senate Bill S4302A

Signed By Governor
2011-2012 Legislative Session

Relates to allegations in family offense petitions

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Archive: Last Bill Status Via A7632 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Aug 03, 2011 signed chap.309
Jul 22, 2011 delivered to governor
Jun 23, 2011 returned to assembly
passed senate
3rd reading cal.914
substituted for s4302a
Jun 23, 2011 substituted by a7632
Jun 06, 2011 advanced to third reading
Jun 02, 2011 2nd report cal.
Jun 01, 2011 1st report cal.914
May 11, 2011 print number 4302a
amend (t) and recommit to judiciary
Mar 28, 2011 referred to judiciary

Votes

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Bill Amendments

Original
A (Active)
Original
A (Active)

S4302 - Bill Details

See Assembly Version of this Bill:
A7632
Law Section:
Family Court Act
Laws Affected:
Amd §821, Fam Ct Act

S4302 - Bill Texts

view summary

Relates to allegations in family offense petitions.

view sponsor memo
BILL NUMBER:S4302

TITLE OF BILL:
An act
to amend the family court act and the domestic relations law, in
relation to service of orders of protection in family and supreme court
proceedings and allegations in family offense petitions

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

Of all the changes to the domestic violence laws in New York State
during the past two decades, one of the most helpful has been
introduction of a presumption in favor of law enforcement service of
civil orders of protection and associated documents. Parties
protected by temporary or final orders of protection in Supreme and
Family Courts do not, unless they so request, bear the burden of
arranging for service; nor do they - or the friends or family members
they may enlist for that purpose - face the danger inherent in
personal service in volatile domestic violence cases. However, three
provisions in the statutory framework regarding service have
engendered confusion. It is the aim of this measure to eliminate that
confusion and, at the same time, to amend the family offense petition
requirements to conform to recent legislation.

First, the measure would amend Family Court Act § 153-b and Domestic
Relations Law §240 to clarify that chapter 261 of the Laws of 2010
did not alter the requirements for personal service or the
presumption in favor of law enforcement personal service of temporary
orders of protection, orders of protection and the accompanying
petitions, summonses and other documents. As its supporting
memorandum made clear, chapter 261 simply provided that, in order to
expedite the service process, courts may electronically transmit the
documents to law enforcement officials so that they may serve
them promptly. See NYS Assembly Memorandum in Support of A.10410.
Chapter 261 did not, as some have erroneously suggested, abrogate the
requirement of personal service by permitting electronic service
directly upon the parties. In fact, it merely made permanent and
statewide what had been a temporary authorization for pilot projects
for electronic transmittal of documents to law enforcement for
service in nine counties. See L. 2007, c. 330.

Second, the measure would address a problem that has arisen in light
of the interpretation by law enforcement in New York City of the
requirement in Family Court Act §826(a) that, unless a warrant has
been issued, service of a summons and petition in a family offense
case must be made at least 24 hours before the date indicated for the
initial appearance. The section provides for an adjournment of three
days upon request of the respondent, which clearly protects the due
process rights of a respondent, including any case in which the
24-hour requirement has not been met. However, as the Family Court,
Bronx County, noted, in Grant v. Pugh, 25 Misc.3d 417 (Fam. Ct.,
Bronx Co., 2009), police officers have relied upon Family Court Act
§826 to preclude any service of documents less than 24 hours before
the court appearance, thus "forcing petitioners alleging domestic


violence, sufficient to get an ex parte exclusion order from the
court, to go home to the respondent whom the court has ordered
excluded from the home." 25 Misc.3d, at 420. That Court held that the
fact that service of the documents, as well as a temporary order of
protection, may have been made less than 24 hours before the court
date should not render the service invalid
or the temporary order of protection ineffective;
it should simply entitle the respondent to avail himself or herself of
the right to request an adjournment. Consistent with the court's
interpretation, this measure would clarify that where a respondent
has requested an adjournment of a family offense proceeding, the court
may continue or grant a temporary order of protection to protect the
petitioner during the adjournment period. In this way, alleged
victims of domestic violence would not be left vulnerable during what
is generally recognized as the most dangerous period of time for them
- the period immediately surrounding the initiation of litigation,
especially court proceedings seeking to exclude alleged abusers -
while the due process rights of the alleged abusers to adequate
notice and an opportunity to prepare a defense would be fully
protected.

Finally, this measure would conform Family Court Act §821 to a
recent amendment to Family Court Act §812. Chapter 405 of the Laws
of 2010 added strangulation and criminal obstruction of breathing and
blood circulation to the list of family offenses for which family and
criminal courts exercise concurrent jurisdiction, but failed to add
these new crimes to the family offenses that may be alleged in a
petition brought under Article 8 of the Family Court Act. Several
cases have resulted in summary dismissals of family offense petitions
that failed to allege family offenses enumerated in
Family Court Act § 821, underscoring the importance of enumerating all
offenses listed in Family Court Act §812 in Family Court Act §821 as
well. See, e.g., Brennan v. Anesi, 283 A.D.2d 693 (3d Dept. 2001);
Jones v. Roper. 187 A.D.2d 593 (2d Dept. 1992);
Matter of Paulette PG v. Evan CG, 26 Misc.3d 323 (Fam. Ct., Bronx Co.,
2009). This measure, therefore, would add strangulation and criminal
obstruction of breathing and blood circulation to the possible
allegations set forth in Family Court Act .821.

This measure would have no fiscal impact upon the State, and would
take effect immediately.

LEGISLATIVE HISTORY:
None. New proposal.

EFFECTIVE DATE:
Immediately.

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

                                  4302

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 28, 2011
                               ___________

Introduced by Sen. SAVINO -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Judiciary

AN ACT to amend the family court act and the domestic relations law,  in
  relation  to  service  of  orders  of protection in family and supreme
  court proceedings and allegations in family offense petitions

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

  Section  1.  Subdivision (e) of section 153-b of the family court act,
as added by chapter 261 of the laws of  2010,  is  amended  to  read  as
follows:
  (e)  Notwithstanding  any  other provision of law, FOR THE PURPOSES OF
SECTION ONE HUNDRED SIXTY-EIGHT OF THIS ARTICLE AND TO ENSURE  EXPEDITED
SERVICE  BY  PEACE AND POLICE OFFICERS IN ACCORDANCE WITH THE PROVISIONS
OF THIS SECTION, all  orders  of  protection  and  temporary  orders  of
protection issued pursuant to this act, along with THE SUMMONS, PETITION
AND  any associated papers [that may] TO be served simultaneously, may[,
for the purposes of section one hundred sixty-eight of this article,] be
transmitted by facsimile transmission or electronic means  [and  may  be
transmitted  by facsimile transmission or electronic means for expedited
service in accordance with the provisions of this section] TO A PEACE OR
POLICE OFFICER, OR, IN THE CITY OF NEW YORK, TO A  DESIGNATED  REPRESEN-
TATIVE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK. For purposes of
this  section,  "facsimile transmission" and "electronic means" shall be
as defined in subdivision (f) of rule twenty-one hundred  three  of  the
civil practice law and rules. NOTHING IN THIS SUBDIVISION SHALL ALTER OR
LIMIT  THE  REQUIREMENTS  FOR  SERVICE  UNDER THIS SECTION AND THE CIVIL
PRACTICE LAW AND RULES.
  S 2. Paragraph (a) of subdivision 1 of section 821 of the family court
act, as amended by chapter 476 of the laws of 2009, is amended  to  read
as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10141-01-1

S. 4302                             2

  (a)  An  allegation  that  the  respondent  assaulted  or attempted to
assault his or her spouse, or former  spouse,  parent,  child  or  other
member of the same family or household or engaged in disorderly conduct,
harassment,  sexual  misconduct,  forcible touching, sexual abuse in the
third degree, sexual abuse in the second degree as set forth in subdivi-
sion  one  of  section  130.60  of  the  penal  law,  stalking, criminal
mischief, menacing [or], reckless endangerment, CRIMINAL OBSTRUCTION  OF
BREATHING OR BLOOD CIRCULATION OR STRANGULATION toward any such person;
  S  3.  Subdivision  (a)  of  section  826  of the family court act, as
amended by chapter 222 of the laws  of  1994,  is  amended  to  read  as
follows:
  (a)  Unless  the  court  issues  a  warrant  pursuant to section eight
hundred twenty-seven of this part, service of  a  summons  and  petition
shall  be made by delivery of a true copy thereof to the person summoned
at least twenty-four hours before the time stated  therein  for  appear-
ance.  If  so  requested  by the respondent, the court shall not proceed
with the hearing or  proceeding  earlier  than  three  days  after  such
service.    WHEN AN ADJOURNMENT IS GRANTED ON REQUEST OF THE RESPONDENT,
THE COURT MAY CONTINUE OR GRANT A TEMPORARY ORDER OF PROTECTION.
  S 4. Paragraph b of subdivision 3-a of section  240  of  the  domestic
relations  law,  as added by chapter 261 of the laws of 2010, is amended
to read as follows:
  b.  Notwithstanding  any  other  provision  of  law,  all  orders   of
protection  and  temporary  orders of protection filed and entered along
with any associated papers [that may] TO be served simultaneously may be
transmitted by facsimile transmission or electronic  means  [for]  TO  A
PEACE  OR  POLICE  OFFICER  OR, IN THE CITY OF NEW YORK, TO A DESIGNATED
REPRESENTATIVE OF THE POLICE DEPARTMENT OF THE CITY OF NEW YORK IN ORDER
TO ENSURE expedited service BY PEACE AND POLICE OFFICERS  in  accordance
with  the  provisions of this subdivision. For purposes of this subdivi-
sion, "facsimile  transmission"  and  "electronic  means"  shall  be  as
defined in subdivision (f) of rule twenty-one hundred three of the civil
practice  law  and  rules.    NOTHING IN THIS SUBDIVISION SHALL ALTER OR
LIMIT THE REQUIREMENTS FOR SERVICE UNDER  THIS  SECTION  AND  THE  CIVIL
PRACTICE LAW AND RULES.
  S 5. This act shall take effect immediately.

Co-Sponsors

S4302A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7632
Law Section:
Family Court Act
Laws Affected:
Amd §821, Fam Ct Act

S4302A (ACTIVE) - Bill Texts

view summary

Relates to allegations in family offense petitions.

view sponsor memo
BILL NUMBER:S4302A

TITLE OF BILL:
An act
to amend the family court act, in
relation to
allegations in family offense petitions

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Family
Court Advisory and Rules Committee.

This measure would conform Family Court Act §821 to a recent amendment
to Family Court Act §812. Chapter 405 of the Laws of 2010 added
strangulation and criminal obstruction of breathing and blood
circulation to the list of family offenses for which family and
criminal courts exercise concurrent jurisdiction, but failed to add
these new crimes to the family offenses that may be alleged in a
petition brought under Article 8 of the Family Court Act. Several
cases have resulted in summary dismissals of family offense petitions
that failed to allege family offenses enumerated in Family Court Act

§821, underscoring the importance of enumerating all offenses listed
in Family Court Act §812 in Family Court Act §821 as well. See, e.g.,
Brennan v. Anesi, 283 A.D.2d 693 (3d Dept. 2001); Jones v. Roper, 187
A.D.2d 593 (2d Dept. 1992); Matter of Paulette PG v.
Evan eG, 26 Misc.3d 323 (Fam. Ct., Bronx Co., 2009). This measure,
therefore, would add strangulation and criminal obstruction of
breathing and blood circulation to the possible allegations set forth
in Family Court Act §821.

This measure would have no fiscal impact upon the State, and would
take effect immediately.

LEGISLATIVE HISTORY:
None. New proposal.

EFFECTIVE DATE:
Immediately.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4302--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             March 28, 2011
                               ___________

Introduced by Sen. SAVINO -- (at request of the Office of Court Adminis-
  tration)  --  read  twice  and ordered printed, and when printed to be
  committed to the Committee on Judiciary -- committee discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

AN ACT to amend the family court act,  in  relation  to  allegations  in
  family offense petitions

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

  Section 1.  Paragraph (a) of subdivision 1 of section 821 of the fami-
ly court act, as amended by chapter 476 of the laws of 2009, is  amended
to read as follows:
  (a)  An  allegation  that  the  respondent  assaulted  or attempted to
assault his or her spouse, or former  spouse,  parent,  child  or  other
member of the same family or household or engaged in disorderly conduct,
harassment,  sexual  misconduct,  forcible touching, sexual abuse in the
third degree, sexual abuse in the second degree as set forth in subdivi-
sion one  of  section  130.60  of  the  penal  law,  stalking,  criminal
mischief,  menacing [or], reckless endangerment, CRIMINAL OBSTRUCTION OF
BREATHING OR BLOOD CIRCULATION OR STRANGULATION toward any such person;
  S 2. This act shall take effect immediately.




 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10141-02-1

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