senate Bill S888

2011-2012 Legislative Session

Provides clarification on determining the expiration date of an order of protection issued in relation to a family offense

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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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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to children and families
returned to senate
died in assembly
May 03, 2011 referred to codes
delivered to assembly
passed senate
Mar 16, 2011 advanced to third reading
Mar 15, 2011 2nd report cal.
Mar 14, 2011 1st report cal.216
Jan 05, 2011 referred to children and families

Votes

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Mar 14, 2011 - Children and Families committee Vote

S888
5
0
committee
5
Aye
0
Nay
0
Aye with Reservations
1
Absent
0
Excused
0
Abstained
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Children and Families Committee Vote: Mar 14, 2011

absent (1)

Co-Sponsors

S888 - Bill Details

See Assembly Version of this Bill:
A87
Current Committee:
Senate Children And Families
Law Section:
Criminal Procedure Law
Laws Affected:
Amd ยงยง530.12 & 530.13, CP L
Versions Introduced in 2009-2010 Legislative Session:
S4591, A776A

S888 - Bill Texts

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Provides clarification on determining the expiration date of an order of protection issued in relation to a family offense.

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BILL NUMBER:S888

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to determining the
expiration date of an order of protection

PURPOSE:
This bill would amend certain sections of
the criminal
procedure law with respect to the duration of orders of protection.

SUMMARY OF PROVISIONS:
Section one amends the opening paragraph of
subdivision five of section 530.12 of the criminal procedure law, as
amended by chapter 215 of the laws of 2006, to provide for the
entering of an order of protection upon sentencing on a conviction of
any crime or violation between spouses or former spouses, between
parent and child or between members of the same family or household.
In the case of a felony conviction, the court shall fix the duration
of an order of protection at not more than eight years from the date
of sentencing, except where the sentence is or includes a sentence of
probation on a conviction for a felony sexual assault, as defined in
subdivision three of section 65.00 of the penal law, in which case,
ten years from the date of such sentencing, or eight years from the
date of the expiration of the maximum term of an indeterminate or the
term of a determinate sentence of imprisonment actually imposed. In
the case of a conviction for a class A misdemeanor, the duration of
an order of protection shall be fixed at not more than five years
from the date of sentencing, except where the sentence is or includes
a sentence of probation on a conviction for a class A misdemeanor
sexual assault, as defined
in subdivision three of section 65.00 of the penal law, in which case,
six years from the date of such sentencing, and in the case of a
conviction for any other offense, not more than two years from the
date of sentencing. This section further provides that in calculating
the expiration date of the maximum term of an indeterminate or the
term of a determinate sentence of imprisonment actually imposed, the
court shall disregard any jail time credit that may be applied
against the defendant's sentence, and shall, in addition, with
respect to a determinate sentence, calculate the expiration date of
the term of such sentence by adding the full term of the imprisonment
portion of such sentence as imposed by the court and the full period
of post-release supervision imposed.

Section two amends the opening paragraph of subdivision four of section
530.13 of the criminal procedure law, as amended by chapter 215 of the
laws of2006, to provide for the entering of an order of protection
upon sentencing on a conviction of any offense. In the case of a
felony conviction, the court shall fix the duration of an order of
protection at not more than eight years from the date of sentencing,
except where the sentence is or includes a sentence of probation on a
conviction for a felony sexual assault, as defined in subdivision
three of section 65.00 of the penal law, in which case, ten years
from the date of such sentencing, or eight years from the date of the
expiration of the maximum term of an indeterminate or the term of a


determinate sentence of imprisonment actually imposed. In the case of
a conviction for a class A misdemeanor, the duration of an order of
protection shall be fixed at not more than five years from the date
of sentencing, except where the sentence is or includes a sentence of
probation on a conviction for a class A misdemeanor sexual assault,
as defined in subdivision three of section 65.00 of the penal law, in
which case, six years from the date of such sentencing, and in the
case of a conviction for any other offense, not more than two years
from the date of sentencing.
This section further provides that in calculating the
expiration date of the maximum term of an indeterminate or the term
of a determinate sentence of imprisonment actually imposed, the court
shall disregard any jail time credit that may be applied against the
defendant's sentence, and shall, in addition, with respect to a
determinate sentence, calculate the expiration date of the term of
such sentence by adding the full term of the imprisonment portion of
such sentence as imposed by the court and the full period of
post-release supervision imposed.

Section three establishes an effective date of thirty days after
becoming law, and would apply to all criminal actions whenever
commenced provided the sentence therein has not been imposed prior to
such date.

JUSTIFICATION:
Pursuant to subdivision five of Criminal Procedure Law
section 530.12, a criminal court, "upon conviction of a defendant of
any crime or violation between spouses, parent and child, or between
members of the same family or household," may, in addition to any
other disposition, issue a final order of protection. Similarly,
pursuant to subdivision four of CPL section 530.13, a criminal court,
"upon conviction* of a defendant of any offense, where the court has
not issued an order of protection pursuant to CPL section 530.12,"
may, in addition to any other disposition, issue a final order of
protection. With respect to the permissible duration of a final order
of protection, both CPL sections 530.12(5) and 530.13(4) also provide
that "the duration of such an order must be fixed by the court and,
in the case of a felony conviction, shall not exceed the greater of:
(i) eight years from the date of such conviction, or (ii) eight years
from the date of the expiration of the maximum term of an
indeterminate or the term of a determinate sentence of imprisonment
actually imposed; or in the case of a conviction for a class A
misdemeanor, shall not exceed five years from the date of such
conviction; or in the case of a conviction
for any other offense, shall not exceed two years from the date of
conviction." CPL sections 530.12(5) and 530.13(4).

Under a separate provision of both CPL sections 530.12 and 530.13,
every order of protection issued under those sections must "plainly
state the date that such order expires." CPL sections 530.12(6) and
530.13(5).
The provisions for calculating the maximum permissible duration of a
final order of protection seem relatively straightforward, but can be
difficult to apply, especially in cases where the order
is imposed in conjunction with a prison sentence. A court, for
example, that imposes a determinate or indeterminate sentence of
imprisonment, must, in determining the exact expiration date of the


term or maximum term of such sentence for purposes of calculating the
maximum permissible expiration date of a final order of protection,
take into account any jail time credit the defendant may have earned
prior to sentence. See, generally, People v. Nieves, 2 N.Y.3d 310
(2004). The exact amount of jail time credit a defendant has earned,
however, is ordinarily not available to the court at the time of
sentencing. Id., at 317. This may result in the court setting an
expiration date on the order of protection that exceeds the statutory
maximum, thus requiring that the defendant be returned to the
sentencing court (once the correct jail credit information is
obtained by the Department of Corrections) so the order can be
amended and a new (i.e. earlier) expiration date set. As with the
original order of protection, a copy of the amended order must then
be provided to the protected party or parties and to the appropriate
law enforcement authorities. See, generally, CPL sections 530.12(6)
and (8); and 530.13(5) and (6).

This bill would eliminate the need for this cumbersome and costly
procedure by amending CPL sections 530.12(5) and 530.13(4) to
expressly provide that, for purposes of calculating the maximum
permissible duration of a final order of protection, the sentencing
court "shall disregard any jail time credit that may be applied
against the defendant's sentence." In addition, the bill would amend
these same two CPL provisions to clarify that, for purposes of
calculating the maximum expiration date of a final order of
protection, the expiration date of a term of a determinate sentence
shall be calculated by adding the full term of the imprisonment
portion of such sentence as imposed by the court and the full period
of post-release supervision imposed. The latter amendment, which
codifies a 2002 ruling of the Appellate Division, Third Department
(see, People v. Goodband, 291 A.D.2d 584 3d Dept., 2002; but see,
People v. Wheeler, 268 A.D.2d 448 2d Dept., 2000, leave to appeal
denied, 94 N.Y.2d 926), is intended to both clarify the law in this
area and further simplify the process of calculating the maximum
permissible expiration date of a final order of protection issued in
a case where a determinate sentence is imposed. Together, these
amendments will help to ensure that all orders of protection "contain
specific and correct expiration dates to provide certainty for
defendants, the protected victims and witnesses, and law enforcement
authorities who may be called to enforce them." Nieves, supra., at 317.

In addition to simplifying the process of calculating the maximum
permissible duration of a final order of protection, the bill would
correct another anomaly in CPL sections 530.12(5) and 530.13(4).
Specifically, the bill would amend these two provisions to provide
that a final order of protection shall be issued not on the date of
conviction, as is currently required under the statutes, but on the
date of sentencing. A final order of protection is intended to
provide protection to a victim or witness during the period following
disposition of the case, when the defendant may no longer be subject
to a temporary order of protection issued as a condition of bail or
recognizance (see, CPL sections 530.12(1) and 530.13(1). It makes no
sense, therefore, to require that the final order be issued "upon
conviction," when the defendant may lawfully be subject to a
temporary order of protection (i.e. one issued as a condition of bail
or recognizance) right up until the date of sentencing.


In 2006 the criminal procedure law was amended to extend the
permissible duration of a final order of protection issued in criminal
cases. However the amendments did not account fully for the
statutorily required longer probation periods for class A misdemeanor
sexual assault convictions and felon sexual assault convictions. Thus
when a final order of protection is issued on a sexual assault
conviction where probation is imposed the order will expire before the
defendant has completed his probation. This bill would amend CPL
sections 530.12 5 and 530.13( 4) to provide that the duration of a
final order of protection issued in a case where the defendant is
convicted of sexual assault and probation is ordered or is ordered as
part of his sentence a final order of protection shall not exceed ten
ears in the case of a felon sexual assault or six years in the case
of a class A misdemeanor sexual assault.

Finally, this bill makes a technical amendment to the opening sentence
of subdivision five of CPL section 530.12 to clarify that a final
order of protection may also be issued under that subdivision where
the conviction is for a crime or violation between former spouses.
See, CPL section 530.12(13) providing, in relevant part, that a
temporary or final order of protection issued under that section "may
be entered against a former spouse"; and CPL section 530.11 (l)(c)
including within the definition of "members of the same family or
household" "persons formerly married to one another."

This bill will take effect thirty days after it becomes law, and would
apply to all criminal actions whenever commenced provided sentence
therein has not been imposed prior to such date.

*Both subdivision five of CPL section 530.12 and subdivision four of
CPL section 530.13 provide that, for purposes of determining the
duration of a final order of protection under those subdivisions, "a
conviction shall be deemed to include a conviction that has been
replaced by a youthful offender adjudication." CPL sections 530.12(5)
and 530.13(4).

LEGISLATIVE HISTORY:
A.6824, 2007 and 2008 referred
to codes. Same as
S.4693, 2007 and 2008 passed senate.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect thirty days after becoming
law, and would apply to all criminal actions whenever commenced
provided sentence therein has not been imposed prior to such date.

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

                                   888

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 5, 2011
                               ___________

Introduced  by  Sen. KRUEGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Children and Families

AN ACT to amend the criminal procedure law, in relation  to  determining
  the expiration date of an order of protection

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

  Section 1. The opening paragraph of subdivision 5 of section 530.12 of
the criminal procedure law, as amended by chapter 476  of  the  laws  of
2009, is amended to read as follows:
  Upon  SENTENCING  ON  A  conviction  [of]  FOR  any crime or violation
between spouses[,] OR FORMER SPOUSES, BETWEEN A  parent  and  child,  or
between  members  of the same family or household as defined in subdivi-
sion one of section 530.11 of this article, the court may in addition to
any other disposition, including a  conditional  discharge  or  youthful
offender  adjudication,  enter an order of protection. Where a temporary
order of protection was issued, the court shall state on the record  the
reasons for issuing or not issuing an order of protection.  The duration
of  such  an order shall be fixed by the court and: (A) in the case of a
felony conviction, shall not exceed the greater of: (i) eight years from
the date of such [conviction] SENTENCING, EXCEPT WHERE THE  SENTENCE  IS
OR  INCLUDES A SENTENCE OF PROBATION ON A CONVICTION FOR A FELONY SEXUAL
ASSAULT, AS DEFINED IN SUBDIVISION THREE OF SECTION 65.00 OF  THE  PENAL
LAW,  IN WHICH CASE, TEN YEARS FROM THE DATE OF SUCH SENTENCING, or (ii)
eight years from the date of the expiration of the maximum  term  of  an
indeterminate  or  the  term  of  a determinate sentence of imprisonment
actually imposed; or (B) in the case of  a  conviction  for  a  class  A
misdemeanor,  shall  not  exceed the greater of: (i) five years from the
date of such [conviction] SENTENCING, EXCEPT WHERE THE  SENTENCE  IS  OR
INCLUDES A SENTENCE OF PROBATION ON A CONVICTION FOR A CLASS A MISDEMEA-
NOR  SEXUAL ASSAULT, AS DEFINED IN SUBDIVISION THREE OF SECTION 65.00 OF

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00901-01-1

S. 888                              2

THE PENAL  LAW,  IN  WHICH  CASE,  SIX  YEARS  FROM  THE  DATE  OF  SUCH
SENTENCING,  or  (ii)  five years from the date of the expiration of the
maximum term of a definite or intermittent term actually imposed; or (C)
in  the case of a conviction for any other offense, shall not exceed the
greater of:  (i) two years from the date of [conviction] SENTENCING,  or
(ii)  two years from the date of the expiration of the maximum term of a
definite or intermittent term actually imposed.  FOR  PURPOSES  OF  THIS
SUBDIVISION ONLY, IN CALCULATING THE EXPIRATION DATE OF THE MAXIMUM TERM
OF  AN  INDETERMINATE OR THE TERM OF A DETERMINATE SENTENCE OF IMPRISON-
MENT ACTUALLY IMPOSED, THE COURT SHALL DISREGARD ANY  JAIL  TIME  CREDIT
THAT  MAY BE APPLIED AGAINST THE DEFENDANT'S SENTENCE PURSUANT TO SUBDI-
VISION THREE OF SECTION 70.30 OF THE PENAL LAW, AND SHALL, IN  ADDITION,
WITH RESPECT TO A DETERMINATE SENTENCE, CALCULATE THE EXPIRATION DATE OF
THE  TERM  OF  SUCH SENTENCE BY ADDING THE FULL TERM OF THE IMPRISONMENT
PORTION OF SUCH SENTENCE AS IMPOSED BY THE COURT AND THE FULL PERIOD  OF
POST-RELEASE  SUPERVISION  IMPOSED IN ACCORDANCE WITH SUBDIVISION TWO OF
SECTION 70.45 OF THE PENAL LAW. For purposes of determining the duration
of an order of  protection  entered  pursuant  to  this  subdivision,  a
conviction  shall  be  deemed  to  include  a  conviction  that has been
replaced by a youthful offender adjudication. In addition to  any  other
conditions, such an order may require the defendant:
  S  2.  The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by chapter 476 of the laws  of  2009,
is amended to read as follows:
  Upon  SENTENCING ON A conviction [of] FOR any offense, where the court
has not issued an order of protection pursuant to section 530.12 of this
article, the court may, in addition to any other disposition,  including
a  conditional  discharge  or  youthful  offender adjudication, enter an
order of protection. Where a temporary order of protection  was  issued,
the court shall state on the record the reasons for issuing or not issu-
ing an order of protection. The duration of such an order shall be fixed
by  the  court  and;  (A)  in the case of a felony conviction, shall not
exceed  the  greater  of:  (i)  eight  years  from  the  date  of   such
[conviction]  SENTENCING,  EXCEPT  WHERE  THE  SENTENCE IS OR INCLUDES A
SENTENCE OF PROBATION ON A CONVICTION FOR A FELONY  SEXUAL  ASSAULT,  AS
DEFINED IN SUBDIVISION THREE OF SECTION 65.00 OF THE PENAL LAW, IN WHICH
CASE,  TEN  YEARS  FROM THE DATE OF SUCH SENTENCING, or (ii) eight years
from the date of the expiration of the maximum term of an  indeterminate
or  the term of a determinate sentence of imprisonment actually imposed;
or (B) in the case of a conviction for a class A misdemeanor, shall  not
exceed the greater of: (i) five years from the date of such [conviction]
SENTENCING,  EXCEPT  WHERE  THE  SENTENCE  IS  OR INCLUDES A SENTENCE OF
PROBATION ON A CONVICTION FOR A CLASS A MISDEMEANOR SEXUAL  ASSAULT,  AS
DEFINED IN SUBDIVISION THREE OF SECTION 65.00 OF THE PENAL LAW, IN WHICH
CASE,  SIX  YEARS  FROM  THE DATE OF SUCH SENTENCING, or (ii) five years
from the date of the expiration of the maximum term  of  a  definite  or
intermittent  term  actually imposed; or (C) in the case of a conviction
for any other offense, shall not exceed the greater of:  (i)  two  years
from  the  date  of  [conviction] SENTENCING, or (ii) two years from the
date of the expiration of the maximum term of a definite or intermittent
term actually imposed.  FOR PURPOSES OF THIS SUBDIVISION ONLY, IN CALCU-
LATING THE EXPIRATION DATE OF THE MAXIMUM TERM OF  AN  INDETERMINATE  OR
THE TERM OF A DETERMINATE SENTENCE OF IMPRISONMENT ACTUALLY IMPOSED, THE
COURT  SHALL  DISREGARD ANY JAIL TIME CREDIT THAT MAY BE APPLIED AGAINST
THE DEFENDANT'S SENTENCE PURSUANT TO SUBDIVISION THREE OF SECTION  70.30
OF  THE PENAL LAW, AND SHALL, IN ADDITION, WITH RESPECT TO A DETERMINATE

S. 888                              3

SENTENCE, CALCULATE THE EXPIRATION DATE OF THE TERM OF SUCH SENTENCE  BY
ADDING  THE  FULL  TERM  OF THE IMPRISONMENT PORTION OF SUCH SENTENCE AS
IMPOSED BY THE COURT AND THE FULL  PERIOD  OF  POST-RELEASE  SUPERVISION
IMPOSED IN ACCORDANCE WITH SUBDIVISION TWO OF SECTION 70.45 OF THE PENAL
LAW.  For purposes of determining the duration of an order of protection
entered pursuant to this subdivision, a conviction shall  be  deemed  to
include a conviction that has been replaced by a youthful offender adju-
dication.  In addition to any other conditions such an order may require
that the defendant:
  S  3.  This  act shall take effect on the thirtieth day after it shall
have become a law and shall  apply  to  all  criminal  actions  whenever
commenced  provided  sentence therein has not been imposed prior to such
effective date; provided, further, that the amendments  to  the  opening
paragraph  of  subdivision 5 of section 530.12 and the opening paragraph
of subdivision 4 of section 530.13 of the criminal procedure law made by
sections one and two of this act shall not affect the expiration of such
paragraphs and shall be deemed to expire therewith.

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