Assembly Bill A5105

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

                                  5105

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 10, 2009
                               ___________

Introduced  by M. of A. BRODSKY, HOYT, CHRISTENSEN -- Multi-Sponsored by
  -- M. of A. GALEF, JOHN -- read once and referred to the Committee  on
  Judiciary

AN  ACT to amend the criminal procedure law and the family court act, in
  relation to imposing a mandatory surcharge upon  issuance  of  certain
  orders  of protection; and to amend the state finance law, in relation
  to creating the domestic violence legal services account as depository
  for such surcharges

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

  Section  1. Section 530.12 of the criminal procedure law is amended by
adding a new subdivision 6-b to read as follows:
  6-B. WHENEVER A COURT MAKES AN ORDER OF PROTECTION PURSUANT TO  SUBDI-
VISION  FIVE  OF  THIS  SECTION,  THERE  SHALL  BE LEVIED UPON THE PARTY
AGAINST WHOM THE ORDER HAS BEEN ISSUED  A  MANDATORY  SURCHARGE  IN  THE
AMOUNT OF TWENTY-FIVE DOLLARS. SUCH MANDATORY SURCHARGE SHALL BE PAID TO
THE CLERK OF THE COURT WHICH ISSUED SUCH ORDER OF PROTECTION. WITHIN THE
FIRST  TEN  DAYS  OF  THE  MONTH  FOLLOWING  COLLECTION OF THE MANDATORY
SURCHARGES, THE COLLECTING COURT SHALL DETERMINE THE AMOUNT OF MANDATORY
SURCHARGES COLLECTED, AND IT SHALL PAY SUCH MONEY  TO  THE  STATE  COMP-
TROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE STATE TREASURY TO THE CRED-
IT  OF  THE  DOMESTIC  VIOLENCE  LEGAL  SERVICES  ACCOUNT ESTABLISHED BY
SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S 2. Section 530.13 of the criminal procedure law is amended by adding
a new subdivision 5-a to read as follows:
  5-A. WHENEVER A COURT MAKES AN ORDER OF PROTECTION PURSUANT TO  SUBDI-
VISION  FOUR  OF  THIS  SECTION,  THERE  SHALL  BE LEVIED UPON THE PARTY
AGAINST WHOM THE ORDER HAS BEEN ISSUED  A  MANDATORY  SURCHARGE  IN  THE
AMOUNT OF TWENTY-FIVE DOLLARS. SUCH MANDATORY SURCHARGE SHALL BE PAID TO
THE CLERK OF THE COURT WHICH ISSUED SUCH ORDER OF PROTECTION. WITHIN THE
FIRST  TEN  DAYS  OF  THE  MONTH  FOLLOWING  COLLECTION OF THE MANDATORY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08225-01-9
              

A. 5105                             2

SURCHARGES, THE COLLECTING COURT SHALL DETERMINE THE AMOUNT OF MANDATORY
SURCHARGES COLLECTED, AND IT SHALL PAY SUCH MONEY  TO  THE  STATE  COMP-
TROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE STATE TREASURY TO THE CRED-
IT  OF  THE  DOMESTIC  VIOLENCE  LEGAL  SERVICES  ACCOUNT ESTABLISHED BY
SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S 3. Subdivision 1 of section 420.35 of the criminal procedure law, as
amended by section 7 of part F of chapter 62 of the  laws  of  2003,  is
amended to read as follows:
  1.  The  provisions  of  section  420.10 of this article governing the
collection of fines and the provisions of section 420.40 of this article
governing deferral of mandatory surcharges,  sex  offender  registration
fees,  DNA  databank  fees  and  financial  hardship  hearings  and  the
provisions of section 430.20 of this chapter governing the commitment of
a defendant for failure to pay a fine shall be applicable to a mandatory
surcharge, sex offender registration fee, DNA databank fee and  a  crime
victim  assistance  fee  imposed  pursuant to subdivision one of section
60.35 of the penal law, subdivision twenty-a of  section  three  hundred
eighty-five  of  the  vehicle and traffic law, subdivision nineteen-a of
section four hundred one of the vehicle and traffic law, or a  mandatory
surcharge imposed pursuant to section eighteen hundred nine of the vehi-
cle  and  traffic  law  [or], section 27.12 of the parks, recreation and
historic preservation law, A MANDATORY  SURCHARGE  IMPOSED  PURSUANT  TO
SECTION  530.12  OR  530.13  OF  THIS  CHAPTER, OR A MANDATORY SURCHARGE
IMPOSED PURSUANT TO SECTION 352.3, FOUR HUNDRED FORTY-SIX, FIVE  HUNDRED
FIFTY-ONE,  SIX  HUNDRED  FIFTY-SIX,  SEVEN  HUNDRED  FIFTY-NINE,  EIGHT
HUNDRED FORTY-TWO, OR ONE THOUSAND FIFTY-SIX OF THE  FAMILY  COURT  ACT.
When the court directs that the defendant be imprisoned until the manda-
tory  surcharge,  sex  offender  registration fee or DNA databank fee is
satisfied, it must specify a  maximum  period  of  imprisonment  not  to
exceed fifteen days; provided, however, THAT a court may not direct that
a  defendant  be  imprisoned until the mandatory surcharge, sex offender
registration fee, or DNA databank fee  is  satisfied  or  otherwise  for
failure to pay the mandatory surcharge, sex offender registration fee or
DNA databank fee unless the court makes a contemporaneous finding on the
record, after according defendant notice and an opportunity to be heard,
that  the  payment of the mandatory surcharge, sex offender registration
fee or DNA databank fee upon defendant will  not  work  an  unreasonable
hardship upon him or her or his or her immediate family.
  S  4.  Subdivisions 1, 2, 3, 4 and 5 of section 420.40 of the criminal
procedure law, as amended by section 8 of part F of chapter  62  of  the
laws of 2003, are amended to read as follows:
  1.  Applicability. The procedure specified in this section governs the
deferral of the obligation to pay all or part of a mandatory  surcharge,
sex  offender  registration  fee or DNA databank fee imposed pursuant to
subdivision one of section 60.35 of the penal  law,  SECTION  530.12  OR
530.13  OF  THIS  CHAPTER,  SECTION  352.3, FOUR HUNDRED FORTY-SIX, FIVE
HUNDRED FIFTY-ONE, SIX  HUNDRED  FIFTY-SIX,  SEVEN  HUNDRED  FIFTY-NINE,
EIGHT  HUNDRED  FORTY-TWO, OR ONE THOUSAND FIFTY-SIX OF THE FAMILY COURT
ACT and financial hardship hearings relating to mandatory surcharges.
  2. On an appearance date set forth in a  summons  issued  pursuant  to
subdivision  three  of  section 60.35 of the penal law, section eighteen
hundred nine of the vehicle and traffic law, or  section  27.12  of  the
parks,  recreation and historic preservation law, OR UPON ISSUANCE OF AN
ORDER OF PROTECTION PURSUANT TO SECTION 530.12 OR 530.13 OF  THIS  CHAP-
TER,  SECTION 352.3, FOUR HUNDRED FORTY-SIX, FIVE HUNDRED FIFTY-ONE, SIX
HUNDRED FIFTY-SIX, SEVEN HUNDRED FIFTY-NINE, EIGHT HUNDRED FORTY-TWO, OR

A. 5105                             3

ONE THOUSAND FIFTY-SIX OF THE FAMILY COURT ACT, a  person  upon  whom  a
mandatory  surcharge,  sex offender registration fee or DNA databank fee
was levied shall have an opportunity to present on the  record  credible
and  verifiable  information  establishing that the mandatory surcharge,
sex offender registration fee or DNA databank fee should be deferred, in
whole or in part, because, due to the  indigence  of  such  person,  the
payment of said surcharge, sex offender registration fee or DNA databank
fee  would  work  an  unreasonable  hardship on the person or his or her
immediate family.
  3. In assessing such information, the superior court shall be  mindful
of  the mandatory nature of the surcharge, sex offender registration fee
and DNA databank fee, and the important criminal justice  [and],  victim
services,  AND  VICTIMS  OF  DOMESTIC  VIOLENCE  DIRECT  LEGAL  SERVICES
sustained by such fees.
  4. Where a court determines that it will defer part or all of a manda-
tory surcharge, sex  offender  registration  fee  or  DNA  databank  fee
imposed  pursuant  to subdivision one of section 60.35 of the penal law,
SECTION 530.12 OR 530.13 OF THIS CHAPTER, SECTION  352.3,  FOUR  HUNDRED
FORTY-SIX,  FIVE HUNDRED FIFTY-ONE, SIX HUNDRED FIFTY-SIX, SEVEN HUNDRED
FIFTY-NINE, EIGHT HUNDRED FORTY-TWO, OR ONE THOUSAND  FIFTY-SIX  OF  THE
FAMILY  COURT  ACT,  a  statement  of such finding and of the facts upon
which it is based shall be made part of the record.
  5. A court which defers a  person's  obligation  to  pay  a  mandatory
surcharge,  sex  offender  registration  fee or DNA databank fee imposed
pursuant to subdivision one of section 60.35 of the penal  law,  SECTION
530.12 OR 530.13 OF THIS CHAPTER, SECTION 352.3, FOUR HUNDRED FORTY-SIX,
FIVE HUNDRED FIFTY-ONE, SIX HUNDRED FIFTY-SIX, SEVEN HUNDRED FIFTY-NINE,
EIGHT  HUNDRED  FORTY-TWO, OR ONE THOUSAND FIFTY-SIX OF THE FAMILY COURT
ACT shall do so in a written order. Such  order  shall  not  excuse  the
person  from the obligation to pay the surcharge, sex offender registra-
tion fee or DNA databank fee. Rather, the court's order shall direct the
filing of a certified copy of the order with the  county  clerk  of  the
county in which the court is situate except where the court which issues
such  order is the supreme court in which case the order itself shall be
filed by the clerk of the court acting in his or  her  capacity  as  the
county  clerk  of  the  county in which the court is situate. Such order
shall be entered by the county clerk in the same manner as a judgment in
a civil action in accordance with subdivision (a) of rule five  thousand
sixteen of the civil practice law and rules. The order shall direct that
any unpaid balance of the mandatory surcharge, sex offender registration
fee  or  DNA databank fee may be collected in the same manner as a civil
judgment.  The entered order shall be deemed to constitute  a  judgment-
roll  as  defined in [section] RULE five thousand seventeen of the civil
practice law and rules and immediately after entry  of  the  order,  the
county clerk shall docket the entered order as a money judgment pursuant
to section five thousand eighteen of such law and rules.
  S  5. Section 352.3 of the family court act is amended by adding a new
subdivision 3 to read as follows:
  (3) WHENEVER A COURT MAKES AN ORDER  OF  PROTECTION,  THERE  SHALL  BE
LEVIED UPON THE PARTY AGAINST WHOM THE ORDER HAS BEEN ISSUED A MANDATORY
SURCHARGE IN THE AMOUNT OF TWENTY-FIVE DOLLARS. SUCH MANDATORY SURCHARGE
SHALL  BE  PAID  TO  THE  CLERK  OF THE COURT WHICH ISSUED SUCH ORDER OF
PROTECTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING  COLLECTION
OF  THE  MANDATORY  SURCHARGES, THE COLLECTING COURT SHALL DETERMINE THE
AMOUNT OF MANDATORY SURCHARGES COLLECTED, AND IT SHALL PAY SUCH MONEY TO
THE STATE COMPTROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE STATE  TREAS-

A. 5105                             4

URY TO THE CREDIT OF THE DOMESTIC VIOLENCE LEGAL SERVICES ACCOUNT ESTAB-
LISHED BY SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S  6.  Section  446 of the family court act is amended by adding a new
closing paragraph to read as follows:
  WHENEVER A COURT MAKES AN ORDER OF PROTECTION UNDER THIS  PART,  THERE
SHALL  BE LEVIED UPON THE PARTY AGAINST WHOM THE ORDER HAS BEEN ISSUED A
MANDATORY SURCHARGE IN THE AMOUNT OF TWENTY-FIVE DOLLARS. SUCH MANDATORY
SURCHARGE SHALL BE PAID TO THE CLERK OF  THE  COURT  WHICH  ISSUED  SUCH
ORDER  OF  PROTECTION.  WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING
COLLECTION OF THE  MANDATORY  SURCHARGES,  THE  COLLECTING  COURT  SHALL
DETERMINE THE AMOUNT OF MANDATORY SURCHARGES COLLECTED, AND IT SHALL PAY
SUCH MONEY TO THE STATE COMPTROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE
STATE  TREASURY  TO  THE  CREDIT OF THE DOMESTIC VIOLENCE LEGAL SERVICES
ACCOUNT ESTABLISHED BY SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S 7. Section 551 of the family court act is amended by  adding  a  new
closing paragraph to read as follows:
  WHENEVER  A  COURT  MAKES  AN  ORDER OF PROTECTION UNDER THIS ARTICLE,
THERE SHALL BE LEVIED UPON THE PARTY AGAINST WHOM  THE  ORDER  HAS  BEEN
ISSUED  A MANDATORY SURCHARGE IN THE AMOUNT OF TWENTY-FIVE DOLLARS. SUCH
MANDATORY SURCHARGE SHALL BE PAID TO THE CLERK OF THE COURT WHICH ISSUED
SUCH ORDER OF PROTECTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOW-
ING COLLECTION OF THE MANDATORY SURCHARGES, THE COLLECTING  COURT  SHALL
DETERMINE THE AMOUNT OF MANDATORY SURCHARGES COLLECTED, AND IT SHALL PAY
SUCH MONEY TO THE STATE COMPTROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE
STATE  TREASURY  TO  THE  CREDIT OF THE DOMESTIC VIOLENCE LEGAL SERVICES
ACCOUNT ESTABLISHED BY SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S 8. Section 656 of the family court act is amended by  adding  a  new
closing paragraph to read as follows:
  WHENEVER  A  COURT MAKES AN ORDER OF PROTECTION UNDER THIS PART, THERE
SHALL BE LEVIED UPON THE PARTY AGAINST WHOM THE ORDER HAS BEEN ISSUED  A
MANDATORY SURCHARGE IN THE AMOUNT OF TWENTY-FIVE DOLLARS. SUCH MANDATORY
SURCHARGE  SHALL  BE  PAID  TO  THE CLERK OF THE COURT WHICH ISSUED SUCH
ORDER OF PROTECTION. WITHIN THE FIRST TEN DAYS OF  THE  MONTH  FOLLOWING
COLLECTION  OF  THE  MANDATORY  SURCHARGES,  THE  COLLECTING COURT SHALL
DETERMINE THE AMOUNT OF MANDATORY SURCHARGES COLLECTED, AND IT SHALL PAY
SUCH MONEY TO THE STATE COMPTROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE
STATE TREASURY TO THE CREDIT OF THE  DOMESTIC  VIOLENCE  LEGAL  SERVICES
ACCOUNT ESTABLISHED BY SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S  9.  Section  759 of the family court act is amended by adding a new
closing paragraph to read as follows:
  WHENEVER A COURT MAKES AN ORDER  OF  PROTECTION  UNDER  THIS  ARTICLE,
THERE  SHALL  BE  LEVIED  UPON THE PARTY AGAINST WHOM THE ORDER HAS BEEN
ISSUED A MANDATORY SURCHARGE IN THE AMOUNT OF TWENTY-FIVE DOLLARS.  SUCH
MANDATORY SURCHARGE SHALL BE PAID TO THE CLERK OF THE COURT WHICH ISSUED
SUCH ORDER OF PROTECTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOW-
ING  COLLECTION  OF THE MANDATORY SURCHARGES, THE COLLECTING COURT SHALL
DETERMINE THE AMOUNT OF MANDATORY SURCHARGES COLLECTED, AND IT SHALL PAY
SUCH MONEY TO THE STATE COMPTROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE
STATE TREASURY TO THE CREDIT OF THE  DOMESTIC  VIOLENCE  LEGAL  SERVICES
ACCOUNT ESTABLISHED BY SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S  10.  Section 842 of the family court act is amended by adding a new
closing paragraph to read as follows:
  WHENEVER A COURT MAKES AN ORDER OF PROTECTION UNDER THIS  PART,  THERE
SHALL  BE LEVIED UPON THE PARTY AGAINST WHOM THE ORDER HAS BEEN ISSUED A
MANDATORY SURCHARGE IN THE AMOUNT OF TWENTY-FIVE DOLLARS. SUCH MANDATORY
SURCHARGE SHALL BE PAID TO THE CLERK OF  THE  COURT  WHICH  ISSUED  SUCH

A. 5105                             5

ORDER  OF  PROTECTION.  WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOWING
COLLECTION OF THE  MANDATORY  SURCHARGES,  THE  COLLECTING  COURT  SHALL
DETERMINE THE AMOUNT OF MANDATORY SURCHARGES COLLECTED, AND IT SHALL PAY
SUCH MONEY TO THE STATE COMPTROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE
STATE  TREASURY  TO  THE  CREDIT OF THE DOMESTIC VIOLENCE LEGAL SERVICES
ACCOUNT ESTABLISHED BY SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S 11. Section 1056 of the family court act is amended by adding a  new
subdivision 6 to read as follows:
  6.  WHENEVER  A  COURT  MAKES  AN ORDER OF PROTECTION UNDER THIS PART,
THERE SHALL BE LEVIED UPON THE PARTY AGAINST WHOM  THE  ORDER  HAS  BEEN
ISSUED  A MANDATORY SURCHARGE IN THE AMOUNT OF TWENTY-FIVE DOLLARS. SUCH
MANDATORY SURCHARGE SHALL BE PAID TO THE CLERK OF THE COURT WHICH ISSUED
SUCH ORDER OF PROTECTION. WITHIN THE FIRST TEN DAYS OF THE MONTH FOLLOW-
ING COLLECTION OF THE MANDATORY SURCHARGES, THE COLLECTING  COURT  SHALL
DETERMINE THE AMOUNT OF MANDATORY SURCHARGES COLLECTED, AND IT SHALL PAY
SUCH MONEY TO THE STATE COMPTROLLER, WHO SHALL DEPOSIT SUCH MONEY IN THE
STATE  TREASURY  TO  THE  CREDIT OF THE DOMESTIC VIOLENCE LEGAL SERVICES
ACCOUNT ESTABLISHED BY SECTION NINETY-NINE-Q OF THE STATE FINANCE LAW.
  S 12. The state finance law is amended by adding a new section 99-q to
read as follows:
  S 99-Q. DOMESTIC VIOLENCE LEGAL SERVICES ACCOUNT. 1. THERE  IS  HEREBY
ESTABLISHED  IN  THE  JOINT  CUSTODY  OF  THE  STATE COMPTROLLER AND THE
COMMISSIONER OF TAXATION AND FINANCE AN  ACCOUNT  TO  BE  KNOWN  AS  THE
DOMESTIC VIOLENCE LEGAL SERVICES ACCOUNT.
  2.  SUCH ACCOUNT SHALL CONSIST OF ALL MANDATORY SURCHARGES RECEIVED BY
THE COMPTROLLER PURSUANT TO SUBDIVISION SIX-B OF SECTION 530.12  OF  THE
CRIMINAL  PROCEDURE  LAW,  SUBDIVISION  FIVE-A  OF SECTION 530.13 OF THE
CRIMINAL PROCEDURE LAW, SUBDIVISION THREE OF SECTION 352.3 AND  SECTIONS
FOUR  HUNDRED  FORTY-SIX, FIVE HUNDRED FIFTY-ONE, SIX HUNDRED FIFTY-SIX,
SEVEN HUNDRED FIFTY-NINE, EIGHT HUNDRED FORTY-TWO, AND  SUBDIVISION  SIX
OF  SECTION  ONE THOUSAND FIFTY-SIX OF THE FAMILY COURT ACT AND REQUIRED
TO BE DEPOSITED TO THIS ACCOUNT AND ALL OTHER MONEYS CREDITED OR  TRANS-
FERRED THERETO FROM ANY OTHER FUND OR SOURCE PURSUANT TO LAW.
  3.  MONEYS OF THE ACCOUNT, FOLLOWING APPROPRIATION BY THE LEGISLATURE,
SHALL BE AWARDED TO THE NEW YORK STATE OFFICE FOR PREVENTION OF DOMESTIC
VIOLENCE FOR THE PROVISION OF  DIRECT  LEGAL  SERVICES  FOR  VICTIMS  OF
DOMESTIC VIOLENCE.
  4.  AFTER  CONSULTATION  WITH DOMESTIC VIOLENCE ADVOCATES, SUCH OFFICE
SHALL PROMULGATE REGULATIONS FOR THE EXPENDITURE OF FUNDS IN  ACCORDANCE
WITH THIS SECTION.
  5.  NO  MORE  THAN TEN PERCENT OF THE MONEYS DEPOSITED IN THIS ACCOUNT
MAY BE EXPENDED FOR ADMINISTRATIVE PURPOSES.
  S 13. This act shall  take  effect  on  the  first  of  November  next
succeeding the date on which it shall have become a law.