S T A T E O F N E W Y O R K
________________________________________________________________________
1986--B
2011-2012 Regular Sessions
I N A S S E M B L Y
January 12, 2011
___________
Introduced by M. of A. ROSENTHAL, BING, SCHIMEL, MAISEL, GUNTHER, SCAR-
BOROUGH, BRONSON, MOYA, MILLMAN, SPANO, ORTIZ, GIBSON, STEVENSON,
ROBERTS, WEISENBERG, PAULIN, LAVINE, GABRYSZAK, WEPRIN, COOK, CASTRO,
TITUS -- Multi-Sponsored by -- M. of A. ABBATE, CALHOUN, CERETTO,
CROUCH, DUPREY, GALEF, GLICK, LOSQUADRO, MARKEY, McKEVITT, MOLINARO,
PERRY, RAIA, RAMOS, P. RIVERA, SWEENEY, THIELE, ZEBROWSKI -- read once
and referred to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted 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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06167-16-1
A. 1986--B 2
(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
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
A. 1986--B 3
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.
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
A. 1986--B 4
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.