Senate Bill S1414A

                                BILL NUMBER:S1414

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to the consideration of
certain factors when determining the issuance of an order of
recognizance or bail

PURPOSE:
The bill will help protect more victims of domestic violence by
expanding criminal procedure law section 510.30. The bill will
require the court, when determining recognizance or bail in cases of
domestic violence, to consider certain enumerated factors which could
lead to intimidation or injury by the principal to the victim or
witness.

SUMMARY OF PROVISIONS:
Section one re-letters paragraph (b) as paragraph (c) of subdivision 2
of section 510.30 of the criminal procedure law and adds a new
paragraph (b). This new paragraph requires the court to consider
certain factors when determining recognizance or bail in cases of
domestic violence such as prior acts of violence or threats of
violence, prior orders of protection, prior arrests or convictions
for offenses against family or household members or intimate or
formerly intimate partners, prior violations of orders of protection,
and access to firearms or a history of firearm use.
              

Section two defines the effective date as the first of November
following the date on which it shall become law

JUSTIFICATION:
Domestic violence is a societal problem of enormous prevalence and
impact. It has been identified by the Surgeon General of the United
States as the number one health problem affecting American women, and
it floods the justice system of New York State as well as the courts
of every other state in the nation.

New York State has been in the forefront of addressing this problem by
passing many progressive laws over the past few decades, including
the mandatory arrest law, the law creating the registry of orders of
protection, an anti-stalking law, and a law requiring judges to
consider evidence of domestic violence in all child custody and
visitation cases. However, one important
area of the law has not been updated to take into account the unique
nature of domestic violence offenses: New York's bail provisions.

As a result, perpetrators of domestic violence offenses are often set
free on low or no bail and thereby allowed to stalk, harm and
sometimes kill their specifically targeted victims. In December 2002,
a perpetrator of domestic violence was released on $1,500 bail by a
city judge in Westchester County after an attempted assault with a
gun on his former girlfriend. Within days after his release on bail,
the perpetrator shot his former girlfriend in the head and killed
himself. As recently as July 2010, a similar tragic incident occurred
in Dutchess County when the perpetrator killed his wife before
turning the gun on himself. This incident occurred only days after


his release on bail, following one month in jail stemming from an
incident of domestic violence.

If judges determining recognizance and bail in domestic violence cases
were required to consider well established risk factors to the victim
such as a history of violence or threats of violence, prior orders of
protection, and the accused's access to guns, many victims and their
children would be spared additional harm and, in some tragic
incidences, their lives.

The bail statute currently does not consider the unique nature of
domestic violence cases. The criminal who commits a street crime
against a stranger, for example, is not likely to target the victim
for additional criminal activity while the case is pending and
afterwards. Precisely the reverse is true for domestic violence
perpetrators, who are highly likely to do so. Those who commit acts
of domestic violence do so to exercise power and control over their
specific victim, with whom they have a relationship. Domestic
violence has a high rate of recidivism, and tends to escalate in
frequency and severity over time. The initiation of a court case
against the perpetrator is a high-risk time for the victim, who is
perceived by the abuser as trying to escape the relationship.
Perpetrators often threaten and harm their victims during the
pendency of the case in order to force them not to cooperate with the
prosecution and to reconcile.

New York law does not allow the bail determination to be used for
"preventive detention," in order to protect the public from a
generalized threat of further criminal activity by an accused.
However, New York law does permit the bail determination to be used
when necessary to protect witnesses to the crime. Domestic violence
cases fall squarely within this rule because the victim of the
offense is the key and some- time the only witness and, as noted
above, is highly likely to be targeted by the perpetrator for further
threats or harm. Thus, in domestic violence cases, it is essential
that the judge determining recognizance or bail consider factors that
indicate a risk of harm to the victim-witness. This bill offers
guidance to judges by specifying factors including prior acts of
violence or threats of violence, prior orders of protection, prior
arrests or convictions for offenses against intimates or family
members, prior violations of orders of protection, and access to
firearms.

This bill is drafted to include intimate partners and former intimate
partners as well as those who fall within the Criminal Procedure
Law's definition of members of the same family or household, This
broad definition is critical because so many victims of domestic
violence never married or had a child in common with the perpetrator
and thus would not meet the current definition.
Based on the Final Report to the Governor and the Legislature,
Evaluation of the Mandatory Arrest Provisions (January 2001), it can
be estimated that almost half of the victims of domestic offenses do
not meet the current definition.

Bail reform must help these victims as well. Bail reform is necessary
to protect the victim witness of domestic offenses. Current bail


provisions must be updated to reflect the reality of the lives of
domestic violence victims.

LEGISLATIVE HISTORY:
2007-2008: S.1080 - Referred to Codes
2005-2006: S.310 - Codes/Third Reading
2004:      S.6178 - Passed Senate

FISCAL IMPLICATIONS:
None to the state.

EFFECTIVE DATE:
The first November following the date
of enactment.

                                BILL NUMBER:S1414B

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to the consideration of
certain factors when determining the issuance of an order of
recognizance or bail

PURPOSE:
The bill will help protect more victims of domestic violence by
expanding criminal procedure law section 510.30. The bill will
require the court, when determining recognizance or bail in cases of
domestic violence, to consider certain enumerated factors which could
lead to intimidation or injury by the principal to the victim or
witness.

SUMMARY OF PROVISIONS:
Section one renumbers subparagraphs (vii) and (viii) as subparagraph
(viii) of paragraph (a) of subdivision 2 of section 510.30 of the
criminal procedure law and adds a new subparagraph (vii). This new
paragraph requires the court to consider certain factors when
determining recognizance or bail in cases of domestic violence such
as, prior violations of orders of protection and access to firearms
or a history of firearm use.

Section two defines the effective date as the sixtieth day following
              

the date on which it shall become law.

JUSTIFICATION:
Domestic violence is a societal problem of enormous prevalence and
impact. It has been identified by the Surgeon General of the United
States as the number one health problem affecting American women, and
it floods the justice system of New York State as well as the courts
of every other state in the nation.

New York State has been in the forefront of addressing this problem by
passing many progressive laws over the past few decades, including
the mandatory arrest law, the law creating the registry of orders of
protection, an anti-stalking law, and a law requiring judges to
consider evidence of domestic violence in all child custody and
visitation cases. However, one important area of the law has not been
updated to take into
account the unique nature of domestic violence offenses: New York's
bail provisions.

As a result, perpetrators of domestic violence offenses are often set
free on low or no bail and thereby allowed to stalk, harm and
sometimes kill their specifically targeted victims. In December 2002,
a perpetrator of domestic violence was released on $1,500 bail by a
city judge in Westchester County after an attempted assault with a
gun on his former girlfriend. Within days after his release on bail,

the perpetrator shot his former girlfriend in the head and killed
himself. As recently as July 2010, a similar tragic incident occurred
in Dutchess County when the perpetrator killed his wife before
turning the gun on himself. This incident occurred only days after
his release on bail, following one month in jail stemming from an
incident of domestic violence.

If judges determining recognizance and bail in domestic violence cases
were required to consider well established risk factors to the victim
such as prior violations of an order of protection and the accused's
access to guns, many victims and their children would be spared
additional harm and, in some tragic incidences, their lives.

The bail statute currently does not consider the unique nature of
domestic violence cases. The criminal who commits a street crime
against a stranger, for example, is not likely to target the victim
for additional criminal activity while the case is pending and
afterwards. Precisely the reverse is true for domestic violence
perpetrators, who are highly likely to do so. Those who commit acts
of domestic violence do so to exercise power and control over their
specific victim, with whom they have a relationship. Domestic
violence has a high rate of recidivism, and tends to escalate in
frequency and severity over time. The initiation of a court case
against the perpetrator is a high-risk time for the victim, who is
perceived by the abuser as trying to escape the relationship.
Perpetrators often threaten and harm their victims during the
pendency of the case in order to force them not to cooperate with the
prosecution and to reconcile.

Bail reform is necessary to protect the victim-witness of domestic
offenses.

EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become law.