senate Bill S5822

2011-2012 Legislative Session

Establishes the crime of aggravated domestic violence

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


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

do you support this bill?

Actions

view actions (2)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to codes
Jun 17, 2011 referred to rules

Co-Sponsors

view additional co-sponsors

S5822 - Bill Details

See Assembly Version of this Bill:
A1986B
Current Committee:
Law Section:
Penal Law
Laws Affected:
Add §240.75, Pen L; add §200.63, CP L

S5822 - Bill Texts

view summary

Establishes the crime of aggravated family offense when a person has committed a specified offense and has been convicted of one or more specified offenses within the past five years.

view sponsor memo
BILL NUMBER:S5822

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 family offense

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

SUMMARY OF PROVISIONS:
Section 1 establishes the crime of Aggravated
Family Offense as a class E felony and outlines the incidents that
constitute the new offense.

Section 2 provides that a special information may be included with an
indictment of an aggravated family offense. This section sets forth
the procedure for trying the case.

Section 3 establishes an effective dare of 90 days after passage.

JUSTIFICATION:
From 2004 to 2009, in New York. County alone, there
were 622 individuals convicted of two or more family 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 and 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:
S.8039, A.11365 of 2010 (Squadron/Rosenthal)

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
90 days after becoming law.

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

                                  5822

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 17, 2011
                               ___________

Introduced  by  Sens.  GOLDEN, LANZA, SQUADRON -- read twice and ordered
  printed, and when printed to be committed to the Committee on Rules

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation to the creation of the crime of aggravated family offense

  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 FAMILY OFFENSE.
  1.  A  PERSON  IS  GUILTY  OF AGGRAVATED FAMILY OFFENSE WHEN HE OR SHE
COMMITS A MISDEMEANOR DEFINED IN SUBDIVISION TWO OF THIS  SECTION  AS  A
SPECIFIED OFFENSE AND HE OR SHE HAS BEEN CONVICTED OF ONE OR MORE SPECI-
FIED  OFFENSES  WITHIN  THE  IMMEDIATELY  PRECEDING  FIVE YEARS. FOR THE
PURPOSES OF THIS SUBDIVISION, 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  SUCH  PREVIOUS
OFFENSES  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  OFFENSE"  IS  AN  OFFENSE DEFINED IN 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); SECTION 121.11  (CRIMINAL  OBSTRUCTION  OF  BREATHING  OR
BLOOD CIRCULATION); SECTION 121.12 (STRANGULATION IN THE SECOND DEGREE);
SECTION  121.13  (STRANGULATION IN THE FIRST DEGREE); SUBDIVISION ONE OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06167-17-1

S. 5822                             2

SECTION 125.15 (MANSLAUGHTER IN THE SECOND DEGREE); SUBDIVISION ONE, TWO
OR FOUR OF SECTION 125.20 (MANSLAUGHTER IN THE  FIRST  DEGREE);  SECTION
125.25  (MURDER  IN  THE  SECOND DEGREE); SECTION 130.20 (SEXUAL MISCON-
DUCT);  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  (CRIMINAL  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 (AGGRAVATED 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 IMPRISONMENT IN THE FIRST DEGREE); SECTION 135.60 (COERCION IN
THE  SECOND  DEGREE);  SECTION  135.65  (COERCION  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  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); AGGRAVATED FAMILY OFFENSE AS DEFINED IN THIS SECTION
OR ANY ATTEMPT OR CONSPIRACY TO COMMIT ANY  OF  THE  FOREGOING  OFFENSES
WHERE  THE DEFENDANT AND THE PERSON AGAINST WHOM THE OFFENSE WAS COMMIT-
TED WERE MEMBERS OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN  SUBDIVI-
SION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW.
  3.  THE PERSON AGAINST WHOM THE CURRENT SPECIFIED OFFENSE IS COMMITTED
MAY BE DIFFERENT FROM THE PERSON AGAINST  WHOM  THE  PREVIOUS  SPECIFIED
OFFENSE  WAS COMMITTED AND SUCH PERSONS DO NOT NEED TO BE MEMBERS OF THE
SAME FAMILY OR HOUSEHOLD.
  AGGRAVATED FAMILY OFFENSE 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 FAMILY OFFENSE.
  1.  WHENEVER  A  PERSON  IS  CHARGED  WITH THE COMMISSION OR ATTEMPTED
COMMISSION OF AN AGGRAVATED FAMILY OFFENSE AS DEFINED IN SECTION  240.75
OF THE PENAL LAW, AN INDICTMENT OR INFORMATION FOR SUCH OFFENSE SHALL BE
ACCOMPANIED  BY  A  SPECIAL  INFORMATION, FILED BY THE DISTRICT ATTORNEY
WITH THE COURT, ALLEGING THAT THE DEFENDANT WAS PREVIOUSLY CONVICTED  OF
A  SPECIFIED  OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION 240.75 OF
THE PENAL LAW, THAT AT THE TIME OF THE PREVIOUS  OFFENSE  THE  DEFENDANT
AND  THE  PERSON  AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF
THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION  ONE  OF  SECTION
530.11  OF  THIS  CHAPTER,  AND THAT SUCH PREVIOUS CONVICTION TOOK PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE PENAL LAW. EXCEPT AS PROVIDED HEREIN, THE PEOPLE MAY  NOT  REFER  TO
SUCH SPECIAL INFORMATION DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING
THE ALLEGATIONS THEREIN.

S. 5822                             3

  2.  PRIOR  TO THE COMMENCEMENT OF THE TRIAL, 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 EACH SUCH ALLEGATION, DENY ANY  SUCH
ALLEGATION OR REMAIN MUTE WITH RESPECT TO ANY SUCH ALLEGATION. DEPENDING
UPON  THE  DEFENDANT'S RESPONSE, THE TRIAL OF THE INDICTMENT OR INFORMA-
TION MUST THEN PROCEED AS FOLLOWS:
  (A)(I) IF THE PREVIOUS CONVICTION IS FOR AN AGGRAVATED FAMILY  OFFENSE
AS  DEFINED IN SECTION 240.75 OF THE PENAL LAW, AND THE DEFENDANT ADMITS
THE PREVIOUS CONVICTION OR THAT IT TOOK PLACE  WITHIN  THE  TIME  PERIOD
SPECIFIED  IN  SUBDIVISION  ONE OF SECTION 240.75 OF THE PENAL LAW, SUCH
ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED  FOR  THE
PURPOSES  OF  THE  PRESENT PROSECUTION, INCLUDING SENTENCING PURSUANT TO
SECTION 70.00 OF THE PENAL LAW. THE COURT MUST SUBMIT THE  CASE  TO  THE
JURY  AS IF SUCH ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF
THE OFFENSE.
  (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR  REMAINS  MUTE
WITH  RESPECT  TO  IT,  THE PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT,
THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE.
  (III) IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK  PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE  PENAL  LAW, OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE
MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART  OF  THEIR
CASE,  THAT  THE  PREVIOUS  CONVICTION TOOK PLACE WITHIN THE TIME PERIOD
SPECIFIED.
  (B)(I) IF THE PREVIOUS  CONVICTION  IS  FOR  A  SPECIFIED  OFFENSE  AS
DEFINED  IN  SUBDIVISION  TWO  OF SECTION 240.75 OF THE PENAL LAW, OTHER
THAN AN AGGRAVATED FAMILY OFFENSE, AND THE DEFENDANT ADMITS SUCH  PREVI-
OUS  CONVICTION,  THAT IT TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN
SUBDIVISION ONE OF SECTION 240.75 OF THE PENAL LAW, OR THAT THE  DEFEND-
ANT  AND  THE PERSON AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS
OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION
530.11 OF THIS CHAPTER, SUCH ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE
DEEMED ESTABLISHED FOR THE PURPOSES OF THE PRESENT PROSECUTION,  INCLUD-
ING  SENTENCING  PURSUANT  TO  SECTION 70.00 OF THE PENAL LAW. THE COURT
MUST SUBMIT THE CASE TO THE JURY AS IF THE ADMITTED ALLEGATION OR  ALLE-
GATIONS WERE NOT ELEMENTS OF THE OFFENSE.
  (II)  IF  THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE
WITH RESPECT TO IT, THE PEOPLE MAY PROVE,  BEYOND  A  REASONABLE  DOUBT,
THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE.
  (III)  IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE PENAL LAW, OR REMAINS MUTE WITH RESPECT TO THAT MATTER,  THE  PEOPLE
MAY  PROVE,  BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART OF THEIR
CASE, THAT THE PREVIOUS CONVICTION TOOK PLACE  WITHIN  THE  TIME  PERIOD
SPECIFIED.
  (IV) IF THE DEFENDANT DENIES THAT THE DEFENDANT AND THE PERSON AGAINST
WHOM  THE PREVIOUS OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY
OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF  SECTION  530.11  OF  THIS
CHAPTER,  OR  REMAINS  MUTE  WITH RESPECT TO THAT MATTER, THE PEOPLE MAY
PROVE, BEYOND A REASONABLE DOUBT, THAT ELEMENT OF THE OFFENSE BEFORE THE
JURY AS A PART OF THEIR CASE.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.