Senate Bill S1510

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

                                  1510

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            January 10, 2011
                               ___________

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

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

  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 DOMESTIC VIOLENCE.
  1.  A  PERSON IS GUILTY OF AGGRAVATED DOMESTIC VIOLENCE WHEN HE OR SHE
COMMITS A SPECIFIED DOMESTIC VIOLENCE OFFENSE AND HE  OR  SHE  HAS  BEEN
CONVICTED OF ONE OR MORE SPECIFIED DOMESTIC VIOLENCE OFFENSES WITHIN THE
IMMEDIATELY  PRECEDING  FIVE YEARS. FOR THE PURPOSES OF THIS SECTION, 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 THE 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 DOMESTIC VIOLENCE OFFENSE" IS  AN  OFFENSE  WHERE  THE
DEFENDANT  AND  THE  PERSON AGAINST WHOM THE OFFENSE IS COMMITTED ARE OR
WERE AT A PREVIOUS TIME MEMBERS OF  THE  SAME  FAMILY  OR  HOUSEHOLD  AS
DEFINED  IN  SUBDIVISION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE
LAW AND WHERE THAT OFFENSE INCLUDES ANY OF THE FOLLOWING  PROVISIONS  OF
THIS  CHAPTER:  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06167-01-1
              

S. 1510                             2

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 (STRANGU-
LATION 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 MISCONDUCT); 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 140.10 (CRIMINAL TRESPASS IN THE THIRD
DEGREE); SECTION  140.15  (CRIMINAL  TRESPASS  IN  THE  SECOND  DEGREE);
SECTION  140.17  (CRIMINAL TRESPASS 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); OR ANY ATTEMPT OR CONSPIRACY TO COMMIT  ANY  OF  THE  FOREGOING
OFFENSES.
  3.  THE PERSON AGAINST WHOM THE SPECIFIED DOMESTIC VIOLENCE OFFENSE IS
COMMITTED MAY BE DIFFERENT FROM THE PERSON AGAINST WHOM  THE  PREVIOUSLY
COMMITTED  SPECIFIED  DOMESTIC  VIOLENCE OFFENSE WAS COMMITTED AND, DOES
NOT NEED TO BE A MEMBER OF THE SAME FAMILY OR HOUSEHOLD.
  AGGRAVATED DOMESTIC VIOLENCE 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  DOMESTIC
           VIOLENCE OFFENDER.
  1. WHENEVER A PERSON IS  CHARGED  WITH  THE  COMMISSION  OR  ATTEMPTED
COMMISSION  OF AGGRAVATED DOMESTIC VIOLENCE 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
AGGRAVATED DOMESTIC VIOLENCE AS DEFINED IN SECTION 240.75 OF  THE  PENAL
LAW,  OR OF A SPECIFIED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN SUBDIVI-
SION TWO OF SECTION 240.75 OF THE PENAL LAW, THAT AT  THE  TIME  OF  THE
PREVIOUS  OFFENSE  OR  AT  AN  EARLIER TIME THE DEFENDANT AND THE PERSON
AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE  SAME  FAMILY

S. 1510                             3

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  ALLEGA-
TIONS THEREIN.
  2.  AT  ANY  TIME BEFORE THE CLOSE OF THE PEOPLE'S CASE, THE COURT, IN
THE ABSENCE OF THE JURY, MUST ARRAIGN THE DEFENDANT UPON  SUCH  INFORMA-
TION  AND  ADVISE  HIM OR HER THAT HE OR SHE MAY ADMIT EACH SUCH ALLEGA-
TION, 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 INFORMATION MUST THEN PROCEED AS FOLLOWS:
  (A)(I) IF THE PREVIOUS CONVICTION IS FOR AGGRAVATED DOMESTIC  VIOLENCE
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, THE
ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED  FOR  ALL
SUBSEQUENT  PURPOSES,  INCLUDING 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 ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE
COURT  MAY  NOT  SUBMIT TO THE JURY ANY LESSER INCLUDED OFFENSE WHICH IS
DISTINGUISHED FROM THE OFFENSE CHARGED  SOLELY  BY  THE  FACT  THAT  THE
PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF.
  (II)  IF  THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE
WITH RESPECT TO IT, THE PEOPLE MAY PROVE 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 DOMESTIC VIOLENCE
OFFENSE  AS  DEFINED  IN  SUBDIVISION TWO OF SECTION 240.75 OF THE PENAL
LAW, AND THE DEFENDANT ADMITS THE  PREVIOUS  CONVICTION,  THAT  IT  TOOK
PLACE  WITHIN  THE  TIME  PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION
240.75 OF THE PENAL LAW, OR THAT THE DEFENDANT AND  THE  PERSON  AGAINST
WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY OR HOUSE-
HOLD  AS  DEFINED  IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER,
THE ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED  ESTABLISHED  FOR
ALL  SUBSEQUENT PURPOSES, INCLUDING 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 ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE
COURT  MAY  NOT  SUBMIT TO THE JURY ANY LESSER INCLUDED OFFENSE WHICH IS
DISTINGUISHED FROM THE OFFENSE CHARGED  SOLELY  BY  THE  FACT  THAT  THE
PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF.
  (II)  IF  THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE
WITH RESPECT TO IT, THE PEOPLE MAY PROVE 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.

S. 1510                             4

  (IV) IF THE DEFENDANT DENIES THAT THE DEFENDANT AND THE PERSON AGAINST
WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY OR HOUSE-
HOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, OR
REMAINS  MUTE  WITH  RESPECT  TO  THAT MATTER, THE PEOPLE MAY PROVE THAT
ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE.
  3.  NOTWITHSTANDING  SUBDIVISION ONE AND SUBPARAGRAPH (I) OF PARAGRAPH
(A) AND SUBPARAGRAPH (I) OF PARAGRAPH (B) OF  SUBDIVISION  TWO  OF  THIS
SECTION  IF EVIDENCE REGARDING THE PRIOR CONVICTION, 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, IS RELEVANT TO HELP PROVE THE  CRIME  OR
CRIMES  CHARGED IN THE INDICTMENT OR INFORMATION, SUCH EVIDENCE SHALL BE
ADMISSIBLE.
  4. A DETERMINATION PURSUANT TO THIS SECTION THAT THE DEFENDANT  HAS  A
PREVIOUS CONVICTION, THAT AT THE TIME OF THE PRIOR 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, OR THAT THE PREVIOUS CONVICTION TOOK PLACE WITH-
IN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF THE
PENAL  LAW, SHALL BE BINDING IN ANY FUTURE PROCEEDING IN WHICH THE ISSUE
MAY ARISE UNLESS THE CONVICTION FOR  THE  AGGRAVATED  DOMESTIC  VIOLENCE
OFFENSE CHARGED IN THE INDICTMENT OR INFORMATION IS VACATED OR REVERSED.
  S  3.  This  act shall take effect on the ninetieth day after it shall
have become a law.