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A01797 Summary:

BILL NOA01797A
 
SAME ASSAME AS S04340-B
 
SPONSORPaulin
 
COSPNSRGalef, Dinowitz, Cook, Benedetto, Jaffee, Titus, Weprin, Otis, Linares
 
MLTSPNSRPerry
 
Amd SS530.12 & 530.13, CP L
 
Provides clarification on determining the expiration date of an order of protection issued in relation to a family offense.
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A01797 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A1797A
 
SPONSOR: Paulin (MS)
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to determining the expiration date of an order of protection   PURPOSE OF BILL: This bill would amend certain sections of the criminal procedure law with respect to the duration of orders of protection issued in relation to a family offense.   SUMMARY OF SPECIFIC PROVISIONS: Section one amends 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, to provide that in the case of a felony conviction, where the sentence is or includes a sentence of probation on a conviction for a felony sexual assault, as provided in subparagraph (iii) of paragraph (a) of subdivision three of section 65.00 of the penal law, the court shall fix the duration of an order of protection at ten years from the date of such sentencing. In the case of a conviction for a misdemeanor, where the sentence is or includes a sentence of probation on a conviction for a misdemeanor sexual assault, as provided in subparagraph (ii) of paragraph (b) of subdivision three of section 65.00 of the penal law, the duration of an order of protection shall be fixed at six years from the date of such sentencing. Section two amends 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, to provide that in the case of a felony conviction, where the sentence is or includes a sentence of probation on a conviction for a felony sexual assault, as provided in subparagraph (iii) of paragraph (a) of subdivision three of section 65.00 of the penal law, the court shall fix the duration of an order of protection at ten years from the date of such sentencing. In addition, in the case of a conviction for a misdemeanor, where the sentence is or includes a sentence of probation on a conviction for a misdemeanor sexual assault, as provided in subparagraph (ii) of paragraph (b) of subdivision three of section 65.00 of the penal law, the duration of an order of protection shall be fixed at six years from the date of such sentencing. Section three establishes an effective date of thirty days after becom- ing law, and will apply to offenses committed on or after such effective date; provided, however, that the amendments to the opening paragraphs of subdivision 5 of section 530.12 and subdivision 4 of section 530.13 of the criminal procedure law made by sections one and two of this act shall not affect the expiration of such paragraphs and shall be deemed to expire therewith.   JUSTIFICATION: In 2006, the criminal procedure law was amended to extend the permissi- ble 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 misdemeanor sexual assault convictions and felony 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 years in the case of a felony sexual assault, or six years in the case of a misdemeanor sexual assault. This bill will take effect thirty days after it becomes law, and will apply to offenses committed on or after such effective date; provided, however, that the amendments to the opening paragraphs of subdivision 5 of section 530.12 and subdivision 4 of section 530.13 of the criminal procedure law made by sections one and two of this act shall not affect the expiration of such paragraphs and shall be deemed to expire there- with.   LEGISLATIVE HISTORY: A.1877, 2013 and 2014 referred to Codes. A.87, 2011 and 2012 referred to Codes. Same as S.888, 2011 passed Senate, and 2012 referred to Children and Families. A.776A, 2009 and 2010 referred to Codes. Same as S.4591, 2009 and 2010 referred to Codes. 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 will apply to offenses committed on or after such effective date; provided, however, that the amendments to the opening paragraphs of subdivision 5 of section 530.12 and subdivision 4 of section 530.13 of the criminal procedure law made by sections one and two of this act shall not affect the expiration of such paragraphs and shall be deemed to expire there- with.
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A01797 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1797--A
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2015
                                       ___________
 
        Introduced by M. of A. PAULIN, GALEF, DINOWITZ, COOK, BENEDETTO, JAFFEE,
          TITUS -- read once and referred to the Committee on Codes -- committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to said committee
 
        AN  ACT  to amend the criminal procedure law, in relation to determining
          the expiration date of an order of protection
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. The opening paragraph of subdivision 5 of section 530.12 of
     2  the  criminal procedure law, as amended by section 1 of chapter 9 of the
     3  laws of 2011, is amended to read as follows:
     4    Upon sentencing on a conviction for any  crime  or  violation  between
     5  spouses,  between  a  parent  and  child, or between members of the same
     6  family or household as defined in subdivision one of section  530.11  of
     7  this  article,  the  court  may  in  addition  to any other disposition,
     8  including a conditional discharge  or  youthful  offender  adjudication,
     9  enter  an order of protection. Where a temporary order of protection was
    10  issued, the court shall state on the record the reasons for  issuing  or
    11  not  issuing an order of protection. The duration of such an order shall
    12  be fixed by the court and: (A) in the case of a felony conviction, shall
    13  not exceed the greater of:  (i)  eight  years  from  the  date  of  such
    14  sentencing,  except  where  the  sentence  is  or includes a sentence of
    15  probation on a conviction for a felony sexual assault,  as  provided  in
    16  subparagraph  (iii)  of  paragraph  (a)  of subdivision three of section
    17  65.00 of the penal law, in which case, ten years from the date  of  such
    18  sentencing,  or  (ii) eight years from the date of the expiration of the
    19  maximum term of an indeterminate or the term of a  determinate  sentence
    20  of imprisonment actually imposed; or (B) in the case of a conviction for
    21  a  class  A misdemeanor, shall not exceed the greater of: (i) five years
    22  from the date of such  sentencing,  except  where  the  sentence  is  or
    23  includes a sentence of probation on a conviction for a misdemeanor sexu-
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05050-05-5

        A. 1797--A                          2
 
     1  al  assault, as provided in subparagraph (ii) of paragraph (b) of subdi-
     2  vision three of section 65.00 of the penal law, in which case, six years
     3  from the date of such sentencing, or (ii) five years from  the  date  of
     4  the  expiration  of  the maximum term of a definite or intermittent term
     5  actually imposed; or (C) in the case  of  a  conviction  for  any  other
     6  offense, shall not exceed the greater of: (i) two years from the date of
     7  sentencing,  or  (ii)  two  years from the date of the expiration of the
     8  maximum term of a definite or intermittent term  actually  imposed.  For
     9  purposes  of  determining the duration of an order of protection entered
    10  pursuant to this subdivision, a conviction shall be deemed to include  a
    11  conviction  that  has been replaced by a youthful offender adjudication.
    12  In addition to any other conditions,  such  an  order  may  require  the
    13  defendant:
    14    §  2.  The opening paragraph of subdivision 4 of section 530.13 of the
    15  criminal procedure law, as amended by section 3 of chapter 9 of the laws
    16  of 2011, is amended to read as follows:
    17    Upon sentencing on a conviction for any offense, where the  court  has
    18  not  issued  an  order  of protection pursuant to section 530.12 of this
    19  article, the court may, in addition to any other disposition,  including
    20  a  conditional  discharge  or  youthful  offender adjudication, enter an
    21  order of protection. Where a temporary order of protection  was  issued,
    22  the court shall state on the record the reasons for issuing or not issu-
    23  ing an order of protection. The duration of such an order shall be fixed
    24  by  the  court  and;  (A)  in the case of a felony conviction, shall not
    25  exceed the greater of: (i) eight years from the date of such sentencing,
    26  except where the sentence is or includes a sentence of  probation  on  a
    27  conviction  for  a  felony  sexual  assault, as provided in subparagraph
    28  (iii) of paragraph (a) of subdivision three  of  section  65.00  of  the
    29  penal law, in which case, ten years from the date of such sentencing, or
    30  (ii)  eight years from the date of the expiration of the maximum term of
    31  an indeterminate or the term of a determinate sentence  of  imprisonment
    32  actually  imposed;  or  (B)  in  the  case of a conviction for a class A
    33  misdemeanor, shall not exceed the greater of: (i) five  years  from  the
    34  date  of  such  sentencing,  except  where the sentence is or includes a
    35  sentence of probation on a conviction for a misdemeanor sexual  assault,
    36  as  provided  in subparagraph (ii) of paragraph (b) of subdivision three
    37  of section 65.00 of the penal law, in which case,  six  years  from  the
    38  date  of such sentencing or (ii) five years from the date of the expira-
    39  tion of the maximum term of a definite  or  intermittent  term  actually
    40  imposed; or (C) in the case of a conviction for any other offense, shall
    41  not exceed the greater of: (i) two years from the date of sentencing, or
    42  (ii)  two years from the date of the expiration of the maximum term of a
    43  definite or intermittent term actually imposed. For purposes  of  deter-
    44  mining  the  duration of an order of protection entered pursuant to this
    45  subdivision, a conviction shall be deemed to include a  conviction  that
    46  has  been  replaced by a youthful offender adjudication.  In addition to
    47  any other conditions such an order may require that the defendant:
    48    § 3. This act shall take effect on the thirtieth day  after  it  shall
    49  have become a law and shall apply to offenses committed on or after such
    50  effective  date;  provided,  however, that the amendments to the opening
    51  paragraph of subdivision 5 of section 530.12 and the  opening  paragraph
    52  of subdivision 4 of section 530.13 of the criminal procedure law made by
    53  sections one and two of this act shall not affect the expiration of such
    54  paragraphs and shall be deemed to expire therewith.
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