S T A T E O F N E W Y O R K
________________________________________________________________________
7208
2013-2014 Regular Sessions
I N A S S E M B L Y
May 7, 2013
___________
Introduced by M. of A. GJONAJ -- read once and referred to the Committee
on Codes
AN ACT to amend the criminal procedure law and the family court act, in
relation to the allowing for lifetime orders of protection for aggra-
vating circumstances
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The opening paragraph of subdivision 5 of section 530.12 of
the criminal procedure law, as amended by section 1 of chapter 9 of the
laws of 2011, is amended to read as follows:
Upon sentencing on a conviction for any crime or violation between
spouses, between a parent and child, or between members of the same
family or household as defined in subdivision one of section 530.11 of
this article, the court may in addition to any other disposition,
including a conditional discharge or youthful offender adjudication,
enter an order of protection. Where a temporary order of protection was
issued, the court shall state on the record the reasons for issuing or
not issuing an order of protection. The duration of such an order shall
be fixed by the court and: (A) in the case of a felony conviction, shall
not exceed the greater of: (i) eight years from the date of such
sentencing, 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 (B) in the case of a conviction for
a class A misdemeanor, shall not exceed the greater of: (i) five years
from the date of such sentencing, or (ii) five years from the date of
the expiration of the maximum term of a definite or intermittent term
actually imposed; or (C) in the case of a conviction for any other
offense, shall not exceed the greater of: (i) two years from the date of
sentencing, or (ii) two years from the date of the expiration of the
maximum term of a definite or intermittent term actually imposed. For
purposes of determining the duration of an order of protection entered
pursuant to this subdivision, a conviction shall be deemed to include a
conviction that has been replaced by a youthful offender adjudication.
IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVI-
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10380-03-3
A. 7208 2
SION FIVE-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF
PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS
SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF PROTECTION. THE
COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE
ORDER OF PROTECTION. In addition to any other conditions, such an order
may require the defendant:
S 2. The opening paragraph of subdivision 5 of section 530.12 of the
criminal procedure law, as amended by section 2 of chapter 9 of the laws
of 2011, is amended to read as follows:
Upon sentencing on a conviction for any crime or violation between
spouses, between a parent and child, or between members of the same
family or household as defined in subdivision one of section 530.11 of
this article, the court may in addition to any other disposition,
including a conditional discharge or youthful offender adjudication,
enter an order of protection. Where a temporary order of protection was
issued, the court shall state on the record the reasons for issuing or
not issuing an order of protection. The duration of such an order shall
be fixed by the court and, in the case of a felony conviction, shall not
exceed the greater of: (i) five years from the date of such sentencing,
or (ii) three years from the date of the expiration of the maximum term
of an indeterminate sentence of imprisonment actually imposed; or in the
case of a conviction for a class A misdemeanor, shall not exceed three
years from the date of such sentencing; or in the case of a conviction
for any other offense, shall not exceed one year from the date of
sentencing. For purposes of determining the duration of an order of
protection entered pursuant to this subdivision, a conviction shall be
deemed to include a conviction that has been replaced by a youthful
offender adjudication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES
AS DEFINED IN SUBDIVISION FIVE-A OF THIS SECTION EXIST, THE COURT MAY
ENTER AN ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE
RELEVANT TERMS SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF
PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE
STATED UPON THE ORDER OF PROTECTION. In addition to any other condi-
tions, such an order may require the defendant:
S 3. Section 530.12 of the criminal procedure law is amended by adding
a new subdivision 5-a to read as follows:
5-A. FOR THE PURPOSES OF SUBDIVISION FIVE OF THIS SECTION, "AGGRAVAT-
ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJU-
RY TO THE COMPLAINANT CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS
INSTRUMENT AGAINST THE COMPLAINANT BY THE DEFENDANT, A HISTORY OF
REPEATED VIOLATIONS OF PRIOR ORDERS OF PROTECTION BY THE DEFENDANT,
PRIOR CONVICTIONS FOR CRIMES AGAINST THE COMPLAINANT BY THE DEFENDANT OR
THE EXPOSURE OF ANY FAMILY OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE
DEFENDANT, AND LIKE INCIDENTS, BEHAVIORS, AND OCCURRENCES WHICH THE
COURT DETERMINES, AFTER A HEARING, CONSTITUTE AN IMMEDIATE AND ONGOING
DANGER TO THE COMPLAINANT OR ANY MEMBER OF THE COMPLAINANT'S FAMILY OR
HOUSEHOLD. AFTER A DISPOSITIONAL HEARING IS HELD AND THE COURT FINDS BY
A FAIR PREPONDERANCE OF THE EVIDENCE THAT AGGRAVATING CIRCUMSTANCES
EXIST, THE COURT MAY ISSUE AN ORDER OF PROTECTION FOR UP TO THE LIFETIME
OF THE VICTIM, THE VICTIM'S FAMILY, OR MEMBERS OF THE VICTIM'S HOUSE-
HOLD.
S 4. The closing paragraph of subdivision 6 of section 530.12 of the
criminal procedure law, as added by chapter 222 of the laws of 1994, is
amended to read as follows:
[Such] WHEN AN ORDER OF PROTECTION IS OF FIXED DURATION, THE order of
protection shall plainly state the date that such order expires, AND
A. 7208 3
WHERE THE ORDER IS OF LIFETIME DURATION, THE ORDER SHALL CLEARLY SO
STATE.
S 5. The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by section 3 of chapter 9 of the laws
of 2011, is amended to read as follows:
Upon sentencing on a conviction for any offense, where the court has
not issued an order of protection pursuant to section 530.12 of this
article, the court may, in addition to any other disposition, including
a conditional discharge or youthful offender adjudication, enter an
order of protection. Where a temporary order of protection was issued,
the court shall state on the record the reasons for issuing or not issu-
ing an order of protection. The duration of such an order shall be fixed
by the court and; (A) in the case of a felony conviction, shall not
exceed the greater of: (i) eight years from the date of such sentencing,
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 imprison-
ment actually imposed; or (B) in the case of a conviction for a class A
misdemeanor, shall not exceed the greater of: (i) five years from the
date of such sentencing, or (ii) five years from the date of the expira-
tion of the maximum term of a definite or intermittent term actually
imposed; or (C) in the case of a conviction for any other offense, shall
not exceed the greater of: (i) two years from the date of sentencing, or
(ii) two years from the date of the expiration of the maximum term of a
definite or intermittent term actually imposed. For purposes of deter-
mining the duration of an order of protection entered pursuant to this
subdivision, a conviction shall be deemed to include a conviction that
has been replaced by a youthful offender adjudication. IF THE COURT
FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED IN SUBDIVISION FOUR-A OF
THIS SECTION EXIST, THE COURT MAY ENTER AN ORDER OF PROTECTION FOR A
FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT TERMS SET FORTH ABOVE, OR
MAY ENTER UP TO A LIFETIME ORDER OF PROTECTION. THE COURT'S FINDING OF
AGGRAVATING CIRCUMSTANCES SHALL BE STATED UPON THE ORDER OF PROTECTION.
In addition to any other conditions such an order may require that the
defendant:
S 6. The opening paragraph of subdivision 4 of section 530.13 of the
criminal procedure law, as amended by section 4 of chapter 9 of the laws
of 2011, is amended to read as follows:
Upon sentencing on a conviction for any offense, where the court has
not issued an order of protection pursuant to section 530.12 of this
article, the court may, in addition to any other disposition, including
a conditional discharge or youthful offender adjudication, enter an
order of protection. Where a temporary order of protection was issued,
the court shall state on the record the reasons for issuing or not issu-
ing an order of protection. The duration of such an order shall be fixed
by the court and, in the case of a felony conviction, shall not exceed
the greater of: (i) five years from the date of such sentencing, or (ii)
three years from the date of the expiration of the maximum term of an
indeterminate sentence of imprisonment actually imposed; or in the case
of a conviction for a class A misdemeanor, shall not exceed three years
from the date of such sentencing; or in the case of a conviction for any
other offense, shall not exceed one year from the date of sentencing.
For purposes of determining the duration of an order of protection
entered pursuant to this subdivision, a conviction shall be deemed to
include a conviction that has been replaced by a youthful offender adju-
dication. IF THE COURT FINDS THAT AGGRAVATING CIRCUMSTANCES AS DEFINED
IN SUBDIVISION FOUR-A OF THIS SECTION EXIST, THE COURT MAY ENTER AN
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ORDER OF PROTECTION FOR A FIXED PERIOD OF TIME IN EXCESS OF THE RELEVANT
TERMS SET FORTH ABOVE, OR MAY ENTER UP TO A LIFETIME ORDER OF
PROTECTION. THE COURT'S FINDING OF AGGRAVATING CIRCUMSTANCES SHALL BE
STATED UPON THE ORDER OF PROTECTION. In addition to any other conditions
such an order may require that the defendant:
S 7. Section 530.13 of the criminal procedure law is amended by adding
a new subdivision 4-a to read as follows:
4-A. FOR THE PURPOSES OF SUBDIVISION FOUR OF THIS SECTION, "AGGRAVAT-
ING CIRCUMSTANCES" SHALL MEAN PHYSICAL INJURY OR SERIOUS PHYSICAL INJURY
TO THE VICTIM CAUSED BY THE DEFENDANT, THE USE OF A DANGEROUS INSTRUMENT
AGAINST THE VICTIM BY THE DEFENDANT, A HISTORY OF REPEATED VIOLATIONS OF
PRIOR ORDERS OF PROTECTION BY THE DEFENDANT, PRIOR CONVICTIONS FOR
CRIMES AGAINST THE VICTIM BY THE DEFENDANT OR THE EXPOSURE OF ANY FAMILY
OR HOUSEHOLD MEMBER TO PHYSICAL INJURY BY THE DEFENDANT, AND LIKE INCI-
DENTS, BEHAVIORS, AND OCCURRENCES WHICH THE COURT DETERMINES, AFTER A
HEARING, CONSTITUTE AN IMMEDIATE AND ONGOING DANGER TO THE VICTIM, OR
ANY MEMBER OF THE VICTIM'S FAMILY OR HOUSEHOLD. AFTER A DISPOSITIONAL
HEARING IS HELD AND THE COURT FINDS BY A FAIR PREPONDERANCE OF THE
EVIDENCE THAT AGGRAVATING CIRCUMSTANCES EXIST, THE COURT MAY ISSUE AN
ORDER OF PROTECTION FOR UP TO THE LIFETIME OF THE VICTIM, THE VICTIM'S
FAMILY, OR MEMBERS OF THE VICTIM'S HOUSEHOLD.
S 8. The opening paragraph of section 842 of the family court act, as
separately amended by chapters 325 and 341 of the laws of 2010, is
amended to read as follows:
An order of protection under section eight hundred forty-one of this
part shall set forth reasonable conditions of behavior to be observed
for a period not in excess of two years by the petitioner or respondent
or [for a period not in excess of five years] UP TO A LIFETIME ORDER OF
PROTECTION upon (i) a finding by the court on the record of the exist-
ence of aggravating circumstances as defined in paragraph (vii) of
subdivision (a) of section eight hundred twenty-seven of this article or
(ii) a finding by the court on the record that the conduct alleged in
the petition is in violation of a valid order of protection. Any finding
of aggravating circumstances pursuant to this section shall be stated on
the record and upon the order of protection. The court may also, upon
motion, extend the order of protection for a reasonable period of time
upon a showing of good cause or consent of the parties. The fact that
abuse has not occurred during the pendency of an order shall not, in
itself, constitute sufficient ground for denying or failing to extend
the order. The court must articulate a basis for its decision on the
record. The duration of any temporary order shall not by itself be a
factor in determining the length or issuance of any final order. Any
order of protection issued pursuant to this section shall specify if an
order of probation is in effect. Any order of protection issued pursuant
to this section may require the petitioner or the respondent:
S 9. This act shall take effect immediately provided that the amend-
ments to the opening paragraph of subdivision 5 of section 530.12 and
the opening paragraph of subdivision 4 of section 530.13 of the criminal
procedure law made by sections one and five of this act respectively,
shall be subject to the expiration and reversion of such paragraphs,
when upon such date the provisions of sections two and six of this act
shall take effect.