S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6060
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 23, 2017
                                ___________
 
 Introduced  by M. of A. CRESPO -- Multi-Sponsored by -- M. of A. ARROYO,
   AUBRY, BARRON, COOK, CROUCH, LOPEZ,  McDONOUGH,  MOYA,  PERRY,  RAMOS,
   RIVERA,  RODRIGUEZ,  WEPRIN -- read once and referred to the Committee
   on Judiciary
 
 AN ACT to amend the family court act and the criminal procedure law,  in
   relation  to  requiring  the service of temporary orders of protection
   and orders of protection upon the attorney representing the respondent
   or defendant
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1. Section 154-d of the family court act, as added by chapter
 186 of the laws of 1997, is amended to read as follows:
   § 154-d. Emergency powers;  local  criminal  courts.  1.  Issuance  of
 temporary  orders  of  protection. Upon the request of the petitioner, a
 local criminal court may on an ex parte basis issue a temporary order of
 protection pending a hearing in family  court,  provided  that  a  sworn
 affidavit,  certified  in  accordance  with  subdivision  one of section
 100.30 of the criminal procedure law is submitted: (i) alleging that the
 family court is not in session; (ii) alleging that a family offense,  as
 defined  in  subdivision one of section eight hundred twelve of this act
 or subdivision one of section 530.11 of the criminal procedure law,  has
 been  committed;  (iii) alleging that a family offense petition has been
 filed or will be filed in family court on the next day the court  is  in
 session;  and (iv) showing good cause. Upon appearance in a local crimi-
 nal court, the petitioner shall be advised that he or she  may  continue
 with  the  proceeding  either  in  family court or, upon the filing of a
 local criminal court accusatory instrument, in criminal court  or  both.
 Upon  issuance  of  a  temporary  order  of  protection where petitioner
 requests that it be returnable in family court, the local criminal court
 shall transfer the matter forthwith to the family court and  shall  make
 the  matter  returnable in family court on the next day the family court
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08358-01-7

 A. 6060                             2
 
 is in session, or as soon thereafter as practicable,  but  in  no  event
 more  than  four  calendar  days  after issuance of the order. The local
 criminal court, upon issuing a temporary order of protection  returnable
 in  family  court pursuant to this subdivision shall immediately forward
 in a manner designed to ensure arrival before the return date set in the
 order, a copy of the temporary order of protection and  sworn  affidavit
 to  the family court and shall provide a copy of such temporary order of
 protection to the petitioner; provided, however, that if  the  temporary
 order  of protection and affidavit are transmitted by facsimile or other
 electronic means, the original order and affidavit shall be forwarded to
 the family  court  immediately  thereafter.    Any  temporary  order  of
 protection  issued  pursuant  to this subdivision shall be issued to the
 respondent AND THE ATTORNEY  REPRESENTING  THE  RESPONDENT,  and  copies
 shall  be  filed  as  required  in subdivisions six and eight of section
 530.12 of the criminal procedure law for  orders  of  protection  issued
 pursuant  to  such section.  NO ATTORNEY SHALL REFUSE TO ACCEPT ANY SUCH
 ORDER ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY SHALL
 IMMEDIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE  OF  THE
 ORDER  AND  THE  TERMS  OF SUCH ORDER. Any temporary order of protection
 issued pursuant to this subdivision shall plainly state  the  date  that
 such  order  expires which, in the case of an order returnable in family
 court, shall be not more than four calendar  days  after  its  issuance,
 unless  sooner  vacated  or  modified  by the family court. A petitioner
 requesting a temporary order of protection returnable  in  family  court
 pursuant  to this subdivision in a case in which a family court petition
 has not been filed shall  be  informed  that  such  temporary  order  of
 protection  shall  expire  as provided for herein, unless the petitioner
 files a petition pursuant to subdivision one of  section  eight  hundred
 twenty-one  of this act on or before the return date in family court and
 the family court issues a temporary order of  protection  as  authorized
 under article eight of this act. Nothing in this subdivision shall limit
 or restrict the petitioner's right to proceed directly and without court
 referral  in either a criminal or family court, or both, as provided for
 in section one hundred fifteen of this act and  section  100.07  of  the
 criminal procedure law.
   2.  Modifications  of  orders  of  protection  or  temporary orders of
 protection. Upon the request of the petitioner, a local  criminal  court
 may on an ex parte basis modify a temporary order of protection or order
 of  protection  which  has  been issued under article four, five, six or
 eight of this act pending a hearing in family  court,  provided  that  a
 sworn  affidavit, verified in accordance with subdivision one of section
 100.30 of the criminal procedure law, is submitted:  (i)  alleging  that
 the  family court is not in session and (ii) showing good cause, includ-
 ing a showing that the existing order is insufficient for  the  purposes
 of  protection  of the petitioner, the petitioner's child or children or
 other members of the petitioner's family or household. The local  crimi-
 nal  court shall make the matter regarding the modification of the order
 returnable in family court on the  next  day  the  family  court  is  in
 session, or as soon thereafter as practicable, but in no event more than
 four calendar days after issuance of the modified order. The local crim-
 inal  court  shall  immediately  forward, in a manner designed to ensure
 arrival before the return date set in the order, a copy of the  modified
 order if any and sworn affidavit to the family court and shall provide a
 copy  of  such  modified order, if any, and affidavit to the petitioner;
 provided, however, that if the modified order and affidavit  are  trans-
 mitted  to  the family court by facsimile or other electronic means, the

 A. 6060                             3
 
 original copy of such modified order and affidavit shall be forwarded to
 the family court immediately thereafter. Any modified temporary order of
 protection or order of protection issued pursuant  to  this  subdivision
 shall  be  issued  to  the  respondent AND THE ATTORNEY REPRESENTING THE
 RESPONDENT, and copies shall be filed as provided  in  subdivisions  six
 and  eight of section 530.12 of the criminal procedure law for orders of
 protection issued pursuant to such section.  NO ATTORNEY SHALL REFUSE TO
 ACCEPT ANY SUCH ORDER ADDRESSED TO HIS OR  HER  RESPONDENT  CLIENT,  AND
 SUCH  ATTORNEY  SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF
 THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER.
   § 2. Subdivision 1 of section 168 of the family court act, as  amended
 by chapter 416 of the laws of 1981, is amended to read as follows:
   1.  In  any case in which an order of protection or temporary order of
 protection has been made by the family court, the  clerk  of  the  court
 shall  issue  a  copy  of  such  order  to  the  petitioner  [and],  THE
 respondent, THE ATTORNEY REPRESENTING THE RESPONDENT and  to  any  other
 person  affected  by  the  order. NO ATTORNEY SHALL REFUSE TO ACCEPT ANY
 SUCH ORDER ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH  ATTORNEY
 SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE OF
 THE  ORDER AND THE TERMS OF SUCH ORDER. The presentation of a copy of an
 order of protection or temporary order of protection or a warrant  or  a
 certificate  of  warrant to any peace officer, acting pursuant to his OR
 HER special duties, or police officer shall constitute authority for him
 OR HER to arrest a person charged with violating the terms of such order
 of protection or temporary order of protection  and  bring  such  person
 before the court and, otherwise, so far as lies within his OR HER power,
 to  aid  in  securing  the protection such order was intended to afford,
 provided, however, that any outstanding, unexpired certificate of  order
 of protection or temporary order of protection shall have the same force
 and effect as a copy of such order or temporary order.
   §  3.  Subdivisions  3-a,  3-b and 8 of section 530.12 of the criminal
 procedure law, subdivisions 3-a and 3-b as added by chapter 186  of  the
 laws  of 1997 and subdivision 8 as amended by chapter 480 of the laws of
 2013, are amended to read as follows:
   3-a. Emergency powers when family court not in  session;  issuance  of
 temporary  orders  of  protection. Upon the request of the petitioner, a
 local criminal court may on an ex parte basis issue a temporary order of
 protection pending a hearing in family  court,  provided  that  a  sworn
 affidavit, verified in accordance with subdivision one of section 100.30
 of this chapter, is submitted: (i) alleging that the family court is not
 in  session; (ii) alleging that a family offense, as defined in subdivi-
 sion one of section eight hundred twelve of the  family  court  act  and
 subdivision  one  of section 530.11 of this article, has been committed;
 (iii) alleging that a family offense petition has been filed or will  be
 filed  in family court on the next day the court is in session; and (iv)
 showing good cause. Upon appearance in a local criminal court, the peti-
 tioner shall be advised that he or she may continue with the  proceeding
 either  in  family  court  or  upon the filing of a local criminal court
 accusatory instrument in criminal court or  both.  Upon  issuance  of  a
 temporary  order  of  protection  where  petitioner  requests that it be
 returnable in family court, the local criminal court shall transfer  the
 matter  forthwith  to the family court and shall make the matter return-
 able in family court on the next day the family court is in session,  or
 as soon thereafter as practicable, but in no event more than four calen-
 dar  days  after  issuance  of the order. The local criminal court, upon
 issuing a temporary order  of  protection  returnable  in  family  court

 A. 6060                             4
 
 pursuant  to  this  subdivision,  shall immediately forward, in a manner
 designed to insure arrival before the return date set in  the  order,  a
 copy  of  the  temporary  order of protection and sworn affidavit to the
 family  court  and  shall  provide  a  copy  of  such temporary order of
 protection to the petitioner; provided, however, that where  a  copy  of
 the  temporary  order of protection and affidavit are transmitted to the
 family court by facsimile or other electronic means, the original  order
 and  affidavit shall be forwarded to the family court immediately there-
 after. Any temporary order of protection issued pursuant to this  subdi-
 vision  shall  be issued to the respondent AND THE ATTORNEY REPRESENTING
 THE RESPONDENT, and copies shall be filed as  required  in  subdivisions
 six  and  eight of this section for orders of protection issued pursuant
 to this section.   NO ATTORNEY SHALL REFUSE TO  ACCEPT  ANY  SUCH  ORDER
 ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY SHALL IMME-
 DIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE OF THE ORDER
 AND  THE  TERMS  OF SUCH ORDER. Any temporary order of protection issued
 pursuant to this subdivision shall plainly  state  the  date  that  such
 order expires which, in the case of an order returnable in family court,
 shall  be  not  more  than four calendar days after its issuance, unless
 sooner vacated or modified by the family court. A petitioner  requesting
 a  temporary  order of protection returnable in family court pursuant to
 this subdivision in a case in which a family court petition has not been
 filed shall be informed that such temporary order  of  protection  shall
 expire  as  provided  for herein, unless the petitioner files a petition
 pursuant to subdivision one of section eight hundred twenty-one  of  the
 family  court  act  on or before the return date in family court and the
 family court  issues  a  temporary  order  of  protection  or  order  of
 protection  as  authorized  under article eight of the family court act.
 Nothing in this subdivision shall limit  or  restrict  the  petitioner's
 right  to proceed directly and without court referral in either a crimi-
 nal or family court, or both, as provided for  in  section  one  hundred
 fifteen of the family court act and section 100.07 of this chapter.
   3-b.  Emergency powers when family court not in session; modifications
 of orders of protection or temporary  orders  of  protection.  Upon  the
 request  of  the  petitioner,  a local criminal court may on an ex parte
 basis modify a temporary order of  protection  or  order  of  protection
 which  has  been  issued  under  article four, five, six or eight of the
 family court act pending a hearing in  family  court,  provided  that  a
 sworn  affidavit  verified in accordance with subdivision one of section
 100.30 of this chapter is submitted: (i) alleging that the family  court
 is  not in session and (ii) showing good cause, including a showing that
 the existing order is insufficient for the purposes of protection of the
 petitioner, the petitioner's child or children or other members  of  the
 petitioner's  family  or  household. The local criminal court shall make
 the matter regarding the modification of the order returnable in  family
 court  on the next day the family court is in session, or as soon there-
 after as practicable, but in no event more than four calendar days after
 issuance of the modified order. The court shall  immediately  forward  a
 copy  of  the  modified order, if any, and sworn affidavit to the family
 court and shall provide a copy of such modified order, if any, and affi-
 davit to the petitioner; provided, however, that where  copies  of  such
 modified  order  and  affidavit  are  transmitted to the family court by
 facsimile or other electronic means, the original copies of  such  modi-
 fied  order  and  affidavit shall be forwarded to the family court imme-
 diately thereafter. Any modified temporary order of protection or  order
 of protection issued pursuant to this subdivision shall be issued to the

 A. 6060                             5
 
 respondent AND THE ATTORNEY REPRESENTING THE RESPONDENT and copies shall
 be  filed  as required in subdivisions six and eight of this section for
 orders of protection issued pursuant to this section.  NO ATTORNEY SHALL
 REFUSE  TO  ACCEPT  ANY  SUCH  ORDER  ADDRESSED TO HIS OR HER RESPONDENT
 CLIENT, AND SUCH ATTORNEY SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER
 CLIENT OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER.
   8. In any proceeding in which an  order  of  protection  or  temporary
 order of protection or a warrant has been issued under this section, the
 clerk  of  the  court  shall  issue to the complainant and defendant and
 defense counsel and to any other person affected by the order a copy  of
 the order of protection or temporary order of protection and ensure that
 a  copy  of  the order of protection or temporary order of protection be
 transmitted to the local correctional facility where the  individual  is
 or  will be detained, the state or local correctional facility where the
 individual is or will  be  imprisoned,  and  the  supervising  probation
 department  or department of corrections and community supervision where
 the individual is under probation or parole  supervision.    NO  DEFENSE
 COUNSEL  SHALL  REFUSE  TO ACCEPT ANY SUCH ORDER ADDRESSED TO HIS OR HER
 CLIENT, AND SUCH COUNSEL SHALL IMMEDIATELY PROVIDE NOTICE TO THE DEFEND-
 ANT OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER. The  pres-
 entation  of  a  copy  of  such  order or a warrant to any peace officer
 acting pursuant to his or her special duties  or  police  officer  shall
 constitute  authority for him or her to arrest a person who has violated
 the terms of such order and bring such  person  before  the  court  and,
 otherwise,  so  far  as lies within his or her power, to aid in securing
 the protection such order was intended to afford. The protected party in
 whose favor the order of protection or temporary order of protection  is
 issued  may  not  be held to violate an order issued in his or her favor
 nor may such protected party be arrested for violating such order.
   § 4. Subdivision 6 of section 530.13 of the criminal procedure law, as
 amended by section 82 of subpart B of part C of chapter 62 of  the  laws
 of 2011, is amended to read as follows:
   6.  In  any  proceeding  in  which an order of protection or temporary
 order of protection or a warrant has been issued under this section, the
 clerk of the court shall issue to  the  victim  and  the  defendant  and
 defense counsel and to any other person affected by the order, a copy of
 the order of protection or temporary order of protection and ensure that
 a  copy  of  the order of protection or temporary order of protection be
 transmitted to the local correctional facility where the  individual  is
 or  will be detained, the state or local correctional facility where the
 individual is or will  be  imprisoned,  and  the  supervising  probation
 department  or department of corrections and community supervision where
 the individual is under probation or parole  supervision.    NO  DEFENSE
 COUNSEL  SHALL  REFUSE  TO ACCEPT ANY SUCH ORDER ADDRESSED TO HIS OR HER
 CLIENT, AND SUCH COUNSEL SHALL IMMEDIATELY PROVIDE NOTICE TO THE DEFEND-
 ANT OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER. The  pres-
 entation  of  a copy of such order or a warrant to any police officer or
 peace officer acting pursuant to his or her special duties shall consti-
 tute authority for him or her to arrest a person who  has  violated  the
 terms  of  such order and bring such person before the court and, other-
 wise, so far as lies within his or her power, to  aid  in  securing  the
 protection such order was intended to afford.
   § 5. This act shall take effect  on the first of October next succeed-
 ing the date on which it shall have become a law.