STATE OF NEW YORK
________________________________________________________________________
4727
2021-2022 Regular Sessions
IN ASSEMBLY
February 5, 2021
___________
Introduced by M. of A. MIKULIN -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the domestic relations law, the family court act and the
criminal procedure law, in relation to requiring mandatory prison
sentences for violators of orders of protection
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph h of subdivision 3 of section 240 of the domestic
2 relations law, as amended by chapter 1 of the laws of 2013, is amended
3 to read as follows:
4 h. Upon issuance of an order of protection or temporary order of
5 protection or upon a violation of such order, the court shall make a
6 determination regarding the suspension and revocation of a license to
7 carry, possess, repair or dispose of a firearm or firearms, ineligibil-
8 ity for such a license and the surrender of firearms in accordance with
9 sections eight hundred forty-two-a and eight hundred forty-six-a of the
10 family court act, as applicable. Upon issuance of an order of protection
11 pursuant to this section or upon a finding of a violation thereof, the
12 court also may direct payment of restitution in an amount not to exceed
13 ten thousand dollars in accordance with subdivision (e) of section eight
14 hundred forty-one of such act; provided, however, that in no case shall
15 an order of restitution be issued where the court determines that the
16 party against whom the order would be issued has already compensated the
17 injured party or where such compensation is incorporated in a final
18 judgment or settlement of the action. If the person so violating the
19 order has been found to have violated such order on one occasion, and
20 this violation consisted of committing a family offense as defined in
21 subdivision one of section eight hundred twelve of the family court act
22 or subdivision one of section 530.11 of the criminal procedure law, the
23 court shall commit such person to a term of imprisonment of no less than
24 five days, which may be served upon certain specified days or parts of
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07736-01-1
A. 4727 2
1 days as the court may direct. If the person so violating the order has
2 been found to have violated such order on two occasions, and this
3 violation consisted of committing a family offense as defined in subdi-
4 vision one of section eight hundred twelve of the family court act or
5 subdivision one of section 530.11 of the criminal procedure law, the
6 court shall commit such person to a term of imprisonment of no less than
7 fifteen days, which may be served upon certain specified days or parts
8 of days as the court may direct. If the person so violating the order
9 has been found to have violated such order on three or more occasions,
10 and this violation consisted of committing a family offense as defined
11 in subdivision one of section eight hundred twelve of the family court
12 act or subdivision one of section 530.11 of the criminal procedure law,
13 the court shall commit such person to a term of imprisonment of no less
14 than thirty days, which may be served upon certain specified days or
15 parts of days as the court may direct.
16 § 2. Subdivision 9 of section 252 of the domestic relations law, as
17 amended by chapter 1 of the laws of 2013, is amended to read as follows:
18 9. Upon issuance of an order of protection or temporary order of
19 protection or upon a violation of such order, the court shall make a
20 determination regarding the suspension and revocation of a license to
21 carry, possess, repair or dispose of a firearm or firearms, ineligibil-
22 ity for such a license and the surrender of firearms in accordance with
23 sections eight hundred forty-two-a and eight hundred forty-six-a of the
24 family court act, as applicable. Upon issuance of an order of protection
25 pursuant to this section or upon a finding of a violation thereof, the
26 court also may direct payment of restitution in an amount not to exceed
27 ten thousand dollars in accordance with subdivision (e) of section eight
28 hundred forty-one of such act; provided, however, that in no case shall
29 an order of restitution be issued where the court determines that the
30 party against whom the order would be issued has already compensated the
31 injured party or where such compensation is incorporated in a final
32 judgment or settlement of the action. If the person so violating the
33 order has been found to have violated such order on one occasion, and
34 this violation consisted of committing a family offense as defined in
35 subdivision one of section eight hundred twelve of the family court act
36 or subdivision one of section 530.11 of the criminal procedure law, the
37 court shall commit such person to a term of imprisonment of no less than
38 five days, which may be served upon certain specified days or parts of
39 days as the court may direct. If the person so violating the order has
40 been found to have violated such order on two occasions, and this
41 violation consisted of committing a family offense as defined in subdi-
42 vision one of section eight hundred twelve of the family court act or
43 subdivision one of section 530.11 of the criminal procedure law, the
44 court shall commit such person to a term of imprisonment of no less than
45 fifteen days, which may be served upon certain specified days or parts
46 of days as the court may direct. If the person so violating the order
47 has been found to have violated such order on three or more occasions,
48 and this violation consisted of committing a family offense as defined
49 in subdivision one of section eight hundred twelve of the family court
50 act or subdivision one of section 530.11 of the criminal procedure law,
51 the court shall commit such person to a term of imprisonment of no less
52 than thirty days, which may be served upon certain specified days or
53 parts of days as the court may direct.
54 § 3. Section 846-a of the family court act, as amended by chapter 1 of
55 the laws of 2013, is amended to read as follows:
A. 4727 3
1 § 846-a. Powers on failure to obey order. If a respondent is brought
2 before the court for failure to obey any lawful order issued under this
3 article or an order of protection or temporary order of protection
4 issued pursuant to this act or issued by a court of competent jurisdic-
5 tion of another state, territorial or tribal jurisdiction and if, after
6 hearing, the court is satisfied by competent proof that the respondent
7 has willfully failed to obey any such order, the court may modify an
8 existing order or temporary order of protection to add reasonable condi-
9 tions of behavior to the existing order, make a new order of protection
10 in accordance with section eight hundred forty-two of this part, may
11 order the forfeiture of bail in a manner consistent with article five
12 hundred forty of the criminal procedure law if bail has been ordered
13 pursuant to this act, may order the respondent to pay the petitioner's
14 reasonable and necessary counsel fees in connection with the violation
15 petition where the court finds that the violation of its order was will-
16 ful, and may commit the respondent to jail for a term not to exceed six
17 months. If the respondent has been found by competent proof to have
18 willfully failed to obey such order of protection on one occasion, and
19 this willful failure consisted of committing a family offense as defined
20 in subdivision one of section eight hundred twelve of this article or
21 subdivision one of section 530.11 of the criminal procedure law, the
22 court shall commit such person to a term of imprisonment of no less than
23 five days. If the respondent has been found by competent proof to have
24 willfully failed to obey such order of protection on two occasions, and
25 this willful failure consisted of committing a family offense as defined
26 in subdivision one of section eight hundred twelve of this article or
27 subdivision one of section 530.11 of the criminal procedure law, the
28 court shall commit such person to a term of imprisonment of no less than
29 fifteen days. If the respondent has been found by competent proof to
30 have willfully failed to obey such order of protection on three or more
31 occasions, and this willful failure consisted of committing a family
32 offense as defined in subdivision one of section eight hundred twelve of
33 this article or subdivision one of section 530.11 of the criminal proce-
34 dure law, the court shall commit such person to a term of imprisonment
35 of no less than thirty days. Such commitment may be served upon certain
36 specified days or parts of days as the court may direct, and the court
37 may, at any time within the term of such sentence, revoke such suspen-
38 sion and commit the respondent for the remainder of the original
39 sentence, or suspend the remainder of such sentence. If the court deter-
40 mines that the willful failure to obey such order involves violent
41 behavior constituting the crimes of menacing, reckless endangerment,
42 assault or attempted assault and if such a respondent is licensed to
43 carry, possess, repair and dispose of firearms pursuant to section
44 400.00 of the penal law, the court may also immediately revoke such
45 license and may arrange for the immediate surrender pursuant to subpara-
46 graph (f) of paragraph one of subdivision a of section 265.20 and subdi-
47 vision six of section 400.05 of the penal law, and disposal of any
48 firearm such respondent owns or possesses. If the willful failure to
49 obey such order involves the infliction of physical injury as defined in
50 subdivision nine of section 10.00 of the penal law or the use or threat-
51 ened use of a deadly weapon or dangerous instrument, as those terms are
52 defined in subdivisions twelve and thirteen of section 10.00 of the
53 penal law, such revocation and immediate surrender pursuant to subpara-
54 graph (f) of paragraph one of subdivision a of section 265.20 and subdi-
55 vision six of section 400.05 of the penal law [six] and disposal of any
A. 4727 4
1 firearm owned or possessed by respondent shall be mandatory, pursuant to
2 subdivision eleven of section 400.00 of the penal law.
3 § 4. Subdivision 11 of section 530.12 of the criminal procedure law,
4 as amended by section 15 of part JJJ of chapter 59 of the laws of 2019,
5 is amended to read as follows:
6 11. If a defendant is brought before the court for failure to obey any
7 lawful order issued under this section, or an order of protection issued
8 by a court of competent jurisdiction in another state, territorial or
9 tribal jurisdiction, and if, after hearing, the court is satisfied by
10 competent proof that the defendant has willfully failed to obey any such
11 order, (a) the court may:
12 [(a)] (i) revoke an order of recognizance or release under non-mone-
13 tary conditions or revoke an order of bail or order forfeiture of such
14 bail and commit the defendant to custody; or
15 [(b)] (ii) restore the case to the calendar when there has been an
16 adjournment in contemplation of dismissal and commit the defendant to
17 custody; or
18 [(c)] (iii) revoke a conditional discharge in accordance with section
19 410.70 of this chapter and impose probation supervision or impose a
20 sentence of imprisonment in accordance with the penal law based on the
21 original conviction; or
22 [(d)] (iv) revoke probation in accordance with section 410.70 of this
23 chapter and impose a sentence of imprisonment in accordance with the
24 penal law based on the original conviction. In addition, if the act
25 which constitutes the violation of the order of protection or temporary
26 order of protection is a crime or a violation the defendant may be
27 charged with and tried for that crime or violation; and
28 (b) if the court finds that the defendant has willfully failed to obey
29 such order of protection on one occasion, and this willful failure
30 consisted of committing a family offense as defined in subdivision one
31 of this section or subdivision one of section eight hundred twelve of
32 the family court act, the court shall commit such person to a term of
33 imprisonment of no less than five days, which may be served upon certain
34 specified days or parts of days as the court may direct. If the court
35 finds that the defendant has willfully failed to obey such order of
36 protection on two occasions, and this willful failure consisted of
37 committing a family offense as defined in subdivision one of this
38 section or subdivision one of section eight hundred twelve of the family
39 court act, the court shall commit such person to a term of imprisonment
40 of no less than fifteen days, which may be served upon certain specified
41 days or parts of days as the court may direct. If the court finds that
42 the defendant has willfully failed to obey such order of protection on
43 three or more occasions, and this willful failure consisted of commit-
44 ting a family offense as defined in subdivision one of this section or
45 subdivision one of section eight hundred twelve of the family court act,
46 the court shall commit such person to a term of imprisonment of no less
47 than thirty days, which may be served upon certain specified days or
48 parts of days as the court may direct.
49 § 5. Subdivision 8 of section 530.13 of the criminal procedure law, as
50 added by chapter 388 of the laws of 1984, paragraph (a) as amended by
51 section 13 of part JJJ of chapter 59 of the laws of 2019, is amended to
52 read as follows:
53 8. If a defendant is brought before the court for failure to obey any
54 lawful order issued under this section and if, after hearing, the court
55 is satisfied by competent proof that the defendant has willfully failed
56 to obey any such order, (a) the court may:
A. 4727 5
1 [(a)] (i) revoke an order of recognizance, release under non-monetary
2 conditions or bail and commit the defendant to custody; or
3 [(b)] (ii) restore the case to the calendar when there has been an
4 adjournment in contemplation of dismissal and commit the defendant to
5 custody or impose or increase bail pending a trial of the original crime
6 or violation; or
7 [(c)] (iii) revoke a conditional discharge in accordance with section
8 410.70 of this chapter and impose probation supervision or impose a
9 sentence of imprisonment in accordance with the penal law based on the
10 original conviction; or
11 [(d)] (iv) revoke probation in accordance with section 410.70 of this
12 chapter and impose a sentence of imprisonment in accordance with the
13 penal law based on the original conviction. In addition, if the act
14 which constitutes the violation of the order of protection or temporary
15 order of protection is a crime or a violation the defendant may be
16 charged with and tried for that crime or violation; and
17 (b) if the court finds that the defendant has willfully failed to obey
18 such order of protection on one occasion, and this willful failure
19 consisted of committing a family offense as defined in subdivision one
20 of section 530.11 of this article or subdivision one of section eight
21 hundred twelve of the family court act, the court shall commit such
22 person to a term of imprisonment of no less than five days, which may be
23 served upon certain specified days or parts of days as the court may
24 direct. If the court finds that the defendant has willfully failed to
25 obey such order of protection on two occasions, and this willful failure
26 consisted of committing a family offense as defined in subdivision one
27 of section 530.11 of this article or subdivision one of section eight
28 hundred twelve of the family court act, the court shall commit such
29 person to a term of imprisonment of no less than fifteen days, which may
30 be served upon certain specified days or parts of days as the court may
31 direct. If the court finds that the defendant has willfully failed to
32 obey such order of protection on three or more occasions, and this will-
33 ful failure consisted of committing a family offense as defined in
34 subdivision one of section 530.11 of this article or subdivision one of
35 section eight hundred twelve of the family court act, the court shall
36 commit such person to a term of imprisonment of no less than thirty
37 days, which may be served upon certain specified days or parts of days
38 as the court may direct.
39 § 6. This act shall take effect on the first of November next succeed-
40 ing the date on which it shall have become a law.
