S T A T E O F N E W Y O R K
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6653
2011-2012 Regular Sessions
I N A S S E M B L Y
March 24, 2011
___________
Introduced by M. of A. CURRAN -- read once and referred to the Committee
on Judiciary
AN ACT to amend the family court act, in relation to the disposition of
family offenses
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 841 of the family court act, as amended by chapter
706 of the laws of 1988, subdivisions (c) and (d) as amended and subdi-
vision (e) as added by chapter 222 of the laws of 1994 and the closing
paragraph as amended by chapter 326 of the laws of 2008, is amended to
read as follows:
S 841. Orders of disposition. 1. At the conclusion of a dispositional
hearing under this article, AS TO ANY ALLEGATION IN A PETITION WHICH THE
COURT FINDS IS NOT SUPPORTED BY A FAIR PREPONDERANCE OF THE EVIDENCE,
the court [may] SHALL enter an order:
(a) dismissing the [petition, if the] allegations of the petition
WHICH are not established; or
(b) suspending judgment for a period not in excess of six months[; or
(c)].
2. AT THE CONCLUSION OF A DISPOSITIONAL HEARING UNDER THIS ARTICLE, AS
TO ANY ALLEGATION IN A PETITION WHICH THE COURT FINDS IS SUPPORTED BY A
FAIR PREPONDERANCE OF THE EVIDENCE, THE COURT SHALL ENTER AN ORDER:
(A) placing the respondent on probation for a period not exceeding
[one year] THREE YEARS, and requiring respondent to participate in AND
SUCCESSFULLY COMPLETE a batterer's education program designed to help
end violent behavior, which may include referral to drug and alcohol
counseling, and to pay the costs thereof if respondent has the means to
do so, provided however that nothing contained herein shall be deemed to
require payment of the costs of any such program by the petitioner, the
state or any political subdivision thereof; [or] AND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08534-01-1
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[(d)] (B) making an order of protection in accord with section eight
hundred forty-two of this part; [or] AND
[(e)] (C) directing payment of restitution, WHEN WARRANTED, in an
amount not to exceed ten thousand dollars. An order of restitution may
be made in conjunction with any order of disposition authorized under
[subdivisions (b), (c), or (d)] PARAGRAPH (B) OF SUBDIVISION ONE of this
section OR PARAGRAPH (A) OR (B) OF THIS SUBDIVISION. In no case shall
an order of restitution be issued where the court determines that the
respondent has already paid such restitution as part of the disposition
or settlement of another proceeding arising from the same act or acts
alleged in the petition before the court[.]; AND
(D) DIRECTING THE DEFENDANT TO PAY A FINE PURSUANT TO THE PROVISIONS
OF ARTICLE EIGHTY OF THE PENAL LAW FOR THE FAMILY OFFENSE FOUND TO HAVE
BEEN COMMITTED AS IF THE DEFENDANT WERE CONVICTED THEREOF IN A COURT OF
CRIMINAL JURISDICTION.
3. No order of protection may direct any party to observe conditions
of behavior unless the party requesting the order of protection has
served and filed a petition or counter-claim in accordance with section
one hundred fifty-four-b of this act. Nothing in this section shall
preclude the issuance of a temporary order of protection ex parte,
pursuant to section eight hundred twenty-eight of this article.
4. Nothing in this section shall preclude the issuance of both an
order of probation and an order of protection as part of the order of
disposition.
5. Notwithstanding the foregoing provisions, an order of protection,
or temporary order of protection where applicable, may be entered
against a former spouse and persons who have a child in common, regard-
less of whether such persons have been married or have lived together at
any time, or against a member of the same family or household as defined
in subdivision one of section eight hundred twelve of this article.
6. (A) FOR PURPOSES OF THIS SECTION, "ELECTRONIC MONITORING" SHALL
MEAN THE TECHNOLOGY USED WHEN A DEVICE IS ATTACHED TO ANY OFFENDER'S
PERSON BY THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES TO
LIMIT AND MONITOR THE OFFENDER'S MOVEMENTS.
(B) IN LIEU OF AN ORDER OF PROBATION, AN ORDER FOR THE OFFENDER TO
PARTICIPATE IN AN ELECTRONIC MONITORING PROGRAM MAY BE ENTERED AT THE
DISCRETION OF THE COURT. THE COURT SHALL TAKE INTO ACCOUNT THE NATURE OF
THE OFFENSE AND THE PRIOR HISTORY OF THE OFFENDER INCLUDING THE
OFFENDER'S MENTAL HISTORY OR PRIOR CRIMINAL RECORD. ANY PERSON WHO HAS
PREVIOUSLY BEEN CONVICTED OF A FELONY SHALL NOT BE ELIGIBLE FOR ELEC-
TRONIC MONITORING.
(C) (I) ANY PERSON SENTENCED TO ELECTRONIC MONITORING SHALL BE ORDERED
TO REMAIN CONFINED IN THEIR OWN RESIDENCES BUT SHALL BE PERMITTED TO
LEAVE FOR MEDICAL AND/OR EMPLOYMENT PURPOSES ONLY OR FOR OTHER PURPOSES
IN THE DISCRETION OF THE SENTENCING COURT.
(II) ANY PERSON WHO VIOLATES ANY OF THE CONDITIONS IMPOSED UPON HIM BY
THE COURT, MAY AFTER A HEARING BEFORE THE COURT, BE DEEMED INELIGIBLE TO
CONTINUE HIS PARTICIPATION IN SUCH ALTERNATIVE PROGRAM, IN WHICH EVENT
THE COURT SHALL MAKE ANY OTHER AUTHORIZED DISPOSITION.
(III) IN DETERMINING WHETHER A VIOLATION HAS OCCURRED, THE COURT SHALL
MAKE A FINDING AS TO THE ACCURACY OF THE DEVICE USED TO MONITOR THE
MOVEMENTS OF THE PERSON SUBJECT TO THE ORDER, AND IT SHALL WHEN NECES-
SARY CONSULT WITH THE SUPPLIER OF SUCH DEVICE.
(D) THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES SHALL
SUPERVISE, AND ADMINISTER THE ELECTRONIC MONITORING PROGRAM ON A TEST
BASIS FOR TWO YEARS FOR OFFENDERS SUBJECT TO AN ORDER OF ELECTRONIC
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MONITORING. THE DIVISION OF PROBATION AND CORRECTIONAL ALTERNATIVES
SHALL CHOOSE AN APPROPRIATE VENDOR OF THE ELECTRONIC MONITORING EQUIP-
MENT. SUCH VENDOR SHALL BE APPROVED SUBJECT TO COMPETITIVE BIDDING
PROCEDURES UNDER THE STATE ADMINISTRATIVE PROCEDURE ACT. SUCH VENDOR
SHALL ENTER INTO A CONTRACT TO SUPPLY THE NEEDED PERSONNEL AND EQUIPMENT
WITH THE DIVISION. ANY OTHER RULES OR REGULATIONS NEEDED TO PERFORM SUCH
DUTIES SHALL BE PROMULGATED BY SUCH DIVISION. THE DIVISION SHALL SUBMIT
A REPORT TO THE GOVERNOR AND THE LEGISLATURE ON OR BEFORE THE DATE
OCCURRING EIGHTEEN MONTHS AFTER THE EFFECTIVE DATE OF THIS SUBDIVISION,
TOGETHER WITH ANY LEGISLATIVE PROPOSALS DEEMED NECESSARY OR ADVISABLE
FOR THE CONTINUATION OR ALTERATION OF SUCH PROGRAM AND CONCERNING THE
EFFECTIVENESS OF THE PROGRAM INCLUDING RECIDIVISM RATES AND COMPARISON
OF COSTS AMONG ELECTRONIC MONITORING AND INTENSIVE SUPERVISION.
S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law.