Senate Bill S4155A

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

                                 4155--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             March 12, 2013
                               ___________

Introduced  by  Sen.  LANZA  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

AN  ACT  to  amend  the  penal law, in relation to establishing domestic
  abuse offenses; to amend the criminal procedure law,  in  relation  to
  providing for a special information in the indictment of certain felo-
  ny  domestic  abuse  offenses  and  procedures for determining whether
  domestic abuse  misdemeanors  are  crimes  of  domestic  violence  for
  purposes  of  federal law; and to amend the criminal procedure law and
  the family court act, in relation to including domestic abuse  in  the
  first and second degrees as family offenses

  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
120.75, 120.80 and 120.85 to read as follows:
S 120.75 DEFINITIONS; DOMESTIC ABUSE.
  FOR THE PURPOSES OF SECTIONS 120.80 AND 120.85 OF THIS ARTICLE:
  1.  "DOMESTIC  PARTNER" SHALL MEAN A PERSON WHO IS LIVING OR HAS LIVED
TOGETHER WITH ANOTHER PERSON FOR AN EXTENDED  DURATION  IN  AN  INTIMATE
RELATIONSHIP MARKED BY SEXUAL, PHYSICAL OR FINANCIAL INTERDEPENDENCE.
  2.  "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN A PERSON WHO HAS A
CHILD IN COMMON WITH ANOTHER PERSON REGARDLESS OF WHETHER  SUCH  PERSONS
WERE MARRIED OR HAVE LIVED TOGETHER.
  3.  "FORMER  SPOUSE"  SHALL  MEAN A PERSON FORMERLY MARRIED TO ANOTHER
PERSON REGARDLESS OF WHETHER SUCH  PERSONS  STILL  RESIDE  IN  THE  SAME
HOUSEHOLD.
  4. "SPOUSE" SHALL MEAN A PERSON LEGALLY MARRIED TO ANOTHER PERSON.
S 120.80 DOMESTIC ABUSE IN THE SECOND DEGREE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00816-02-4

              

S. 4155--A                          2

  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,
FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, HE OR SHE CAUSES
PHYSICAL  INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD
IN COMMON OR DOMESTIC PARTNER.
  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.  WITH  INTENT TO CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER
SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC  PARTNER,  HE  OR
SHE CAUSES SUCH INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A
CHILD IN COMMON OR DOMESTIC PARTNER, OR TO A THIRD PERSON; OR
  2.  HE  OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE,
FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR  DOMESTIC  PARTNER;
OR
  3.  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 BY MEANS OF A DEADLY WEAPON OR DANGEROUS INSTRUMENT; OR
  4. HE OR SHE COMMITS A CRIME AGAINST HIS OR HER SPOUSE, FORMER SPOUSE,
FELLOW  PARENT  OF  A CHILD IN COMMON OR DOMESTIC PARTNER, AND HE OR SHE
HAS PREVIOUSLY BEEN CONVICTED OF A CRIME  AGAINST  HIS  OR  HER  SPOUSE,
FORMER  SPOUSE,  FELLOW  PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER
WITHIN THE PRECEDING FIVE YEARS. THE PERSON AGAINST  WHOM  A  CRIME  HAS
BEEN COMMITTED FOR PURPOSES OF CULPABILITY UNDER THIS SUBDIVISION MAY BE
A  DIFFERENT  PERSON THAN WHOM THE PREDICATE CRIME WAS COMMITTED AGAINST
DURING THE PRECEDING FIVE YEARS. FOR PURPOSES OF THIS  SUBDIVISION,  ANY
PERIOD  OF  TIME  DURING  WHICH  THE  DEFENDANT WAS INCARCERATED FOR ANY
REASON BETWEEN THE COMMISSION OF ANY PREVIOUS CRIMES AND THE  COMMISSION
OF THE CRIME IN VIOLATION OF THIS SUBDIVISION SHALL BE EXCLUDED AND SUCH
FIVE  YEAR  PERIOD  SHALL  BE  EXTENDED  BY THE PERIOD OR PERIOD OF TIME
DURING WHICH THE DEFENDANT WAS INCARCERATED.
  DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY.
  S 2. The criminal procedure law is amended by  adding  a  new  section
200.64 to read as follows:
S 200.64 INDICTMENT; SPECIAL INFORMATION FOR DOMESTIC ABUSE OFFENDER.
  1.  WHENEVER  A  PERSON  IS  CHARGED  WITH THE COMMISSION OR ATTEMPTED
COMMISSION OF DOMESTIC ABUSE IN THE FIRST DEGREE AS DEFINED IN  SUBDIVI-
SION  FOUR OF SECTION 120.85 OF THE PENAL LAW, AN INDICTMENT OR INFORMA-
TION FOR SUCH OFFENSE SHALL BE ACCOMPANIED  BY  A  SPECIAL  INFORMATION,
FILED BY THE DISTRICT ATTORNEY WITH THE COURT, ALLEGING THAT THE DEFEND-
ANT  WAS PREVIOUSLY CONVICTED OF A CRIME, THAT AT THE TIME OF THE PREVI-
OUS CRIME OR AT AN EARLIER TIME THE DEFENDANT  WAS  THE  SPOUSE,  FORMER
SPOUSE,  FELLOW  PARENT  OF  A  CHILD  IN COMMON OR DOMESTIC PARTNER, AS
DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH  CRIME,
AND  THAT  SUCH  PREVIOUS  CONVICTION  TOOK PLACE WITHIN THE TIME PERIOD
SPECIFIED IN SUBDIVISION FOUR  OF  SECTION  120.85  OF  THE  PENAL  LAW.
EXCEPT  AS  PROVIDED  IN  THIS SECTION, THE PEOPLE MAY NOT REFER TO SUCH
SPECIAL INFORMATION DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING  THE
ALLEGATIONS 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:

S. 4155--A                          3

  (A) (I) IF THE PREVIOUS CONVICTION IS OF DOMESTIC ABUSE IN THE  SECOND
DEGREE  AS DEFINED BY SECTION 120.80 OF THE PENAL LAW, AND THE DEFENDANT
ADMITS THE PREVIOUS CONVICTION OR THAT IT TOOK  PLACE  WITHIN  THE  TIME
PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 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 FOUR OF SECTION 120.85
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 CRIME OTHER THAN DOMESTIC
ABUSE IN THE SECOND DEGREE AS DEFINED BY SECTION  120.80  OF  THE  PENAL
LAW,  AND  THE  DEFENDANT  ADMITS  THE PREVIOUS CONVICTION, THAT IT TOOK
PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION  FOUR  OF  SECTION
120.85  OF  THE  PENAL LAW, OR THAT THE DEFENDANT WAS THE SPOUSE, FORMER
SPOUSE, FELLOW PARENT OF A  CHILD  IN  COMMON  OR  DOMESTIC  PARTNER  AS
DEFINED  IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH CRIME,
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 FOUR OF  SECTION  120.85
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 WAS THE SPOUSE, FORMER
SPOUSE, FELLOW PARENT OF A  CHILD  IN  COMMON  OR  DOMESTIC  PARTNER  AS
DEFINED  IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH PREVI-
OUS CRIME, 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 WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR
DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL  LAW  OF  THE
VICTIM  OF  SUCH  PREVIOUS CRIME, IS RELEVANT TO HELP PROVE THE CRIME OR

S. 4155--A                          4

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
WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A  CHILD  IN  COMMON  OR
DOMESTIC  PARTNER  AS  DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE
VICTIM OF SUCH PREVIOUS CRIME, OR  THAT  THE  PREVIOUS  CONVICTION  TOOK
PLACE  WITHIN  THE  TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION
120.85 OF THE PENAL LAW, SHALL BE BINDING IN ANY  FUTURE  PROCEEDING  IN
WHICH  THE  ISSUE MAY ARISE UNLESS THE CONVICTION FOR THE DOMESTIC ABUSE
OFFENSE CHARGED IN THE INDICTMENT OR INFORMATION IS VACATED OR REVERSED.
  S 3. Subdivision 1 of section 370.15 of the criminal procedure law, as
added by chapter 258 of the laws of 2011, is amended to read as follows:
  1. When a defendant has been charged with assault or attempted assault
in the third degree as defined in sections  120.00  and  110.00  of  the
penal  law,  menacing  or  attempted  menacing  in  the second degree as
defined in sections 120.14 and 110.00 of the penal law,  DOMESTIC  ABUSE
OR  ATTEMPTED DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED IN SECTIONS
120.80 AND 110.00 OF THE PENAL LAW, criminal obstruction of breathing or
blood circulation or attempted  criminal  obstruction  of  breathing  or
blood  circulation as defined in sections 121.11 and 110.00 of the penal
law, or forcible touching or attempted forcible touching as  defined  in
sections 130.52 and 110.00 of the penal law, the people may, at arraign-
ment or no later than forty-five days after arraignment, for the purpose
of notification to the division of criminal justice services pursuant to
section  380.97  of  this part, serve on the defendant and file with the
court a notice alleging that the defendant is related or situated to the
victim  of  the  crime  in   the   manner   specified   in   18   U.S.C.
921(a)(33)(A)(ii).
  S 4. Section 380.97 of the criminal procedure law, as added by chapter
258 of the laws of 2011, is amended to read as follows:
S 380.97 Notification to division of criminal justice services of deter-
             minations in certain misdemeanor cases.
  Upon  judgment  of  conviction  of assault or attempted assault in the
third degree, as defined in sections 120.00 and 110.00 of the penal law,
menacing or attempted menacing in  the  second  degree,  as  defined  in
section  120.14 and 110.00 of the penal law, DOMESTIC ABUSE OR ATTEMPTED
DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED IN  SECTIONS  120.80  AND
110.00  OF  THE  PENAL  LAW,  criminal obstruction of breathing or blood
circulation or attempted criminal  obstruction  of  breathing  or  blood
circulation,  as defined in sections 121.11 and 110.00 of the penal law,
forcible touching or attempted forcible touching, as defined in sections
130.52 and 110.00 of the penal law, when the defendant has  been  deter-
mined,  pursuant  to section 370.15 of this part, to be related or situ-
ated to the victim of the offense in the manner specified in  18  U.S.C.
921(a)(33)(A)(ii), the clerk of the court shall include notification and
a  copy  of  the written determination in a report of such conviction to
the division of criminal justice services  to  enable  the  division  to
report  such  determination  to  the federal bureau of investigation and
assist the bureau in identifying persons prohibited from purchasing  and
possessing a firearm pursuant to the provisions of 18 U.S.C. 922.
  S  5.  The opening paragraph of subdivision 1 of section 530.11 of the
criminal procedure law, as amended by chapter 526 of the laws  of  2013,
is amended to read as follows:
  The  family court and the criminal courts shall have concurrent juris-
diction over any  proceeding  concerning  acts  which  would  constitute

S. 4155--A                          5

disorderly  conduct,  harassment  in the first degree, harassment in the
second degree, aggravated harassment  in  the  second  degree,  DOMESTIC
ABUSE  IN  THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND DEGREE, sexual
misconduct,  forcible touching, sexual abuse in the third degree, sexual
abuse in the second degree as set forth in subdivision  one  of  section
130.60  of  the penal law, stalking in the first degree, stalking in the
second degree, stalking in the third  degree,  stalking  in  the  fourth
degree,  criminal  mischief,  menacing in the second degree, menacing in
the third degree, reckless  endangerment,  strangulation  in  the  first
degree,  strangulation  in  the  second  degree, criminal obstruction of
breathing or blood circulation, assault in the second degree, assault in
the third degree, an attempted assault,  identity  theft  in  the  first
degree, identity theft in the second degree, identity theft in the third
degree,  grand  larceny in the fourth degree, grand larceny in the third
degree or coercion in the second degree as  set  forth  in  subdivisions
one, two and three of section 135.60 of the penal law between spouses or
former  spouses,  or  between parent and child or between members of the
same family or household except that if  the  respondent  would  not  be
criminally responsible by reason of age pursuant to section 30.00 of the
penal  law, then the family court shall have exclusive jurisdiction over
such proceeding. Notwithstanding a complainant's election to proceed  in
family  court,  the criminal court shall not be divested of jurisdiction
to hear a family  offense  proceeding  pursuant  to  this  section.  For
purposes  of  this  section,  "disorderly  conduct"  includes disorderly
conduct not in a public place. For purposes of this section, "members of
the same family or household" with respect to a proceeding in the crimi-
nal courts shall mean the following:
  S 6. The opening paragraph of subdivision 1  of  section  812  of  the
family  court  act,  as  amended  by chapter 526 of the laws of 2013, is
amended to read as follows:
  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute
disorderly conduct, harassment in the first degree,  harassment  in  the
second  degree,  aggravated  harassment  in  the second degree, DOMESTIC
ABUSE IN THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND  DEGREE,  sexual
misconduct,  forcible touching, sexual abuse in the third degree, sexual
abuse in the second degree as set forth in subdivision  one  of  section
130.60  of  the penal law, stalking in the first degree, stalking in the
second degree, stalking in the third  degree,  stalking  in  the  fourth
degree,  criminal  mischief,  menacing in the second degree, menacing in
the third degree, reckless endangerment, criminal obstruction of breath-
ing or blood circulation, strangulation in the second degree, strangula-
tion in the first degree, assault in the second degree, assault  in  the
third  degree, an attempted assault, identity theft in the first degree,
identity theft in the second degree, identity theft in the third degree,
grand larceny in the fourth degree, grand larceny in the third degree or
coercion in the second degree as set forth in subdivisions one, two  and
three  of  section  135.60  of  the  penal law between spouses or former
spouses, or between parent and child or  between  members  of  the  same
family or household except that if the respondent would not be criminal-
ly  responsible  by reason of age pursuant to section 30.00 of the penal
law, then the family court shall have exclusive jurisdiction  over  such
proceeding. Notwithstanding a complainant's election to proceed in fami-
ly  court,  the  criminal court shall not be divested of jurisdiction to
hear a family offense  proceeding  pursuant  to  this  section.  In  any
proceeding  pursuant to this article, a court shall not deny an order of

S. 4155--A                          6

protection, or dismiss a petition, solely on the basis that the acts  or
events  alleged  are not relatively contemporaneous with the date of the
petition, the conclusion of the fact-finding or the  conclusion  of  the
dispositional   hearing.  For  purposes  of  this  article,  "disorderly
conduct" includes disorderly conduct not in a public place. For purposes
of this article, "members of the same family or  household"  shall  mean
the following:
  S 7. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.