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S07880 Summary:

BILL NOS07880
 
SAME ASSAME AS A08221
 
SPONSORFUNKE
 
COSPNSR
 
MLTSPNSR
 
Add Title 5 Art 735 735.00 - 735.50, Art 740 740.00 - 740.20, CP L
 
Relates to issuing restraining orders for certain offenders.
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S07880 Actions:

BILL NOS07880
 
03/06/2018REFERRED TO CODES
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S07880 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7880
 
                    IN SENATE
 
                                      March 6, 2018
                                       ___________
 
        Introduced  by  Sen.  FUNKE  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes
 
        AN ACT to amend the criminal  procedure  law,  in  relation  to  issuing
          restraining orders for certain offenders
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The criminal procedure law is amended by adding a new title
     2  V to read as follows:
     3                                   TITLE V
     4              RESTRAINING ORDERS WITH RESPECT TO DEFENDANTS IN
     5                      CRIMINAL ACTIONS AND PROCEEDINGS
 
     6                                 ARTICLE 735
     7           RESTRAINING ORDER FROM LOCATION; DRUG RELATED OFFENSES
     8  Section 735.00 Restraining order - use of a child to commit a controlled
     9                   substance offense.
    10          735.10 Restraining  order  -  criminal  sale  of  a   controlled
    11                   substance in the fourth degree.
    12          735.15 Restraining   order  -  criminal  sale  of  a  controlled
    13                   substance to a child.
    14          735.20 Restraining order - unlawful manufacture of  methampheta-
    15                   mine in the third degree.
    16          735.25 Restraining  order - unlawful manufacture of methampheta-
    17                   mine in the second degree.
    18          735.30 Restraining order - unlawful manufacture of  methampheta-
    19                   mine in the first degree.
    20          735.35 Restraining order - operating as a major trafficker.
    21          735.40 Restraining  order  -  exceptions, content, distribution,
    22                   modifications.
    23          735.45 Certification of offense location.
    24          735.50 Discretion to not seek restraining order.
    25  § 735.00 Restraining order - use of  a  child  to  commit  a  controlled
    26             substance offense.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11972-01-7

        S. 7880                             2
 
     1    1.  When  a  person  is  charged with a criminal offense as defined in
     2  section 220.28 of the penal law and the person is released from  custody
     3  before  trial on bail or personal recognizance, the court, upon applica-
     4  tion of a law enforcement officer or prosecuting attorney and except  as
     5  provided  in subdivision one of section 735.40 of this article, shall as
     6  a condition of release issue an order prohibiting the person from enter-
     7  ing any  place  where  the  crime  occurred,  including  a  buffer  zone
     8  surrounding the place or modifications as provided by subdivision two of
     9  section 735.40 of this article.
    10    2.  When  a  person  is  charged with a criminal offense as defined in
    11  section 220.28 of the penal law on a summons, the court,  upon  applica-
    12  tion  of a law enforcement officer or prosecuting attorney and except as
    13  provided in subdivision one of section 735.40 of this article, shall, at
    14  the time of the defendant's first appearance, issue an order prohibiting
    15  the person from entering any place where the crime occurred, including a
    16  buffer zone surrounding the place or modifications as provided by subdi-
    17  vision two of section 735.40 of this article.
    18    3. When a person is charged with a  criminal  offense  as  defined  in
    19  section  220.28 of the penal law on a juvenile delinquency complaint and
    20  is released from custody at a detention hearing, the court, upon  appli-
    21  cation  of  a law enforcement officer or prosecuting attorney and except
    22  as provided in subdivision one of section 735.40 of this article,  shall
    23  issue  an order prohibiting the person from entering any place where the
    24  crime occurred, including a buffer zone surrounding the place or modifi-
    25  cations as provided by subdivision two of section 735.40 of  this  arti-
    26  cle.
    27    4.  When  a  person  is  charged with a criminal offense as defined in
    28  section 220.28 of the penal law on a juvenile delinquency complaint  and
    29  is released without being detained, the law enforcement officer or pros-
    30  ecuting  attorney  shall  prepare  an application for filing on the next
    31  day. The law enforcement officer releasing the juvenile shall serve  the
    32  juvenile  and  his or her parent or guardian with written notice that an
    33  order shall be issued by the family court on the next court day  prohib-
    34  iting  the  juvenile  from  entering  any place where the crime occurred
    35  including a buffer  zone  surrounding  the  place  or  modifications  as
    36  provided by subdivision two of section 735.40 of this article. The court
    37  shall  issue  such order on the first court day following the release of
    38  the juvenile. If the restraints contained in the court order differ from
    39  the restraints contained in the notice, the order shall not be effective
    40  until the third court day following the issuance of the order. The juve-
    41  nile may apply to the court to stay or modify the order on  the  grounds
    42  set forth in subdivision one of section 735.40 of this article.
    43  § 735.10 Restraining  order - criminal sale of a controlled substance in
    44             the fourth degree.
    45    1. When a person is charged with a  criminal  offense  as  defined  in
    46  section  220.34 of the penal law and the person is released from custody
    47  before trial on bail or personal recognizance, the court, upon  applica-
    48  tion  of  a law enforcement officer or prosecuting district attorney and
    49  except as provided in subdivision one of section 735.40 of this article,
    50  shall as a condition of release issue an order  prohibiting  the  person
    51  from  entering  any  place  where the crime occurred, including a buffer
    52  zone surrounding the place or modifications as provided  by  subdivision
    53  two of section 735.40 of this article.
    54    2.  When  a  person  is  charged with a criminal offense as defined in
    55  section 220.34 of the penal law on a summons, the court,  upon  applica-
    56  tion  of a law enforcement officer or prosecuting attorney and except as

        S. 7880                             3
 
     1  provided in subdivision one of section 735.40 of this article, shall, at
     2  the time of the defendant's first appearance, issue an order prohibiting
     3  the person from entering any place where the crime occurred, including a
     4  buffer zone surrounding the place or modifications as provided by subdi-
     5  vision two of section 735.40 of this article.
     6    3.  When  a  person  is  charged with a criminal offense as defined in
     7  section 220.34 of the penal law on a juvenile delinquency complaint  and
     8  is  released from custody at a detention hearing, the court, upon appli-
     9  cation of a law enforcement officer or prosecuting attorney  and  except
    10  as  provided in subdivision one of section 735.40 of this article, shall
    11  issue an order prohibiting the person from entering any place where  the
    12  crime occurred, including a buffer zone surrounding the place or modifi-
    13  cations  as  provided by subdivision two of section 735.40 of this arti-
    14  cle.
    15    4. When a person is charged with a  criminal  offense  as  defined  in
    16  section  220.34 of the penal law on a juvenile delinquency complaint and
    17  is released without being detained, the law enforcement officer or pros-
    18  ecuting attorney shall prepare an application for  filing  on  the  next
    19  day.  The law enforcement officer releasing the juvenile shall serve the
    20  juvenile and his parent or guardian with written notice  that  an  order
    21  shall  be  issued  by the family court on the next court day prohibiting
    22  the juvenile from entering any place where the crime occurred  including
    23  a  buffer  zone  surrounding  the  place or modifications as provided by
    24  subdivision two of section 735.40 of this article. The court shall issue
    25  such order on the first court day following the release of the juvenile.
    26  If  the  restraints  contained  in  the  court  order  differ  from  the
    27  restraints  contained  in  the  notice, the order shall not be effective
    28  until the third court day following the issuance of the order. The juve-
    29  nile may apply to the court to stay or modify the order on  the  grounds
    30  set forth in subdivision one of section 735.40 of this article.
    31  § 735.15 Restraining  order - criminal sale of a controlled substance to
    32             a child.
    33    1. When a person is charged with a  criminal  offense  as  defined  in
    34  section  220.48 of the penal law and the person is released from custody
    35  before trial on bail or personal recognizance, the court, upon  applica-
    36  tion  of a law enforcement officer or prosecuting attorney and except as
    37  provided in subdivision one of section 735.40 of this article, shall  as
    38  a condition of release issue an order prohibiting the person from enter-
    39  ing  any  place  where  the  crime  occurred,  including  a  buffer zone
    40  surrounding the place or modifications as provided by subdivision two of
    41  section 735.40 of this article.
    42    2. When a person is charged with a  criminal  offense  as  defined  in
    43  section  220.48  of the penal law on a summons, the court, upon applica-
    44  tion of a law enforcement officer or prosecuting attorney and except  as
    45  provided in subdivision one of section 735.40 of this article, shall, at
    46  the time of the defendant's first appearance, issue an order prohibiting
    47  the person from entering any place where the crime occurred, including a
    48  buffer zone surrounding the place or modifications as provided by subdi-
    49  vision two of section 735.40 of this article.
    50    3.  When  a  person  is  charged with a criminal offense as defined in
    51  section 220.48 of the penal law on a juvenile delinquency complaint  and
    52  is  released from custody at a detention hearing, the court, upon appli-
    53  cation of a law enforcement officer or prosecuting attorney  and  except
    54  as  provided in subdivision one of section 735.40 of this article, shall
    55  issue an order prohibiting the person from entering any place where  the
    56  crime occurred, including a buffer zone surrounding the place or modifi-

        S. 7880                             4
 
     1  cations  as  provided by subdivision two of section 735.40 of this arti-
     2  cle.
     3    4.  When  a  person  is  charged with a criminal offense as defined in
     4  section 220.48 of the penal law on a juvenile delinquency complaint  and
     5  is released without being detained, the law enforcement officer or pros-
     6  ecuting  attorney  shall  prepare  an application for filing on the next
     7  day. The law enforcement officer releasing the juvenile shall serve  the
     8  juvenile  and  his or her parent or guardian with written notice that an
     9  order shall be issued by the family court on the next court day  prohib-
    10  iting  the  juvenile  from  entering  any place where the crime occurred
    11  including a buffer  zone  surrounding  the  place  or  modifications  as
    12  provided by subdivision two of section 735.40 of this article. The court
    13  shall  issue  such order on the first court day following the release of
    14  the juvenile. If the restraints contained in the court order differ from
    15  the restraints contained in the notice, the order shall not be effective
    16  until the third court day following the issuance of the order. The juve-
    17  nile may apply to the court to stay or modify the order on  the  grounds
    18  set forth in subdivision one of section 735.40 of this article.
    19  § 735.20 Restraining  order - unlawful manufacture of methamphetamine in
    20             the third degree.
    21    1. When a person is charged with a  criminal  offense  as  defined  in
    22  section  220.73 of the penal law and the person is released from custody
    23  before trial on bail or personal recognizance, the court, upon  applica-
    24  tion  of a law enforcement officer or prosecuting attorney and except as
    25  provided in subdivision one of section 735.40 of this article, shall  as
    26  a condition of release issue an order prohibiting the person from enter-
    27  ing  any  place  where  the  crime  occurred,  including  a  buffer zone
    28  surrounding the place or modifications as provided by subdivision two of
    29  section 735.40 of this article.
    30    2. When a person is charged with a  criminal  offense  as  defined  in
    31  section  220.73  of the penal law on a summons, the court, upon applica-
    32  tion of a law enforcement officer or prosecuting attorney and except  as
    33  provided in subdivision one of section 735.40 of this article, shall, at
    34  the time of the defendant's first appearance, issue an order prohibiting
    35  the person from entering any place where the crime occurred, including a
    36  buffer zone surrounding the place or modifications as provided by subdi-
    37  vision two of section 735.40 of this article.
    38    3.  When  a  person  is  charged with a criminal offense as defined in
    39  section 220.73 of the penal law on a juvenile delinquency complaint  and
    40  is  released from custody at a detention hearing, the court, upon appli-
    41  cation of a law enforcement officer or prosecuting attorney  and  except
    42  as  provided in subdivision one of section 735.40 of this article, shall
    43  issue an order prohibiting the person from entering any place where  the
    44  crime occurred, including a buffer zone surrounding the place or modifi-
    45  cations  as  provided by subdivision two of section 735.40 of this arti-
    46  cle.
    47    4. When a person is charged with a  criminal  offense  as  defined  in
    48  section  220.73 of the penal law on a juvenile delinquency complaint and
    49  is released without being detained, the law enforcement officer or pros-
    50  ecuting attorney shall prepare an application for  filing  on  the  next
    51  day.  The law enforcement officer releasing the juvenile shall serve the
    52  juvenile and his or her parent or guardian with written notice  that  an
    53  order  shall be issued by the family court on the next court day prohib-
    54  iting the juvenile from entering any  place  where  the  crime  occurred
    55  including  a  buffer  zone  surrounding  the  place  or modifications as
    56  provided by subdivision two of section 735.40 of this article. The court

        S. 7880                             5
 
     1  shall issue such order on the first court day following the  release  of
     2  the juvenile. If the restraints contained in the court order differ from
     3  the restraints contained in the notice, the order shall not be effective
     4  until the third court day following the issuance of the order. The juve-
     5  nile  may  apply to the court to stay or modify the order on the grounds
     6  set forth in subdivision one of section 735.40 of this article.
     7  § 735.25 Restraining order - unlawful manufacture of methamphetamine  in
     8             the second degree.
     9    1.  When  a  person  is  charged with a criminal offense as defined in
    10  section 220.74 of the penal law and the person is released from  custody
    11  before  trial on bail or personal recognizance, the court, upon applica-
    12  tion of a law enforcement officer or prosecuting attorney and except  as
    13  provided  in subdivision one of section 735.40 of this article, shall as
    14  a condition of release issue an order prohibiting the person from enter-
    15  ing any  place  where  the  crime  occurred,  including  a  buffer  zone
    16  surrounding the place or modifications as provided by subdivision two of
    17  section 735.40 of this article.
    18    2.  When  a  person  is  charged with a criminal offense as defined in
    19  section 220.74 of the penal law on a summons, the court,  upon  applica-
    20  tion  of a law enforcement officer or prosecuting attorney and except as
    21  provided in subdivision one of section 735.40 of this article, shall, at
    22  the time of the defendant's first appearance, issue an order prohibiting
    23  the person from entering any place where the crime occurred, including a
    24  buffer zone surrounding the place or modifications as provided by subdi-
    25  vision two of section 735.40 of this article.
    26    3. When a person is charged with a  criminal  offense  as  defined  in
    27  section  220.74 of the penal law on a juvenile delinquency complaint and
    28  is released from custody at a detention hearing, the court, upon  appli-
    29  cation  of  a law enforcement officer or prosecuting attorney and except
    30  as provided in subdivision one of section 735.40 of this article,  shall
    31  issue  an order prohibiting the person from entering any place where the
    32  crime occurred, including a buffer zone surrounding the place or modifi-
    33  cations as provided by subdivision two of section 735.40 of  this  arti-
    34  cle.
    35    4.  When  a  person  is  charged with a criminal offense as defined in
    36  section 220.74 of the penal law on a juvenile delinquency complaint  and
    37  is released without being detained, the law enforcement officer or pros-
    38  ecuting  attorney  shall  prepare  an application for filing on the next
    39  day. The law enforcement officer releasing the juvenile shall serve  the
    40  juvenile  and  his or her parent or guardian with written notice that an
    41  order shall be issued by the family court on the next court day  prohib-
    42  iting  the  juvenile  from  entering  any place where the crime occurred
    43  including a buffer  zone  surrounding  the  place  or  modifications  as
    44  provided by subdivision two of section 735.40 of this article. The court
    45  shall  issue  such order on the first court day following the release of
    46  the juvenile. If the restraints contained in the court order differ from
    47  the restraints contained in the notice, the order shall not be effective
    48  until the third court day following the issuance of the order. The juve-
    49  nile may apply to the court to stay or modify the order on  the  grounds
    50  set forth in subdivision one of section 735.40 of this article.
    51  § 735.30 Restraining  order - unlawful manufacture of methamphetamine in
    52             the first degree.
    53    1. When a person is charged with a  criminal  offense  as  defined  in
    54  section  220.75 of the penal law and the person is released from custody
    55  before trial on bail or personal recognizance, the court, upon  applica-
    56  tion  of a law enforcement officer or prosecuting attorney and except as

        S. 7880                             6

     1  provided in subdivision one of section 735.40 of this article, shall  as
     2  a condition of release issue an order prohibiting the person from enter-
     3  ing  any  place  where  the  crime  occurred,  including  a  buffer zone
     4  surrounding the place or modifications as provided by subdivision two of
     5  section 735.40 of this article.
     6    2.  When  a  person  is  charged with a criminal offense as defined in
     7  section 220.75 of the penal law on a summons, the court,  upon  applica-
     8  tion  of a law enforcement officer or prosecuting attorney and except as
     9  provided in subdivision one of section 735.40 of this article, shall, at
    10  the time of the defendant's first appearance, issue an order prohibiting
    11  the person from entering any place where the crime occurred, including a
    12  buffer zone surrounding the place or modifications as provided by subdi-
    13  vision two of section 735.40 of this article.
    14    3. When a person is charged with a  criminal  offense  as  defined  in
    15  section  220.75 of the penal law on a juvenile delinquency complaint and
    16  is released from custody at a detention hearing, the court, upon  appli-
    17  cation  of  a law enforcement officer or prosecuting attorney and except
    18  as provided in subdivision one of section 735.40 of this article,  shall
    19  issue  an order prohibiting the person from entering any place where the
    20  crime occurred, including a buffer zone surrounding the place or modifi-
    21  cations as provided by subdivision two of section 735.40 of  this  arti-
    22  cle.
    23    4.  When  a  person  is  charged with a criminal offense as defined in
    24  section 220.75 of the penal law on a juvenile delinquency complaint  and
    25  is released without being detained, the law enforcement officer or pros-
    26  ecuting  attorney  shall  prepare  an application for filing on the next
    27  day. The law enforcement officer releasing the juvenile shall serve  the
    28  juvenile  and  his or her parent or guardian with written notice that an
    29  order shall be issued by the family court on the next court day  prohib-
    30  iting  the  juvenile  from  entering  any place where the crime occurred
    31  including a buffer  zone  surrounding  the  place  or  modifications  as
    32  provided by subdivision two of section 735.40 of this article. The court
    33  shall  issue  such order on the first court day following the release of
    34  the juvenile. If the restraints contained in the court order differ from
    35  the restraints contained in the notice, the order shall not be effective
    36  until the third court day following the issuance of the order. The juve-
    37  nile may apply to the court to stay or modify the order on  the  grounds
    38  set forth in subdivision one of section 735.40 of this article.
    39  § 735.35 Restraining order - operating as a major trafficker.
    40    1.  When  a  person  is  charged with a criminal offense as defined in
    41  section 220.77 of the penal law and the person is released from  custody
    42  before  trial on bail or personal recognizance, the court, upon applica-
    43  tion of a law enforcement officer or prosecuting attorney and except  as
    44  provided  in subdivision one of section 735.40 of this article, shall as
    45  a condition of release issue an order prohibiting the person from enter-
    46  ing any  place  where  the  crime  occurred,  including  a  buffer  zone
    47  surrounding the place or modifications as provided by subdivision two of
    48  section 735.40 of this article.
    49    2.  When  a  person  is  charged with a criminal offense as defined in
    50  section 220.77 of the penal law on a summons, the court,  upon  applica-
    51  tion  of a law enforcement officer or prosecuting attorney and except as
    52  provided in subdivision one of section 735.40, shall, at the time of the
    53  defendant's first appearance, issue an order prohibiting the person from
    54  entering any place where the crime occurred,  including  a  buffer  zone
    55  surrounding the place or modifications as provided by subdivision two of
    56  section 735.40 of this article.

        S. 7880                             7
 
     1    3.  When  a  person  is  charged with a criminal offense as defined in
     2  section 220.77 of the penal law on a juvenile delinquency complaint  and
     3  is  released from custody at a detention hearing, the court, upon appli-
     4  cation of a law enforcement officer or prosecuting attorney  and  except
     5  as  provided  in subdivision one of section 735.40, shall issue an order
     6  prohibiting the person from entering any place where the crime occurred,
     7  including a buffer  zone  surrounding  the  place  or  modifications  as
     8  provided by subdivision two of section 735.40 of this article.
     9    4.  When  a  person  is  charged with a criminal offense as defined in
    10  section 220.77 of the penal law on a juvenile delinquency complaint  and
    11  is released without being detained, the law enforcement officer or pros-
    12  ecuting  attorney  shall  prepare  an application for filing on the next
    13  day. The law enforcement officer releasing the juvenile shall serve  the
    14  juvenile  and  his or her parent or guardian with written notice that an
    15  order shall be issued by the family court on the next court day  prohib-
    16  iting  the  juvenile  from  entering  any place where the crime occurred
    17  including a buffer  zone  surrounding  the  place  or  modifications  as
    18  provided by subdivision two of section 735.40 of this article. The court
    19  shall  issue  such order on the first court day following the release of
    20  the juvenile. If the restraints contained in the court order differ from
    21  the restraints contained in the notice, the order shall not be effective
    22  until the third court day following the issuance of the order. The juve-
    23  nile may apply to the court to stay or modify the order on  the  grounds
    24  set forth in subdivision one of section 735.40 of this article.
    25  § 735.40 Restraining  order - exceptions, content, distribution, modifi-
    26             cations.
    27    1. The court may forego issuing a restraining order for which applica-
    28  tion has been made only  if  the  defendant  establishes  by  clear  and
    29  convincing  evidence  that: (a) the defendant lawfully resides at or has
    30  legitimate business on or near  the  place,  or  otherwise  legitimately
    31  needs  to  enter the place. In  such event, the court shall not issue an
    32  order pursuant to this article unless the  court  is  clearly  convinced
    33  that  the  need to bar the person from the place in order to protect the
    34  public safety and the rights, safety and health  of  the  residents  and
    35  persons  working in the place outweighs the person's interest in return-
    36  ing to the place. If the balance of the interest of the person  and  the
    37  public  so  warrants,  the  court may issue an order imposing conditions
    38  upon the person's entry at, upon or near the place; or
    39    (b) the issuance of an order would cause undue  hardship  to  innocent
    40  persons  and  would  constitute  a serious injustice which overrides the
    41  need to protect the rights, safety and health of persons residing in  or
    42  having business in the place.
    43    2.  A restraining order issued pursuant to this article shall describe
    44  the place from which the person has been barred and any conditions  upon
    45  the person's entry into the place, with sufficient specificity to enable
    46  the person to guide his conduct accordingly and to enable a law enforce-
    47  ment  officer  to  enforce  the order. The order shall also prohibit the
    48  person from entering an area of up to five hundred feet surrounding  the
    49  place,  unless the court rules that a different buffer zone would better
    50  effectuate the purposes of this article. In the discretion of the court,
    51  the order may contain modifications to permit the person  to  enter  the
    52  area  during  specified  times  for specified purposes such as attending
    53  school during regular school hours.  When  appropriate,  the  court  may
    54  append to the order a map depicting the place. The person shall be given
    55  a  copy of the restraining order and any appended map and shall acknowl-
    56  edge in writing the receipt thereof.

        S. 7880                             8
 
     1    3. (a) The court shall provide notice of the restraining order to  the
     2  local law enforcement agency where the arrest occurred and to the county
     3  district attorney.
     4    (b)  Prior  to  the person's conviction or adjudication of delinquency
     5  for a criminal offense, the local law enforcement agency may post a copy
     6  of any orders issued pursuant to this article, or an  equivalent  notice
     7  containing  the  terms  of  the order, upon one or more of the principal
     8  entrances of the place or in any other conspicuous location. Such  post-
     9  ing shall be for the purpose of informing the public, and the failure to
    10  post  a  copy  of  the order shall in no way excuse any violation of the
    11  order.
    12    (c) Prior to the person's conviction or  adjudication  of  delinquency
    13  for a criminal offense, any law enforcement agency may publish a copy of
    14  any  orders  issued  pursuant  to  this article, or an equivalent notice
    15  containing the terms of the order, in a  newspaper  circulating  in  the
    16  area of the restraining order. Such publication shall be for the purpose
    17  of  informing the public, and the failure to publish a copy of the order
    18  shall in no way excuse any violation of the order.
    19    (d) Prior to the person's conviction or  adjudication  of  delinquency
    20  for a criminal offense, any law enforcement agency may distribute copies
    21  of  any  orders issued pursuant to this article, or an equivalent notice
    22  containing the terms of the order, to residents  or  businesses  located
    23  within  the  area delineated in the order or, in the case of a school or
    24  any government-owned property, to the appropriate administrator,  or  to
    25  any  tenant association representing the residents of the affected area.
    26  Such publication shall be for the purpose of informing the  public,  and
    27  the  failure  to  publish a copy of the order shall in no way excuse any
    28  violation of the order.
    29    4. When a person is convicted of or  adjudicated  delinquent  for  any
    30  criminal  offense described in this article, the court, upon application
    31  of a law enforcement officer  or  prosecuting  attorney  and  except  as
    32  provided in subdivision one of this section, shall, by separate order or
    33  within the judgment of conviction, issue an order prohibiting the person
    34  from  entering  any  place  where the crime occurred, including a buffer
    35  zone surrounding the place or modifications as provided  by  subdivision
    36  two  of  this  section.  Upon the person's conviction or adjudication of
    37  delinquency for a criminal offense described  in  this  article,  a  law
    38  enforcement  agency, in addition to posting, publishing and distributing
    39  the order or an equivalent notice pursuant to paragraphs (b),  (c),  and
    40  (d)  of  subdivision  three  of this section, may also post, publish and
    41  distribute a photograph of the person.
    42    5. When a juvenile has been adjudicated delinquent for an  act  which,
    43  if committed by an adult, would be a criminal offense, in addition to an
    44  order required by subdivision four of this section or any other disposi-
    45  tion authorized by law, the court may order the juvenile and any parent,
    46  guardian  or  any  family member over whom the court has jurisdiction to
    47  take such actions or obey such restraints as may be necessary to facili-
    48  tate the rehabilitation of the juvenile or to protect public  safety  or
    49  to  safeguard or enforce the rights of residents of the place. The court
    50  may commit the juvenile to the care of the office of children and family
    51  services until such time as the juvenile reaches the age of eighteen  or
    52  until  the  order  of  removal  and  restraint  expires, whichever first
    53  occurs, or to such alternative residential placement as is practicable.
    54    6. An order  issued  pursuant  to  sections  735.00,  735.10,  735.15,
    55  735.20,  735.25,  735.30,  and  735.35  of  this article shall remain in
    56  effect until the case has been adjudicated or dismissed, or for not less

        S. 7880                             9
 
     1  than two years, whichever is less. An order issued pursuant to  subdivi-
     2  sion  four  of  this  section shall remain in effect for such period of,
     3  time as shall be fixed by the court but  not  longer  than  the  maximum
     4  terms of imprisonment or incarceration allowed by law for the underlying
     5  offense  or offenses. When the court issues a restraining order pursuant
     6  to subdivision four of this section and the person is also sentenced  to
     7  any  form  of  probationary supervision, the court shall make continuing
     8  compliance with the order an express condition of  probation.  When  the
     9  person has been sentenced to a term of incarceration, continuing compli-
    10  ance with the terms and conditions of the order shall be made an express
    11  condition  of  the person's release from confinement or incarceration on
    12  parole. At the time of sentencing or, in the case of a juvenile, at  the
    13  time  of  disposition  of  the juvenile case, the court shall advise the
    14  defendant that the restraining order shall include a fixed  time  period
    15  in  accordance with this subdivision and shall include that provision in
    16  the judgment of conviction, dispositional order, separate order or order
    17  vacating an existing restraining order, to the  law  enforcement  agency
    18  that made the arrest and to the county district attorney.
    19    7. All applications to stay or modify an order issued pursuant to this
    20  section  shall  be  made  in  supreme court. The court shall immediately
    21  notify the county district attorney in writing whenever  an  application
    22  is  made  to stay or modify an order issued pursuant to this section. If
    23  the court does not issue a restraining order, the  sentence  imposed  by
    24  the  court  for  a criminal offense as defined in this article shall not
    25  become final for ten days in order to permit the appeal of  the  court's
    26  findings by the prosecution.
    27    8.  Nothing in this article shall be construed in any way to limit the
    28  authority of the court to take such  other  actions  or  to  issue  such
    29  orders  as may be necessary to protect the public safety or to safeguard
    30  or enforce the rights of others with respect to the place.
    31    9. Notwithstanding any other provision of this article, the court  may
    32  permit  the  person to return to the place to obtain personal belongings
    33  and effects and, by court order, may restrict the time and duration  and
    34  provide for police supervision of such visit.
    35  § 735.45 Certification of offense location.
    36    The  court  shall  issue  a restraining order pursuant to this article
    37  only upon request by a law enforcement officer or  prosecuting  attorney
    38  and  submission  of  a  certification  describing  the  location  of the
    39  offense.
    40  § 735.50 Discretion to not seek restraining order.
    41    A law enforcement or prosecuting attorney shall have discretion to not
    42  seek a restraining order if the defendant is  charged  with  an  offense
    43  resulting from the stop of a motor vehicle or if the defendant was using
    44  public transportation.
    45                                 ARTICLE 740
    46               RESTRAINING ORDER FROM LOCATION; CERTAIN CRIMES
    47  Section 740.00 Restraining  order  -  criminal possession of a weapon in
    48                   the third degree.
    49          740.10 Restraining order -- exceptions,  content,  distribution,
    50                   modifications.
    51          740.15 Certification of offense location.
    52          740.20 Discretion to not seek restraining order.
    53  § 740.00 Restraining  order  -  criminal  possession  of a weapon in the
    54             third degree.
    55    1. When a person is charged with a  criminal  offense  as  defined  in
    56  subdivision  seven  of section 265.02 of the penal law and the person is

        S. 7880                            10
 
     1  released from custody before trial on bail or personal recognizance, the
     2  court, upon application of a  law  enforcement  officer  or  prosecuting
     3  attorney  and except as provided in subdivision one of section 740.10 of
     4  this article, shall as a condition of release issue an order prohibiting
     5  the person from entering any place where the crime occurred, including a
     6  buffer zone surrounding the place or modifications as provided by subdi-
     7  vision two of section 740.10 of this article.
     8    2.  When  a  person  is  charged with a criminal offense as defined in
     9  subdivision seven of section 265.02 of the penal law on a  summons,  the
    10  court,  upon  application  of  a  law enforcement officer or prosecuting
    11  attorney and except as provided in subdivision one of section 740.10  of
    12  this  article,  shall,  at the time of the defendant's first appearance,
    13  issue an order prohibiting the person from entering any place where  the
    14  crime occurred, including a buffer zone surrounding the place or modifi-
    15  cations  as  provided by subdivision two of section 740.10 of this arti-
    16  cle.
    17    3. When a person is charged with a  criminal  offense  as  defined  in
    18  subdivision  seven  of  section  265.02  of  the penal law on a juvenile
    19  delinquency complaint and is released from custody at a detention  hear-
    20  ing,  the court, upon application of a law enforcement officer or prose-
    21  cuting attorney and except as provided in  subdivision  one  of  section
    22  740.10 of this article, shall issue an order prohibiting the person from
    23  entering  any  place  where  the crime occurred, including a buffer zone
    24  surrounding the place or modifications as provided by subdivision two of
    25  section 740.10 of this article.
    26    4. When a person is charged with a  criminal  offense  as  defined  in
    27  subdivision  seven  of  section  265.02  of  the penal law on a juvenile
    28  delinquency complaint and is released without being  detained,  the  law
    29  enforcement officer or prosecuting attorney shall prepare an application
    30  for  filing  on  the next day. The law enforcement officer releasing the
    31  juvenile shall serve the juvenile and his or her parent or guardian with
    32  written notice that an order shall be issued by the family court on  the
    33  next  court  day  prohibiting the juvenile from entering any place where
    34  the crime occurred including a buffer  zone  surrounding  the  place  or
    35  modifications  as  provided by subdivision two of section 740.10 of this
    36  article. The court shall issue such order on the first court day follow-
    37  ing the release of the juvenile. If  the  restraints  contained  in  the
    38  court  order  differ  from  the  restraints contained in the notice, the
    39  order shall not be effective until the third  court  day  following  the
    40  issuance  of  the  order. The juvenile may apply to the court to stay or
    41  modify the order on the grounds set forth in subdivision one of  section
    42  740.10 of this article.
    43  § 740.10 Restraining order -- exceptions, content, distribution, modifi-
    44             cations.
    45    1. The court may forego issuing a restraining order for which applica-
    46  tion  has  been  made  only  if  the  defendant establishes by clear and
    47  convincing evidence that: (a) the defendant lawfully resides at  or  has
    48  legitimate  business  on  or  near  the place, or otherwise legitimately
    49  needs to enter the place. In such an event, the court shall not issue an
    50  order pursuant to this article unless the  court  is  clearly  convinced
    51  that  the  need to bar the person from the place in order to protect the
    52  public safety and the rights, safety and health  of  the  residents  and
    53  persons  working in the place outweighs the person's interest in return-
    54  ing to the place. If the balance of the interest of the person  and  the
    55  public  so  warrants,  the  court may issue an order imposing conditions
    56  upon the person's entry at, upon or near the place; or

        S. 7880                            11

     1    (b) the issuance of an order would cause undue  hardship  to  innocent
     2  persons  and  would  constitute  a serious injustice which overrides the
     3  need to protect the rights, safety and health of persons residing in  or
     4  having business in the place.
     5    2.  A restraining order issued pursuant to this article shall describe
     6  the place from which the person has been barred and any conditions  upon
     7  the person's entry into the place, with sufficient specificity to enable
     8  the person to guide his conduct accordingly and to enable a law enforce-
     9  ment  officer  to  enforce  the order. The order shall also prohibit the
    10  person from entering an area of up to five hundred feet surrounding  the
    11  place,  unless the court rules that a different buffer zone would better
    12  effectuate the purposes of this act. In the discretion of the court, the
    13  order may contain modifications to permit the person to enter  the  area
    14  during  specified  times for specified purposes such as attending school
    15  during regular school hours. When appropriate, the court may  append  to
    16  the order a map depicting the place. The person shall be given a copy of
    17  the  restraining  order  and  any  appended map and shall acknowledge in
    18  writing the receipt thereof.
    19    3. (a) The court shall provide notice of the restraining order to  the
    20  local law enforcement agency where the arrest occurred and to the county
    21  district attorney.
    22    (b)  Prior  to  the person's conviction or adjudication of delinquency
    23  for a criminal offense, the local law enforcement agency may post a copy
    24  of any orders issued pursuant to this article, or an  equivalent  notice
    25  containing  the  terms  of  the order, upon one or more of the principal
    26  entrances of the place or in any other conspicuous location. Such  post-
    27  ing shall be for the purpose of informing the public, and the failure to
    28  post  a  copy  of  the order shall in no way excuse any violation of the
    29  order.
    30    (c) Prior to the person's conviction or  adjudication  of  delinquency
    31  for a criminal offense, any law enforcement agency may publish a copy of
    32  any  orders  issued  pursuant  to  this article, or an equivalent notice
    33  containing the terms of the order, in a  newspaper  circulating  in  the
    34  area of the restraining order. Such publication shall be for the purpose
    35  of  informing the public, and the failure to publish a copy of the order
    36  shall in no way excuse any violation of the order.
    37    (d) Prior to the person's conviction or  adjudication  of  delinquency
    38  for a criminal offense, any law enforcement agency may distribute copies
    39  of  any  orders issued pursuant to this article, or an equivalent notice
    40  containing the terms of the order, to residents  or  businesses  located
    41  within  the  area delineated in the order or, in the case of a school or
    42  any government-owned property, to the appropriate administrator,  or  to
    43  any  tenant association representing the residents of the affected area.
    44  Such publication shall be for the purpose of informing the  public,  and
    45  the  failure  to  publish a copy of the order shall in no way excuse any
    46  violation of the order.
    47    4. When a person is convicted of or  adjudicated  delinquent  for  any
    48  criminal  offense described in this article, the court, upon application
    49  of a law enforcement officer  or  prosecuting  attorney  and  except  as
    50  provided in subdivision one of this section, shall, by separate order or
    51  within the judgment of conviction, issue an order prohibiting the person
    52  from  entering  any  place  where the crime occurred, including a buffer
    53  zone surrounding the place or modifications as provided  by  subdivision
    54  two  of  this  section.  Upon the person's conviction or adjudication of
    55  delinquency for a criminal offense described  in  this  article,  a  law
    56  enforcement  agency, in addition to posting, publishing and distributing

        S. 7880                            12
 
     1  the order or an equivalent notice pursuant to paragraphs (b),  (c),  and
     2  (d)  of  subdivision  three  of this section, may also post, publish and
     3  distribute a photograph of the person.
     4    5.  When  a juvenile has been adjudicated delinquent for an act which,
     5  if committed by an adult, would be a criminal offense, in addition to an
     6  order required by subdivision four of this section or any other disposi-
     7  tion authorized by law, the court may order the juvenile and any parent,
     8  guardian or any family member over whom the court  has  jurisdiction  to
     9  take such actions or obey such restraints as may be necessary to facili-
    10  tate  the  rehabilitation of the juvenile or to protect public safety or
    11  to safeguard or enforce the rights of residents of the place. The  court
    12  may commit the juvenile to the care of the office of children and family
    13  services  until such time as the juvenile reaches the age of eighteen or
    14  until the order  of  removal  and  restraint  expires,  whichever  first
    15  occurs, or to such alternative residential placement as is practicable.
    16    6.  An  order  issued pursuant to section 740.00 of this article shall
    17  remain in effect until the case has been adjudicated  or  dismissed,  or
    18  for not less than two years, whichever is less. An order issued pursuant
    19  to  subdivision  four  of  this  section shall remain in effect for such
    20  period of time as shall be fixed by the court but not  longer  than  the
    21  maximum  terms  of  imprisonment or incarceration allowed by law for the
    22  underlying offense or offenses. When  the  court  issues  a  restraining
    23  order  pursuant  to  subdivision  four of this section and the person is
    24  also sentenced to any form of probationary supervision, the court  shall
    25  make  continuing  compliance  with  the  order  an  express condition of
    26  probation. When the person has been sentenced to a  term  of  incarcera-
    27  tion,  continuing  compliance with the terms and conditions of the order
    28  shall be made an express condition of the person's release from confine-
    29  ment or incarceration on parole. At the time of sentencing  or,  in  the
    30  case of a juvenile, at the time of disposition of the juvenile case, the
    31  court  shall  advise  the  defendant  that  the  restraining order shall
    32  include a fixed time period in  accordance  with  this  subdivision  and
    33  shall  include  that  provision  in the judgment of conviction, disposi-
    34  tional order, separate order or order vacating an  existing  restraining
    35  order,  to  the  law  enforcement agency that made the arrest and to the
    36  county district attorney.
    37    7. All applications to stay or modify an order issued pursuant to this
    38  section shall be made in supreme  court.  The  court  shall  immediately
    39  notify  the  county district attorney in writing whenever an application
    40  is made to stay or modify an order issued pursuant to this  section.  If
    41  the  court  does  not issue a restraining order, the sentence imposed by
    42  the court for a criminal offense as defined in this  article  shall  not
    43  become  final  for ten days in order to permit the appeal of the court's
    44  findings by the prosecution.
    45    8. Nothing in this article shall be construed in any way to limit  the
    46  authority  of  the  court  to  take  such other actions or to issue such
    47  orders as may be necessary to protect the public safety or to  safeguard
    48  or enforce the rights of others with respect to the place.
    49    9.  Notwithstanding any other provision of this article, the court may
    50  permit the person to return to the place to obtain  personal  belongings
    51  and  effects and, by court order, may restrict the time and duration and
    52  provide for police supervision of such visit.
    53  § 740.15 Certification of offense location.
    54    The court shall issue a restraining order  pursuant  to  this  article
    55  only  upon  request by a law enforcement officer or prosecuting district

        S. 7880                            13
 
     1  attorney and submission of a certification describing  the  location  of
     2  the offense.
     3  § 740.20 Discretion to not seek restraining order.
     4    A   law  enforcement  or  prosecuting  district  attorney  shall  have
     5  discretion to not seek a restraining order if the defendant  is  charged
     6  with  an  offense  resulting  from the stop of a motor vehicle or if the
     7  defendant was using public transportation.
     8    § 2. This act shall take effect on the ninetieth day  after  it  shall
     9  have become a law.
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