S T A T E   O F   N E W   Y O R K
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                                  3458

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                            January 25, 2011
                               ___________

Introduced  by  M.  of  A. GABRYSZAK, WEISENBERG, MARKEY, COLTON, SPANO,
  TITONE, CASTRO, HOOPER -- Multi-Sponsored  by  --  M.  of  A.  ABBATE,
  BOYLAND,  BURLING,  CALHOUN,  CONTE, DESTITO, GIBSON, GIGLIO, GUNTHER,
  MAYERSOHN, MOLINARO, MURRAY, RAIA, TOBACCO -- read once  and  referred
  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,

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

A. 3458                             2

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:
  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

A. 3458                             3

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
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.