senate Bill S6357

2011-2012 Legislative Session

Creates the crimes of domestic abuse in the first, second and third degrees; creates a judicial diversion program for domestic abuse defendants

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Archive: Last Bill Status - In Committee


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

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Feb 01, 2012 referred to codes

S6357 - Bill Details

See Assembly Version of this Bill:
A3458
Current Committee:
Law Section:
Penal Law
Laws Affected:
Add §§120.80, 120.83 & 120.85, Pen L; add Art 217 §§217.00 & 217.05, CP L
Versions Introduced in 2009-2010 Legislative Session:
S6942, A9852

S6357 - Bill Texts

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Creates the crimes of domestic abuse in the first, second and third degrees; creates a judicial diversion program for domestic abuse defendants.

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BILL NUMBER:S6357

TITLE OF BILL:
An act
to amend the penal law, in relation to the crime of domestic abuse;
and to amend the criminal procedure law, in relation to a judicial
diversion program for domestic abuse defendants

PURPOSE OF THE BILL:
This bill will create the crime
of domestic
violence in the first, second and third degrees. It also creates a
judicial diversion program for domestic abuse defendants. This will
be a not-for-profit organization whose goal is to end abusive behavior.

SUMMARY OF PROVISIONS:
Section 1 of this legislation will define the
different levels of domestic violence. This section defines what
domestic violence in the first, second and third degree with consist
of.
Section 2 adds a new section to the criminal procedure law by adding
article 217 which will create a judicial diversion program for
domestic abuse defendants.

JUSTIFICATION:
Domestic violence is often a difficult crime for law
officials to get involved with. This legislation breaks down the
crime into first, second and third degree domestic violence charges.
Domestic violence in the third degree will be considered a class B
misdemeanor. Charges can be bought against a person if they kick,
shove, strike or threaten their partner. Domestic violence in the
second degree will be considered a class A misdemeanor. Individuals
facing charges of domestic violence in the second degree have
intentionally causes their partner physical injury. Domestic violence
in the first degree will be considered a class E felony. A person
will be charged with domestic violence in the first degree if they
have used a deadly weapon during the abuse or if he or she commits
the crimes of domestic abuse in the second degree and has previously
been convicted of the crime of domestic abuse in any degree as
defined within the preceding five years.

This legislation also creates a judicial diversion program for
domestic abuse defendants. This will be a program that is operated by
the public or not-for-profit whose end goal will be to end abusive
behavior of the defendants. It will be mandatory for individuals to
partake in the program if they have committed the crime of domestic
violence as defined in the previous section. If a person fails to
show up to the program, it will be considered a violation of a
court's agreement with the defendant. If a domestic violence offender
pleads guilty to their crime, they will be eligible for this program.

This domestic violence package is important for individuals who have
faced domestic abuse. Currently domestic violence is a misdemeanor no
matter how many times they have been charged with the crime. The
creation of domestic violence in the first degree creates a deterrent
for those who are violent domestic violence abusers and will prevent
a repeat offense.

Many times, victims of domestic abuse want to help their partner and
rehabilitate them. The judicial diversion program for domestic abuse
defendants allow a defendant to plead guilty to the most serious
crime and undergo treatment with permission of the Court. If a person
completes the programs, they can plead guilty to a less serious
charge of domestic violence.

PRIOR LEGISLATIVE HISTORY:
2012 - Same as A.3458
2010 - S.6942/A.9852

FISCAL IMPLICATIONS FOR STATE:
To be determined.

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

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

                                  6357

                            I N  S E N A T E

                            February 1, 2012
                               ___________

Introduced  by  Sen. KENNEDY -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in relation  to  the  crime  of  domestic
  abuse; and to amend the criminal procedure law, in relation to a judi-
  cial diversion program for domestic abuse defendants

  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  three  new  sections
120.80, 120.83 and 120.85 to read as follows:
S 120.80 DOMESTIC ABUSE IN THE THIRD DEGREE.
  A  PERSON  IS  GUILTY OF DOMESTIC ABUSE IN THE THIRD DEGREE WHEN, WITH
INTENT TO HARASS, ANNOY, OR ALARM HIS  OR  HER  SPOUSE,  FORMER  SPOUSE,
FELLOW  PARENT  OF  A  CHILD  IN  COMMON, OR DOMESTIC PARTNER, HE OR SHE
STRIKES, SHOVES, KICKS, OR OTHERWISE SUBJECTS SUCH  PERSON  TO  PHYSICAL
CONTACT OR ATTEMPTS OR THREATENS TO DO THE SAME.
  FOR  PURPOSES  OF  THIS  SECTION,  "SPOUSE" SHALL MEAN PERSONS LEGALLY
MARRIED TO ONE ANOTHER, "FORMER  SPOUSE"  SHALL  MEAN  PERSONS  FORMERLY
MARRIED  TO  ONE  ANOTHER REGARDLESS OF WHETHER THEY STILL RESIDE IN THE
SAME HOUSEHOLD, "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN  PERSONS
WHO  HAVE A CHILD IN COMMON REGARDLESS OF WHETHER SUCH PERSONS HAVE BEEN
MARRIED OR HAVE  LIVED  TOGETHER,  AND  "DOMESTIC  PARTNER"  SHALL  MEAN
PERSONS  WHO  ARE LIVING OR HAVE LIVED TOGETHER FOR AN EXTENDED DURATION
IN AN INTIMATE RELATIONSHIP MARKED BY  SEXUAL,  PHYSICAL,  OR  FINANCIAL
INTERDEPENDENCE.
  DOMESTIC ABUSE IN THE THIRD DEGREE IS A CLASS B MISDEMEANOR.
S 120.83 DOMESTIC ABUSE IN THE SECOND DEGREE.
  A  PERSON  IS  GUILTY OF DOMESTIC ABUSE IN THE SECOND DEGREE WHEN WITH
INTENT TO HARASS, ANNOY, OR ALARM HIS  OR  HER  SPOUSE,  FORMER  SPOUSE,
FELLOW  PARENT  OF A CHILD IN COMMON, OR DOMESTIC PARTNER, AS DEFINED IN
SECTION 120.80 OF THIS ARTICLE, HE OR SHE CAUSES  SUCH  PERSON  PHYSICAL
INJURY.
  DOMESTIC ABUSE IN THE SECOND DEGREE IS A CLASS A MISDEMEANOR.
S 120.85 DOMESTIC ABUSE IN THE FIRST DEGREE.
  A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE FIRST DEGREE WHEN:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08396-01-1

S. 6357                             2

  1.  (A)  WITH  INTENT  TO  CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE,
FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC  PARTNER,
AS  DEFINED  IN  SECTION  120.80  OF THIS ARTICLE, HE OR SHE CAUSES SUCH
INJURY TO SUCH PERSON OR TO A THIRD PERSON; OR
  (B)  HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE,
FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC  PARTNER,
AS DEFINED IN SECTION 120.80 OF THIS ARTICLE; OR
  (C)  WITH CRIMINAL NEGLIGENCE, HE OR SHE CAUSES PHYSICAL INJURY TO HIS
OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A  CHILD  IN  COMMON,  OR
DOMESTIC PARTNER, AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, BY MEANS
OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; OR
  2.  HE OR SHE COMMITS THE CRIME OF DOMESTIC ABUSE IN THE SECOND DEGREE
AND HAS PREVIOUSLY BEEN CONVICTED OF THE CRIME OF DOMESTIC ABUSE IN  ANY
DEGREE AS DEFINED IN THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS.
  DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 2. The criminal procedure law is amended by adding a new article 217
to read as follows:
                                ARTICLE 217
        JUDICIAL DIVERSION PROGRAM FOR DOMESTIC ABUSE DEFENDANTS
SECTION 217.00 DEFINITIONS.
        217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES.
S 217.00 DEFINITIONS.
  THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
  1.  "ELIGIBLE DEFENDANT" SHALL MEAN ANY PERSON WHO STANDS CHARGED WITH
DOMESTIC ABUSE AS DEFINED IN SECTIONS 120.80, 120.83 AND 120.85  OF  THE
PENAL LAW, PROVIDED, HOWEVER, A DEFENDANT IS NOT AN "ELIGIBLE DEFENDANT"
IF HE OR SHE:
  (A)  WITHIN  THE  PRECEDING TEN YEARS, EXCLUDING ANY TIME DURING WHICH
THE OFFENDER WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMIS-
SION OF THE PREVIOUS OFFENSE AND THE TIME OF COMMISSION OF  THE  PRESENT
OFFENSE,  HAS PREVIOUSLY BEEN CONVICTED OF: (I) A VIOLENT FELONY OFFENSE
AS DEFINED IN SECTION 70.02 OF THE PENAL LAW OR (II) ANY  OTHER  OFFENSE
FOR  WHICH  A MERIT TIME ALLOWANCE IS NOT AVAILABLE PURSUANT TO SUBPARA-
GRAPH (II) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT  HUNDRED
THREE OF THE CORRECTION LAW; OR
  (B)  HAS  PREVIOUSLY BEEN ADJUDICATED A SECOND VIOLENT FELONY OFFENDER
PURSUANT TO SECTION 70.04 OF THE PENAL LAW OR A PERSISTENT VIOLENT FELO-
NY OFFENDER PURSUANT TO SECTION 70.08 OF THE PENAL LAW.
  2. "DOMESTIC VIOLENCE PROGRAM" SHALL MEAN A PROGRAM WHICH IS  OPERATED
BY  A PUBLIC OR NOT-FOR-PROFIT ORGANIZATION FOR THE PURPOSE OF PROVIDING
DOMESTIC VIOLENCE PREVENTION WHOSE GOAL IS TO HELP  ELIGIBLE  DEFENDANTS
END ABUSIVE BEHAVIOR.
S 217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES.
  1.  AT  ANY  TIME  AFTER THE ARRAIGNMENT OF AN ELIGIBLE DEFENDANT, BUT
PRIOR TO THE ENTRY OF A PLEA OF GUILTY OR THE COMMENCEMENT OF TRIAL, THE
COURT MAY DETERMINE THAT AN ELIGIBLE DEFENDANT SHOULD BE  OFFERED  JUDI-
CIAL DIVERSION IN A DOMESTIC VIOLENCE PROGRAM. AN ELIGIBLE DEFENDANT MAY
DECLINE  TO  PARTICIPATE  IN  SUCH  A  PROGRAM AT ANY TIME. PRIOR TO THE
COURT'S ISSUING AN  ORDER  GRANTING  JUDICIAL  DIVERSION,  THE  ELIGIBLE
DEFENDANT  SHALL  BE REQUIRED TO ENTER A PLEA OF GUILTY TO THE CHARGE OR
CHARGES; PROVIDED, HOWEVER, THAT NO GUILTY PLEA SHALL BE REQUIRED WHEN:
  (A) THE PEOPLE AND THE COURT CONSENT TO THE ENTRY  OF  SUCH  AN  ORDER
WITHOUT A PLEA OF GUILTY; OR
  (B)  BASED ON A FINDING OF EXCEPTIONAL CIRCUMSTANCES, THE COURT DETER-
MINES THAT A PLEA OF GUILTY SHALL NOT BE REQUIRED. FOR PURPOSES OF  THIS
SUBDIVISION,  EXCEPTIONAL  CIRCUMSTANCES  EXIST  WHEN, REGARDLESS OF THE

S. 6357                             3

ULTIMATE DISPOSITION OF THE CASE, THE ENTRY OF A PLEA OF GUILTY IS LIKE-
LY TO RESULT IN SEVERE COLLATERAL CONSEQUENCES.
  2.  THE  ELIGIBLE DEFENDANT SHALL AGREE ON THE RECORD OR IN WRITING TO
ABIDE BY THE RELEASE CONDITIONS SET BY THE COURT, WHICH, SHALL  INCLUDE:
PARTICIPATION  IN  A SPECIFIED DOMESTIC VIOLENCE PROGRAM; PERIODIC COURT
APPEARANCES; AND A REQUIREMENT THAT THE DEFENDANT REFRAIN FROM  ENGAGING
IN CRIMINAL BEHAVIORS.
  3.  UPON  AN ELIGIBLE DEFENDANT'S AGREEMENT TO ABIDE BY THE CONDITIONS
SET BY THE COURT, THE COURT SHALL ISSUE A SECURING ORDER  PROVIDING  FOR
BAIL OR RELEASE ON THE DEFENDANT'S OWN RECOGNIZANCE AND CONDITIONING ANY
RELEASE  UPON  THE AGREED UPON CONDITIONS. THE DOMESTIC VIOLENCE PROGRAM
SHALL BEGIN AS SPECIFIED BY THE COURT AND AS SOON AS  PRACTICABLE  AFTER
THE  DEFENDANT'S  RELEASE. IN THE EVENT THAT A DOMESTIC VIOLENCE PROGRAM
IS NOT IMMEDIATELY AVAILABLE OR BECOMES UNAVAILABLE DURING THE COURSE OF
THE DEFENDANT'S PARTICIPATION IN THE  JUDICIAL  DIVERSION  PROGRAM,  THE
COURT MAY RELEASE THE DEFENDANT PURSUANT TO THE SECURING ORDER.
  4.  DURING  THE  PERIOD OF A DEFENDANT'S PARTICIPATION IN THE JUDICIAL
DIVERSION PROGRAM, THE COURT SHALL RETAIN JURISDICTION OF THE DEFENDANT.
THE COURT MAY REQUIRE THE DEFENDANT TO APPEAR IN COURT AT  ANY  TIME  TO
ENABLE THE COURT TO MONITOR THE DEFENDANT'S PROGRESS IN THE PROGRAM. THE
COURT  SHALL  PROVIDE NOTICE, REASONABLE UNDER THE CIRCUMSTANCES, TO THE
PEOPLE, THE DOMESTIC VIOLENCE PROGRAM PROVIDER, THE  DEFENDANT  AND  THE
DEFENDANT'S COUNSEL WHENEVER IT ORDERS OR OTHERWISE REQUIRES THE APPEAR-
ANCE  OF  THE  DEFENDANT IN COURT. FAILURE TO APPEAR AS REQUIRED WITHOUT
REASONABLE CAUSE THEREFOR SHALL CONSTITUTE A VIOLATION OF THE CONDITIONS
OF THE COURT'S AGREEMENT WITH THE DEFENDANT.
  5. UPON THE COURT'S DETERMINATION THAT THE DEFENDANT HAS  SUCCESSFULLY
COMPLETED  THE DOMESTIC VIOLENCE PROGRAM AND HAS OTHERWISE SATISFIED THE
CONDITIONS REQUIRED FOR SUCCESSFUL COMPLETION OF THE JUDICIAL  DIVERSION
PROGRAM, THE COURT SHALL COMPLY WITH THE TERMS AND CONDITIONS IT SET FOR
FINAL  DISPOSITION WHEN IT ACCEPTED THE DEFENDANT'S AGREEMENT TO PARTIC-
IPATE IN THE JUDICIAL DIVERSION PROGRAM. SUCH DISPOSITION  MAY  INCLUDE,
BUT IS NOT LIMITED TO:
  (A)  REQUIRING  THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION
SUPERVISION AND, UPON  THE  DEFENDANT'S  SUCCESSFUL  COMPLETION  OF  THE
INTERIM PROBATION SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY
OTHER  LAW,  PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA
AND DISMISSING THE INDICTMENT; OR
  (B) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF  INTERIM  PROBATION
SUPERVISION  AND,  UPON  SUCCESSFUL  COMPLETION OF THE INTERIM PROBATION
SUPERVISION TERM,  NOTWITHSTANDING  THE  PROVISION  OF  ANY  OTHER  LAW,
PERMITTING  THE  DEFENDANT  TO  WITHDRAW HIS OR HER GUILTY PLEA, ENTER A
GUILTY PLEA TO A MISDEMEANOR OFFENSE AND  SENTENCING  THE  DEFENDANT  AS
PROMISED  IN THE PLEA AGREEMENT, WHICH MAY INCLUDE A PERIOD OF PROBATION
SUPERVISION PURSUANT TO SECTION 65.00 OF THE PENAL LAW; OR
  (C) ALLOWING THE DEFENDANT TO WITHDRAW HIS  OR  HER  GUILTY  PLEA  AND
DISMISSING THE INDICTMENT.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.

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