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A08842 Summary:

BILL NOA08842
 
SAME ASSAME AS S07650
 
SPONSORGiglio
 
COSPNSRPalmesano, Hawley, Barclay
 
MLTSPNSR
 
Add Art 264 264.00 & 264.05, Pen L
 
Provides that the commission of certain specified crimes which are committed against a member of the same family or household shall be punishable as domestic violence crimes and carry enhanced penalties.
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A08842 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8842
 
SPONSOR: Giglio (MS)
  TITLE OF BILL: An act to amend the penal law, in relation to domestic violence crimes   PURPOSE OR GENERAL IDEA OF BILL: Creates a Domestic Violence Crime which provides an enhanced punishment for a person who intentionally commits a specified offense against a member of the same family or household.   SUMMARY OF SPECIFIC PROVISIONS: Section 1: Amends the Penal Law by adding a new Article 264, "Domestic Violence Crimes" comprised of two sections: § 264.00, Domestic Violence Crimes and § 264.05, Sentencing. Subdivision 1 of § 264.00: states that a person commits a domestic violence crime when he or she intentionally commits or intends to commit, a specified offense against a member of the same family or household. Subdivision 2 of § 264.00: sets forth the specified offenses, the commission of which provides the basis for a domestic violence crime prosecution. Subdivision 3 of § 264.00: defines member of the same family or house- hold. Subdivisions 1 through 5 of § 264.05: set forth the sentencing consequences for a person who is convicted of a domestic violence crime. Except when the specified offense is a class A or B felony, when a person is convicted of a domestic violence crime, that crime shall be deemed one category higher than the underlying specified offense. When the specified offense is a violation, the domestic violence crime shall be deemed an unclassified misdemeanor crime. With respect to class A and B felonies committed as domestic violence crimes, subdivisions 4 and 5 of § 264.05 apply, and elevate the respective terms of imprisonment. Subdivision 6 authorizes the court to require, as a part of the sentence imposed, that a person convicted of a domestic violence crime complete a program, training session or counseling session directed at domestic violence crime prevention and education. Section 2: Effective date.   JUSTIFICATION: To better understand the complex issue of domestic violence, the Assem- bly Republican Task Force on Preventing Domestic Violence held a number of forums throughout the State that provided a comprehensive examination of the challenges faced by domestic violence victims and the entities that assist them. Forum testimony emphasized that domestic violence cases can be some of the most difficult to prosecute, due to the nature of the relationship between the victim and the abuser. Feedback gener- ated from the forums identified the deficiencies in current law that need to be strengthened to better protect domestic violence victims and hold their abusers more accountable. This bill accomplishes that end by creating a new domestic violence crime that recognizes the insidious nature and consequences of domestic violence crimes and provides for enhanced punishments. The penalty for a person who commits a specified offense against a member of the same family or household would be enhanced by one penalty level, providing clear recognition of the gravity of domestic violence on its victims and their families. Under this legislation, more domestic violence offenders would be arrested. While police are authorized to arrest domestic violence abus- ers where there is probable cause to believe they committed a crime, many domestic violence offenses such as Harassment in the Second Degree, (where a slap, punch or kick falls short of the state's definition of physical injury) are violations, which are not considered crimes. Under current law, police cannot arrest an abuser committing a violation if the officer does not witness the abuser committing the violation or the victim refuses to make a complaint. However, many victims refuse to make a complaint, feeling they are betraying the trust of their abuser by cooperating with law enforcement. When abusers see that insignificant or no consequences are likely, their criminal behavior is likely to continue and even escalate. Elevating these violations to unclassified misdemeanor crimes would authorize law enforcement to arrest these abus- ers, sending a clear message to the abuser that his behavior is a crime and is taken seriously. It would benefit the victim by immediately getting the abuser out of the house, giving them more time to plan for their safety. Providing meaningful consequences is an essential compo- nent of promoting accountability with respect to domestic violence   PRIOR LEGISLATIVE HISTORY: New Bill.   FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS: None.   EFFECTIVE DATE: This act shall take effect on the ninetieth day after it shall have become a law.
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A08842 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8842
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    December 22, 2017
                                       ___________
 
        Introduced  by  M.  of  A. GIGLIO, GRAF -- read once and referred to the
          Committee on Codes
 
        AN ACT to amend the penal law, in relation to domestic violence crimes
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  penal  law is amended by adding a new article 264 to
     2  read as follows:
     3                                 ARTICLE 264
     4                          DOMESTIC VIOLENCE CRIMES
     5  Section 264.00 Domestic violence crimes.
     6          264.05 Sentencing.
     7  § 264.00 Domestic violence crimes.
     8    1. A person commits a domestic violence crime when he  or  she  inten-
     9  tionally  commits  or  intends  to  commit a specified offense against a
    10  member of the same family or household.
    11    2. A "specified offense" is an offense defined by any of the following
    12  provisions of this chapter:    section  120.00  (assault  in  the  third
    13  degree);  section  120.05 (assault in the second degree); section 120.10
    14  (assault in the first degree); section 120.13  (menacing  in  the  first
    15  degree);  section 120.14 (menacing in the second degree); section 120.15
    16  (menacing in the third degree); section 120.20 (reckless endangerment in
    17  the second degree); section 120.25 (reckless endangerment in  the  first
    18  degree);  section 120.45 (stalking in the fourth degree); section 120.50
    19  (stalking in the third degree); section 120.55 (stalking in  the  second
    20  degree);  section  120.60 (stalking in the first degree); section 121.11
    21  (criminal obstruction of breathing or blood circulation); section 121.12
    22  (strangulation in the second degree); section 121.13  (strangulation  in
    23  the  first  degree);  subdivision one of section 125.15 (manslaughter in
    24  the second degree); subdivision one,  two  or  four  of  section  125.20
    25  (manslaughter in the first degree); section 125.25 (murder in the second
    26  degree); section 130.20 (sexual misconduct); section 130.30 (rape in the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13678-03-7

        A. 8842                             2
 
     1  second  degree);  section  130.35  (rape  in  the first degree); section
     2  130.40 (criminal sexual act in the third degree); section 130.45 (crimi-
     3  nal sexual act in the second degree); section  130.50  (criminal  sexual
     4  act  in  the  first degree); section 130.52 (forcible touching); section
     5  130.53 (persistent sexual abuse); section 130.55 (sexual  abuse  in  the
     6  third  degree);  section  130.60  (sexual  abuse  in the second degree);
     7  section 130.65 (sexual  abuse  in  the  first  degree);  section  130.66
     8  (aggravated  sexual  abuse  in the third degree); section 130.67 (aggra-
     9  vated sexual abuse in the second  degree);  section  130.70  (aggravated
    10  sexual  abuse  in  the first degree); section 130.91 (sexually motivated
    11  felony); section  130.95  (predatory  sexual  assault);  section  130.96
    12  (predatory  sexual  assault  against  a child); section 135.05 (unlawful
    13  imprisonment in the second degree); section 135.10  (unlawful  imprison-
    14  ment  in  the  first  degree);  section  135.60  (coercion in the second
    15  degree); section 135.65 (coercion in the first degree);  section  140.20
    16  (burglary  in  the third degree); section 140.25 (burglary in the second
    17  degree); section 140.30 (burglary in the first degree);  section  145.00
    18  (criminal  mischief  in  the  fourth  degree);  section 145.05 (criminal
    19  mischief in the third degree); section 145.10 (criminal mischief in  the
    20  second  degree); section 145.12 (criminal mischief in the first degree);
    21  section 145.14 (criminal tampering in the third degree); section  215.50
    22  (criminal  contempt  in  the  second  degree);  section 215.51 (criminal
    23  contempt in the  first  degree);  section  215.52  (aggravated  criminal
    24  contempt);  section 240.20 (disorderly conduct); section 240.25 (harass-
    25  ment in the first degree); section  240.26  (harassment  in  the  second
    26  degree);  subdivision  one,  two  or  four of section 240.30 (aggravated
    27  harassment in the second degree); aggravated family offense  as  defined
    28  in  section  240.75  or  any  attempt or conspiracy to commit any of the
    29  foregoing offenses where the defendant and the person against  whom  the
    30  offense  was  committed  were members of the same family or household as
    31  defined in subdivision three of this section.
    32    3. For purposes of this section, a member of the same family or house-
    33  hold shall mean the following individuals:
    34    (a) persons related by consanguinity or affinity;
    35    (b) persons legally married to one another;
    36    (c) persons formerly married to one another regardless of whether they
    37  still reside in the same household;
    38    (d) persons who have a child in  common  regardless  of  whether  such
    39  persons are married or have lived together at any time; or
    40    (e)  unrelated  persons  who  are  continually or at regular intervals
    41  living in the same household or who have in the past continually  or  at
    42  regular intervals lived in the same household.
    43  § 264.05 Sentencing.
    44    1. When a person is convicted of a domestic violence crime pursuant to
    45  this  article, and the specified offense is a violent felony offense, as
    46  defined in section 70.02 of this chapter, the  domestic  violence  crime
    47  shall be deemed a violent felony offense.
    48    2. When a person is convicted of a domestic violence crime pursuant to
    49  this  article and the specified offense is a misdemeanor or a class C, D
    50  or E felony, the domestic violence crime shall be deemed to be one cate-
    51  gory higher than the specified offense the defendant committed,  or  one
    52  category  higher  than  the  offense level applicable to the defendant's
    53  conviction for an attempt or conspiracy to commit a  specified  offense,
    54  whichever is applicable.
    55    3. When a person is convicted of a domestic violence crime pursuant to
    56  this  article  and  the  specified  offense is a violation, the domestic

        A. 8842                             3

     1  violence crime shall be deemed an unclassified misdemeanor and the  term
     2  of the definite sentence shall not exceed sixty days.
     3    4.  Notwithstanding  any  other  provision  of  law,  when a person is
     4  convicted of a domestic violence crime pursuant to this article and  the
     5  specified offense is a class B felony:
     6    (a)  the  maximum  term of the indeterminate sentence must be at least
     7  six years if the defendant is sentenced pursuant  to  section  70.00  of
     8  this chapter;
     9    (b)  the term of the determinate sentence must be at least eight years
    10  if the defendant is sentenced pursuant to section 70.02 of this chapter;
    11    (c) the term of the determinate sentence must be at least twelve years
    12  if the defendant is sentenced pursuant to section 70.04 of this chapter;
    13    (d) the maximum term of the indeterminate sentence must  be  at  least
    14  four  years  if  the defendant is sentenced pursuant to section 70.05 of
    15  this chapter; and
    16    (e) the maximum term of the indeterminate sentence or the term of  the
    17  determinate  sentence  must  be  at  least ten years if the defendant is
    18  sentenced pursuant to section 70.06 of this chapter.
    19    5. Notwithstanding any other  provision  of  law,  when  a  person  is
    20  convicted  of a domestic violence crime pursuant to this article and the
    21  specified offense is a class A-1 felony, the minimum period of the inde-
    22  terminate sentence shall be not less than twenty years.
    23    6. In addition to any of the dispositions authorized by this  chapter,
    24  the  court  may  require  as  part of the sentence imposed upon a person
    25  convicted of a domestic violence crime pursuant to  this  article,  that
    26  the defendant complete a program, training session or counseling session
    27  directed  at domestic violence crime prevention and education, where the
    28  court determines such program, training session or counseling session is
    29  appropriate, available and was developed or authorized by the  court  or
    30  local  agencies  in  cooperation with organizations serving the affected
    31  community.
    32    § 2. This act shall take effect on the ninetieth day  after  it  shall
    33  have become a law.
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