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.