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A06060 Summary:

BILL NOA06060
 
SAME ASNo Same As
 
SPONSORCrespo
 
COSPNSR
 
MLTSPNSRArroyo, Aubry, Barron, Cook, Crouch, McDonough, Moya, Perry, Ramos, Rivera, Rodriguez, Weprin
 
Amd 154-d & 168, Fam Ct Act; amd 530.12 & 530.13, CP L
 
Requires orders of protection and temporary orders of protection to be served upon the attorney representing the respondent; requires attorneys to accept service of such orders addressed to a client, and to provide notice thereof and the terms therein to the client.
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A06060 Actions:

BILL NOA06060
 
02/23/2017referred to judiciary
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A06060 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6060
 
SPONSOR: Crespo (MS)
  TITLE OF BILL: 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   PURPOSE OR GENERAL IDEA OF THE BILL: Requires orders of protection to serve upon the attorney representing the respondent.   SUMMARY OF SPECIFIC PROVISIONS: Section 1: Section 154-d of family court act, as added by chapter 186 of the laws of 1997, is amended by allowing the local criminal courts to issue a temporary order of protection upon the request of the petitioner pending a hearing in family court. Section 2: Subdivision 1 of section 168 of the family court act, as amended by chapter 416 of the laws of 1981, is amended by demanding that in any case in which an order of protection has been made by family court, the clerk shall issue a copy to all the people that it affects. Section 3: Subdivisions 3-a, 3-b and 8 of section 530.12 of the crimi- nal procedure law, subdivisions 3-a and 3-b as added by chapter 186 of the laws of 1997 and subdivision 8 as amended by sections of part D of chapter 56 of the laws of 2008, are amended by allowing the local crimi- nal courts to issue a temporary order of protection upon the request of the petitioner pending a hearing in family court. Section 4: Subdivision 6 of section 530.13 of the criminal procedure law, as amended by section 6 of part D of chapter 56 of the law of 2008 is amended by demanding that in any case in which an order of protection has been made by family court, the clerk shall issue a copy to all the people that it affects.   JUSTIFICATION: Slightly over one year ago newspaper headlines across the nation docu- mented the domestic violence inflicted on the girlfriend of a top staf- fer to the Governor of New York. Standing out as glaring problems were statements by the abuser's attorney that while the court had issued an order of protection, his client was never personally served to that fact. However, the abuser's attorney was notified by the court of the order of protection. This legislation will require that the service of temporary orders of protection and orders of protection upon the attorney repres- enting the respondent or defendant and requires the attorney to imme- diately provide notice to his client of the issuance of the order and terms of the order. It is an insult to our intelligence to hear that the client's attorney knows of the order of protection but not his client. Obviously there is client-attorney relationships were this information is shared and can therefore help protect the safety of victims of domestic abuse. Early in April of 2011, New York State released data indicating that nearly 2,000 men have been charged with strangulation since New York made strangulation a separate offense in 2011 in an effort to help combat domestic violence. The Division of Criminal Justice Services says the charge was lodged 2,003 times in the first 15 weeks and 94 percent of the suspects are male. Previously, intentional choking was usually charged as harassment, a violation, or third-degree assault if there were evident injuries. The Office for the Prevention of Domestic Violence cites nearly a half-mil- lion reported domestic incidents annually in New York, ranging from verbal disputes to homicides.   PRIOR LEGISLATIVE HISTORY: A.7233 of 2011; A2309 of 2013 died in judiciary. A.6567 of 2015 died in judiciary.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENT: None   EFFECTIVE DATE: This bill will take effect immediately
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A06060 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6060
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    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:
 
     1    Section  1. Section 154-d of the family court act, as added by chapter
     2  186 of the laws of 1997, is amended to read as follows:
     3    § 154-d. Emergency powers;  local  criminal  courts.  1.  Issuance  of
     4  temporary  orders  of  protection. Upon the request of the petitioner, a
     5  local criminal court may on an ex parte basis issue a temporary order of
     6  protection pending a hearing in family  court,  provided  that  a  sworn
     7  affidavit,  certified  in  accordance  with  subdivision  one of section
     8  100.30 of the criminal procedure law is submitted: (i) alleging that the
     9  family court is not in session; (ii) alleging that a family offense,  as
    10  defined  in  subdivision one of section eight hundred twelve of this act
    11  or subdivision one of section 530.11 of the criminal procedure law,  has
    12  been  committed;  (iii) alleging that a family offense petition has been
    13  filed or will be filed in family court on the next day the court  is  in
    14  session;  and (iv) showing good cause. Upon appearance in a local crimi-
    15  nal court, the petitioner shall be advised that he or she  may  continue
    16  with  the  proceeding  either  in  family court or, upon the filing of a
    17  local criminal court accusatory instrument, in criminal court  or  both.
    18  Upon  issuance  of  a  temporary  order  of  protection where petitioner
    19  requests that it be returnable in family court, the local criminal court
    20  shall transfer the matter forthwith to the family court and  shall  make
    21  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
 
     1  is in session, or as soon thereafter as practicable,  but  in  no  event
     2  more  than  four  calendar  days  after issuance of the order. The local
     3  criminal court, upon issuing a temporary order of protection  returnable
     4  in  family  court pursuant to this subdivision shall immediately forward
     5  in a manner designed to ensure arrival before the return date set in the
     6  order, a copy of the temporary order of protection and  sworn  affidavit
     7  to  the family court and shall provide a copy of such temporary order of
     8  protection to the petitioner; provided, however, that if  the  temporary
     9  order  of protection and affidavit are transmitted by facsimile or other
    10  electronic means, the original order and affidavit shall be forwarded to
    11  the family  court  immediately  thereafter.    Any  temporary  order  of
    12  protection  issued  pursuant  to this subdivision shall be issued to the
    13  respondent and the attorney  representing  the  respondent,  and  copies
    14  shall  be  filed  as  required  in subdivisions six and eight of section
    15  530.12 of the criminal procedure law for  orders  of  protection  issued
    16  pursuant  to  such section.  No attorney shall refuse to accept any such
    17  order addressed to his or her respondent client, and such attorney shall
    18  immediately provide notice to his or her client of the issuance  of  the
    19  order  and  the  terms  of such order. Any temporary order of protection
    20  issued pursuant to this subdivision shall plainly state  the  date  that
    21  such  order  expires which, in the case of an order returnable in family
    22  court, shall be not more than four calendar  days  after  its  issuance,
    23  unless  sooner  vacated  or  modified  by the family court. A petitioner
    24  requesting a temporary order of protection returnable  in  family  court
    25  pursuant  to this subdivision in a case in which a family court petition
    26  has not been filed shall  be  informed  that  such  temporary  order  of
    27  protection  shall  expire  as provided for herein, unless the petitioner
    28  files a petition pursuant to subdivision one of  section  eight  hundred
    29  twenty-one  of this act on or before the return date in family court and
    30  the family court issues a temporary order of  protection  as  authorized
    31  under article eight of this act. Nothing in this subdivision shall limit
    32  or restrict the petitioner's right to proceed directly and without court
    33  referral  in either a criminal or family court, or both, as provided for
    34  in section one hundred fifteen of this act and  section  100.07  of  the
    35  criminal procedure law.
    36    2.  Modifications  of  orders  of  protection  or  temporary orders of
    37  protection. Upon the request of the petitioner, a local  criminal  court
    38  may on an ex parte basis modify a temporary order of protection or order
    39  of  protection  which  has  been issued under article four, five, six or
    40  eight of this act pending a hearing in family  court,  provided  that  a
    41  sworn  affidavit, verified in accordance with subdivision one of section
    42  100.30 of the criminal procedure law, is submitted:  (i)  alleging  that
    43  the  family court is not in session and (ii) showing good cause, includ-
    44  ing a showing that the existing order is insufficient for  the  purposes
    45  of  protection  of the petitioner, the petitioner's child or children or
    46  other members of the petitioner's family or household. The local  crimi-
    47  nal  court shall make the matter regarding the modification of the order
    48  returnable in family court on the  next  day  the  family  court  is  in
    49  session, or as soon thereafter as practicable, but in no event more than
    50  four calendar days after issuance of the modified order. The local crim-
    51  inal  court  shall  immediately  forward, in a manner designed to ensure
    52  arrival before the return date set in the order, a copy of the  modified
    53  order if any and sworn affidavit to the family court and shall provide a
    54  copy  of  such  modified order, if any, and affidavit to the petitioner;
    55  provided, however, that if the modified order and affidavit  are  trans-
    56  mitted  to  the family court by facsimile or other electronic means, the

        A. 6060                             3
 
     1  original copy of such modified order and affidavit shall be forwarded to
     2  the family court immediately thereafter. Any modified temporary order of
     3  protection or order of protection issued pursuant  to  this  subdivision
     4  shall  be  issued  to  the  respondent and the attorney representing the
     5  respondent, and copies shall be filed as provided  in  subdivisions  six
     6  and  eight of section 530.12 of the criminal procedure law for orders of
     7  protection issued pursuant to such section.  No attorney shall refuse to
     8  accept any such order addressed to his or  her  respondent  client,  and
     9  such  attorney  shall immediately provide notice to his or her client of
    10  the issuance of the order and the terms of such order.
    11    § 2. Subdivision 1 of section 168 of the family court act, as  amended
    12  by chapter 416 of the laws of 1981, is amended to read as follows:
    13    1.  In  any case in which an order of protection or temporary order of
    14  protection has been made by the family court, the  clerk  of  the  court
    15  shall  issue  a  copy  of  such  order  to  the  petitioner  [and],  the
    16  respondent, the attorney representing the respondent and  to  any  other
    17  person  affected  by  the  order. No attorney shall refuse to accept any
    18  such order addressed to his or her respondent client, and such  attorney
    19  shall immediately provide notice to his or her client of the issuance of
    20  the  order and the terms of such order. The presentation of a copy of an
    21  order of protection or temporary order of protection or a warrant  or  a
    22  certificate  of  warrant to any peace officer, acting pursuant to his or
    23  her special duties, or police officer shall constitute authority for him
    24  or her to arrest a person charged with violating the terms of such order
    25  of protection or temporary order of protection  and  bring  such  person
    26  before the court and, otherwise, so far as lies within his or her power,
    27  to  aid  in  securing  the protection such order was intended to afford,
    28  provided, however, that any outstanding, unexpired certificate of  order
    29  of protection or temporary order of protection shall have the same force
    30  and effect as a copy of such order or temporary order.
    31    §  3.  Subdivisions  3-a,  3-b and 8 of section 530.12 of the criminal
    32  procedure law, subdivisions 3-a and 3-b as added by chapter 186  of  the
    33  laws  of 1997 and subdivision 8 as amended by chapter 480 of the laws of
    34  2013, are amended to read as follows:
    35    3-a. Emergency powers when family court not in  session;  issuance  of
    36  temporary  orders  of  protection. Upon the request of the petitioner, a
    37  local criminal court may on an ex parte basis issue a temporary order of
    38  protection pending a hearing in family  court,  provided  that  a  sworn
    39  affidavit, verified in accordance with subdivision one of section 100.30
    40  of this chapter, is submitted: (i) alleging that the family court is not
    41  in  session; (ii) alleging that a family offense, as defined in subdivi-
    42  sion one of section eight hundred twelve of the  family  court  act  and
    43  subdivision  one  of section 530.11 of this article, has been committed;
    44  (iii) alleging that a family offense petition has been filed or will  be
    45  filed  in family court on the next day the court is in session; and (iv)
    46  showing good cause. Upon appearance in a local criminal court, the peti-
    47  tioner shall be advised that he or she may continue with the  proceeding
    48  either  in  family  court  or  upon the filing of a local criminal court
    49  accusatory instrument in criminal court or  both.  Upon  issuance  of  a
    50  temporary  order  of  protection  where  petitioner  requests that it be
    51  returnable in family court, the local criminal court shall transfer  the
    52  matter  forthwith  to the family court and shall make the matter return-
    53  able in family court on the next day the family court is in session,  or
    54  as soon thereafter as practicable, but in no event more than four calen-
    55  dar  days  after  issuance  of the order. The local criminal court, upon
    56  issuing a temporary order  of  protection  returnable  in  family  court

        A. 6060                             4
 
     1  pursuant  to  this  subdivision,  shall immediately forward, in a manner
     2  designed to insure arrival before the return date set in  the  order,  a
     3  copy  of  the  temporary  order of protection and sworn affidavit to the
     4  family  court  and  shall  provide  a  copy  of  such temporary order of
     5  protection to the petitioner; provided, however, that where  a  copy  of
     6  the  temporary  order of protection and affidavit are transmitted to the
     7  family court by facsimile or other electronic means, the original  order
     8  and  affidavit shall be forwarded to the family court immediately there-
     9  after. Any temporary order of protection issued pursuant to this  subdi-
    10  vision  shall  be issued to the respondent and the attorney representing
    11  the respondent, and copies shall be filed as  required  in  subdivisions
    12  six  and  eight of this section for orders of protection issued pursuant
    13  to this section.   No attorney shall refuse to  accept  any  such  order
    14  addressed to his or her respondent client, and such attorney shall imme-
    15  diately provide notice to his or her client of the issuance of the order
    16  and  the  terms  of such order. Any temporary order of protection issued
    17  pursuant to this subdivision shall plainly  state  the  date  that  such
    18  order expires which, in the case of an order returnable in family court,
    19  shall  be  not  more  than four calendar days after its issuance, unless
    20  sooner vacated or modified by the family court. A petitioner  requesting
    21  a  temporary  order of protection returnable in family court pursuant to
    22  this subdivision in a case in which a family court petition has not been
    23  filed shall be informed that such temporary order  of  protection  shall
    24  expire  as  provided  for herein, unless the petitioner files a petition
    25  pursuant to subdivision one of section eight hundred twenty-one  of  the
    26  family  court  act  on or before the return date in family court and the
    27  family court  issues  a  temporary  order  of  protection  or  order  of
    28  protection  as  authorized  under article eight of the family court act.
    29  Nothing in this subdivision shall limit  or  restrict  the  petitioner's
    30  right  to proceed directly and without court referral in either a crimi-
    31  nal or family court, or both, as provided for  in  section  one  hundred
    32  fifteen of the family court act and section 100.07 of this chapter.
    33    3-b.  Emergency powers when family court not in session; modifications
    34  of orders of protection or temporary  orders  of  protection.  Upon  the
    35  request  of  the  petitioner,  a local criminal court may on an ex parte
    36  basis modify a temporary order of  protection  or  order  of  protection
    37  which  has  been  issued  under  article four, five, six or eight of the
    38  family court act pending a hearing in  family  court,  provided  that  a
    39  sworn  affidavit  verified in accordance with subdivision one of section
    40  100.30 of this chapter is submitted: (i) alleging that the family  court
    41  is  not in session and (ii) showing good cause, including a showing that
    42  the existing order is insufficient for the purposes of protection of the
    43  petitioner, the petitioner's child or children or other members  of  the
    44  petitioner's  family  or  household. The local criminal court shall make
    45  the matter regarding the modification of the order returnable in  family
    46  court  on the next day the family court is in session, or as soon there-
    47  after as practicable, but in no event more than four calendar days after
    48  issuance of the modified order. The court shall  immediately  forward  a
    49  copy  of  the  modified order, if any, and sworn affidavit to the family
    50  court and shall provide a copy of such modified order, if any, and affi-
    51  davit to the petitioner; provided, however, that where  copies  of  such
    52  modified  order  and  affidavit  are  transmitted to the family court by
    53  facsimile or other electronic means, the original copies of  such  modi-
    54  fied  order  and  affidavit shall be forwarded to the family court imme-
    55  diately thereafter. Any modified temporary order of protection or  order
    56  of protection issued pursuant to this subdivision shall be issued to the

        A. 6060                             5
 
     1  respondent and the attorney representing the respondent and copies shall
     2  be  filed  as required in subdivisions six and eight of this section for
     3  orders of protection issued pursuant to this section.  No attorney shall
     4  refuse  to  accept  any  such  order  addressed to his or her respondent
     5  client, and such attorney shall immediately provide notice to his or her
     6  client of the issuance of the order and the terms of such order.
     7    8. In any proceeding in which an  order  of  protection  or  temporary
     8  order of protection or a warrant has been issued under this section, the
     9  clerk  of  the  court  shall  issue to the complainant and defendant and
    10  defense counsel and to any other person affected by the order a copy  of
    11  the order of protection or temporary order of protection and ensure that
    12  a  copy  of  the order of protection or temporary order of protection be
    13  transmitted to the local correctional facility where the  individual  is
    14  or  will be detained, the state or local correctional facility where the
    15  individual is or will  be  imprisoned,  and  the  supervising  probation
    16  department  or department of corrections and community supervision where
    17  the individual is under probation or parole  supervision.    No  defense
    18  counsel  shall  refuse  to accept any such order addressed to his or her
    19  client, and such counsel shall immediately provide notice to the defend-
    20  ant of the issuance of the order and the terms of such order. The  pres-
    21  entation  of  a  copy  of  such  order or a warrant to any peace officer
    22  acting pursuant to his or her special duties  or  police  officer  shall
    23  constitute  authority for him or her to arrest a person who has violated
    24  the terms of such order and bring such  person  before  the  court  and,
    25  otherwise,  so  far  as lies within his or her power, to aid in securing
    26  the protection such order was intended to afford. The protected party in
    27  whose favor the order of protection or temporary order of protection  is
    28  issued  may  not  be held to violate an order issued in his or her favor
    29  nor may such protected party be arrested for violating such order.
    30    § 4. Subdivision 6 of section 530.13 of the criminal procedure law, as
    31  amended by section 82 of subpart B of part C of chapter 62 of  the  laws
    32  of 2011, is amended to read as follows:
    33    6.  In  any  proceeding  in  which an order of protection or temporary
    34  order of protection or a warrant has been issued under this section, the
    35  clerk of the court shall issue to  the  victim  and  the  defendant  and
    36  defense counsel and to any other person affected by the order, a copy of
    37  the order of protection or temporary order of protection and ensure that
    38  a  copy  of  the order of protection or temporary order of protection be
    39  transmitted to the local correctional facility where the  individual  is
    40  or  will be detained, the state or local correctional facility where the
    41  individual is or will  be  imprisoned,  and  the  supervising  probation
    42  department  or department of corrections and community supervision where
    43  the individual is under probation or parole  supervision.    No  defense
    44  counsel  shall  refuse  to accept any such order addressed to his or her
    45  client, and such counsel shall immediately provide notice to the defend-
    46  ant of the issuance of the order and the terms of such order. The  pres-
    47  entation  of  a copy of such order or a warrant to any police officer or
    48  peace officer acting pursuant to his or her special duties shall consti-
    49  tute authority for him or her to arrest a person who  has  violated  the
    50  terms  of  such order and bring such person before the court and, other-
    51  wise, so far as lies within his or her power, to  aid  in  securing  the
    52  protection such order was intended to afford.
    53    § 5. This act shall take effect  on the first of October next succeed-
    54  ing the date on which it shall have become a law.
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