NY State Senate Bill 2009-S8038

Senate Bill S8038

2009-2010 Legislative Session

Creates the crime of aggravated domestic violence; provides information for the aggravated domestic violence offender

download bill text pdf

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 02, 2010	referred to codes

2009-S8038 (ACTIVE) - Details

See Assembly Version of this Bill:: A11365
Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §240.75, Pen L; add §200.63, CP L

2009-S8038 (ACTIVE) - Summary

Creates the crime of aggravated domestic violence, constituting a class E felony; provides for an indictment accompanied by a special information for the aggravated domestic violence offender under certain circumstances.

2009-S8038 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S8038

TITLE OF BILL:
An act to amend the penal law and the criminal procedure law, in
relation to the creation of the crime of aggravated domestic violence

PURPOSE:
To create a felony-level charge for cases in which an offender is
repeatedly convicted of a domestic violence offense.

SUMMARY OF PROVISIONS:

Section 1 establishes the crime of aggravated domestic violence as a
Class E felony and outlines the incidents that in the aggregate consti-
tute the new offense.

Section 2 provides that a special information may be included with an
indictment of aggravated domestic violence. This section sets f011h the
procedure for trying the case and states that determinations made
regarding certain allegations are binding in any future proceeding
unless the conviction or determination is reversed or vacated.

Section 3 establishes an effective date of 180 days after passage.

JUSTIFICATION:

From 2004 to 2009, in New York County alone, there were 622 individuals
convicted of two or more domestic violence offenses. Of those 622
defendants, 221 - or .36% had at least one case with a felony-level
assault charge.

The following cases from the New York County District Attorney's Office
illustrate the types of cases that prosecutors see every day:

* After a long misdemeanor domestic violence history, involving multiple
assaults, violations of orders of protection, a defendant chased his
girlfriend down the street with a machete, biting and clawing at her in
front of her three year old child.

* Shortly after pleading guilty to assaulting his spouse in front of
their children, a defendant went back to victim's apartment and hit her
in the face. Only $500 cash bail was set when defendant was arrested
again.

* A defendant has 132 prior convictions, many of which stemmed from
assaults against his partner. The defendant recently served 9 months in
jail for an assault against his daughter. Since his release on that
case, the defendant has been arrested again for domestic assault.

* One repeat domestic violence offender assaults his girlfriend each
time he is released from custody. Most recently, he was indicted for
biting the victim's face.

* After badly beating his pregnant ex-girlfriend, a defendant was
arrested. He continued to call his ex-girlfriend, threatening her from
jail. He was re-arrested, and pleaded guilty to both cases.

* A defendant with two prior convictions for assaulting his girlfriend
was recently rearrested and currently charged with a felony.

LEGISLATIVE HISTORY:
None.

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
180 days after becoming law.

2009-S8038 (ACTIVE) - Bill Text download pdf

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

                                  8038

                            I N  S E N A T E

                              June 2, 2010
                               ___________

Introduced  by Sen. SQUADRON -- read twice and ordered printed, and when
  printed to be committed 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

S. 8038                             2

(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

S. 8038                             3

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.

S. 8038                             4

  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.

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