMENTALITY, WHICH CAUSES PHYSICAL INJURY TO ANOTHER FAMILY MEMBER.
  3. "INJURY" MEANS ANY OF THE FOLLOWING: BLACK  AND  BLUE  MARKS;  WELT
MARKS;  A  BLACK  EYE;  SUBSTANTIAL SORENESS; A BITE MARK; A CONCUSSION;
SUTURES; BURNS; OR ANY OTHER MEDICALLY DISTINGUISHABLE  BRUISES,  CONTU-
SIONS,  ABRASIONS  OR LACERATIONS, OR ANY "PHYSICAL INJURY" AS THAT TERM
HAS BEEN DEFINED BY ARTICLE ONE HUNDRED TWENTY OF THIS TITLE.
S 121.05 DOMESTIC VIOLENCE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02721-01-9
              

A. 3185                             2

  A PERSON IS GUILTY OF DOMESTIC VIOLENCE WHEN  BEING  A  FAMILY  MEMBER
WITH  INTENT TO CAUSE INJURY TO ANOTHER FAMILY MEMBER, HE OR SHE COMMITS
AN ACT OF VIOLENCE AGAINST ANY FAMILY MEMBER.
  DOMESTIC VIOLENCE IS A CLASS A MISDEMEANOR.
S 121.10 AGGRAVATED DOMESTIC VIOLENCE.
  A  PERSON  IS  GUILTY  OF  AGGRAVATED DOMESTIC VIOLENCE WHEN HE OR SHE
COMMITS AN ACT OF DOMESTIC VIOLENCE AND WHEN:
  1. HE OR SHE HAS PREVIOUSLY BEEN  CONVICTED  OF  AN  ACT  OF  DOMESTIC
VIOLENCE, OR AN ATTEMPT TO COMMIT SAME; OR
  2.  HE  OR SHE HAS PREVIOUSLY BEEN CONVICTED OF ASSAULT, UNDER ARTICLE
ONE HUNDRED TWENTY OF THIS TITLE, OR AN ATTEMPT TO COMMIT SAME, AND  THE
VICTIM IN SAID PRIOR CONVICTION WAS A FAMILY MEMBER; OR
  3. HE OR SHE HAS PREVIOUSLY COMMITTED ANOTHER ACT OF DOMESTIC VIOLENCE
WITHIN  THE  PAST  SIX  MONTHS AGAINST ANY FAMILY MEMBER, AND AS TO SAID
PRIOR CONDUCT NO PROSECUTION HAS PREVIOUSLY BEEN INSTITUTED,  OR  PROSE-
CUTION  HAS  BEEN  WITHDRAWN, DISMISSED OR ADJOURNED IN CONTEMPLATION OF
DISMISSAL BEFORE AN ADJUDICATION ON THE MERITS, PROVIDING HOWEVER,  THAT
SAID  PRIOR  CONDUCT  MUST  BE  ALLEGED WITHIN THE ACCUSATORY INSTRUMENT
HEREIN WITH THE SAME SPECIFICITY AS IS REQUIRED FOR THE CONDUCT PRESENT-
LY AT ISSUE; OR
  4. HE OR SHE ACCOMPANIES SAID ACT WITH A THREAT OR THREATS TO THE LIFE
OF ANY FAMILY MEMBER; OR
  5. HE OR SHE USES OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR
  6. AT THE TIME OF SAID CONDUCT AN ORDER OF PROTECTION HAS BEEN  ISSUED
CONSTRAINING THE CONDUCT OF SAID PERSON; OR
  7.  AT  TWO  TIMES  OTHER THAN THE ACT OF DOMESTIC VIOLENCE, HE OR SHE
THREATENS THE LIFE OR SAFETY OF ANY FAMILY MEMBER OVER THE PHONE  OR  BY
ANY AGENT OR INSTRUMENTALITY.
  AGGRAVATED DOMESTIC VIOLENCE IS A CLASS E FELONY.
S 121.15 EXTREME DOMESTIC VIOLENCE.
  A PERSON IS GUILTY OF EXTREME DOMESTIC VIOLENCE WHEN:
  1.  WITH  INTENT  TO CAUSE INJURY TO ANY FAMILY MEMBER, OR IN RECKLESS
DISREGARD OF THE LIKELIHOOD OF CAUSING SUCH INJURY, HE OR SHE COMMITS AN
ACT OR ACTS WHICH RESULT IN SECOND OR THIRD DEGREE BURNS TO  ANY  FAMILY
MEMBER; OR
  2.  HE OR SHE COMMITS AN ACT OF DOMESTIC VIOLENCE, HAVING TWICE WITHIN
THE THREE YEARS IMMEDIATELY PRIOR TO SAID  ACT  BEEN  CONVICTED  OF  ANY
COMBINATION  OF  DOMESTIC VIOLENCE AND/OR ASSAULT CHARGES, OR AN ATTEMPT
TO COMMIT SAME AGAINST ANY FAMILY MEMBER OR MEMBERS; OR
  3. HE OR SHE COMMITS AN ACT OF DOMESTIC VIOLENCE  HAVING  THREE  TIMES
WITHIN  A  YEAR  IMMEDIATELY  PRIOR  TO SAID ACT COMMITTED OTHER ACTS OF
DOMESTIC VIOLENCE AGAINST ANY FAMILY MEMBER OR MEMBERS, AND AS  TO  SAID
PRIOR  CONDUCT,  NO PROSECUTION HAS PREVIOUSLY BEEN INSTITUTED OR PROSE-
CUTION HAS BEEN WITHDRAWN, DISMISSED OR ADJOURNED  IN  CONTEMPLATION  OF
DISMISSAL  BEFORE AN ADJUDICATION ON THE MERITS, PROVIDING HOWEVER, THAT
SAID PRIOR CONDUCT MUST BE  ALLEGED  WITHIN  THE  ACCUSATORY  INSTRUMENT
HEREIN WITH THE SAME SPECIFICITY AS IS REQUIRED FOR THE CONDUCT PRESENT-
LY AT ISSUE; OR
  4.  HE OR SHE RESTRAINS AS THAT TERM IS DEFINED BY ARTICLE ONE HUNDRED
THIRTY-FIVE OF THIS TITLE A FAMILY MEMBER FOR A PERIOD OF MORE THAN  TWO
HOURS, DURING THE COURSE OF WHICH HE OR SHE:
  (A) COMMITS AN ACT OF DOMESTIC VIOLENCE; OR
  (B) THREATENS THE LIFE OF ANY PERSON; OR
  (C) ENDANGERS THE LIFE OF A CHILD; OR
  (D) DISPLAYS OR THREATENS THE USE OF A DANGEROUS INSTRUMENT; OR

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  (E)  COMMITS  THE CRIME OF COERCION AS THAT TERM IS DEFINED BY ARTICLE
ONE HUNDRED THIRTY-FIVE OF THIS TITLE; OR
  5.  HE  OR  SHE COMMITS AN ACT OF AGGRAVATED DOMESTIC VIOLENCE AND THE
VICTIM IS LESS THAN TEN YEARS OLD.
  EXTREME DOMESTIC VIOLENCE IS A CLASS C FELONY.
S 121.20 DEFENSE.
  IT IS AN AFFIRMATIVE DEFENSE  UNDER  THIS  ARTICLE  THAT  ANY  CONDUCT
AGAINST  A CHILD BY AN ADULT FAMILY MEMBER WAS JUSTIFIED PURSUANT TO THE
PROVISIONS OF SUBDIVISION ONE OF SECTION 35.10 OF THIS CHAPTER.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.