NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A1877
SPONSOR: Paulin (MS) TITLE OF BILL: An act to amend the criminal procedure law, in
relation to determining the expiration date of an order of protection
PURPOSE OF BILL: This bill would amend certain sections of the crimi-
nal procedure law with respect to the duration of orders of protection.
SUMMARY OF SPECIFIC PROVISIONS: Section one amends the opening para-
graph of subdivision 5 of section 530.12 of the criminal procedure law,
as amended by section 1 of chapter 9 of the laws of 2011, to provide for
the entering of an order of protection upon sentencing on a conviction
of any crime or violation between former spouses, in addition to between
spouses, parent and child or between members of the same family or
household. In addition, this section provides that in the case of a
felony conviction, where the sentence is 'or includes a sentence of
probation on a conviction for a felony sexual assault, as defined in
subdivision three of section 65.00 of the penal law, the court shall fix
the duration of an order of protection at ten years from the date of
such sentencing, In the case of a conviction for a class A misdemeanor,
where the sentence is or includes a sentence of probation on a
conviction for a class a misdemeanor sexual assault, as defined in
subdivision 3 of section 65.00 of the penal law, the duration of an
order of protection shall be fixed at six years from the date of such
sentencing.
This section further provides that in calculating-the expiration date of
the maximum term of an indeterminate or the term of a determinate
sentence of imprisonment actually imposed, the court shall disregard any
jail time credit that may be applied against the defendant's sentence,
and shall, in,addition, with respect to a determinate sentence, calcu-
late the expiration date of the term of such sentence by adding the full
term of the imprisonment portion of such sentence as imposed by the
court and the full period of post-release supervision imposed in accord-
ance with subdivision 2 of section 70,45 of the penal law.
Section two amends the opening paragraph of subdivision 5 of section
530.12 of the criminal procedure law, as amended by section 2 of chapter
9 of the laws of 2011, to provide for the entering of an order of
protection upon sentencing on a conviction of any crime or violation
between former spouses, in addition to between spouses, parent and child
or between members of the same family or household. In addition, this
section provides that in the case of a felony conviction, the court
shall fix the duration of an order of protection at not more than the
greater of (I) eight years from the date of sentencing, except where the
sentence is or includes a sentence of probation on a conviction for a
felony sexual assault, as defined in subdivision 3 of section 65.00 of
the penal law, in which case, ten years from the date of such sentenc-
ing, or (ii) eight years from the date of the expiration of the maximum
term of an indeterminate or the term of a determinate sentence of impri-
sonment actually imposed. In the case of a conviction for a class A
misdemeanor, the duration of an order of protection shall be fixed at
not more than the greater of (i) five years from the date of sentencing,
except where the sentence is or includes a sentence of probation on a
conviction for a class A misdemeanor sexual assault, as defined in
subdivision 3 of section 65.00 of the penal law, in which case six years
from the date of such sentencing, or (ii) five years from the date of
expiration of the maximum term of a definite or intermittent term actu-
ally imposed. In the case of a conviction for any other offense, the
duration of an order of protection shall not exceed the greater of (i)
two years from the date of sentencing, or (ii) two years from the date
of the expiration of the maximum term of a definite or intermittent term
actually imposed.
This section further provides that in calculating the expiration date of
the maximum term of an indeterminate or the term of a determinate
sentence of imprisonment actually imposed, the court shall disregard any
jail time credit that may be applied against the defendant's sentence,
and shall, in addition, with respect to 'a determinate sentence, calcu-
late the' expiration date of the term of such sentence by adding the
full term of the imprisonment portion of such sentence as imposed by the
court and the full period of post release supervision imposed in accord-
ance with subdivision 2 of section 70.45 of the penal law.
Section three amends the opening paragraph of subdivision 4 of section
530.13 of the criminal procedure law, as amended by section 3 of chapter
9 of the laws of 2011, to provide that in the case of a felony
conviction, where the sentence is or includes a sentence of probation on
a conviction for a felony sexual assault, as defined in subdivision
"three of section 65.00 of the penal law, the court shall fix the dura-
tion of an order of protection at ten years from the date of such
sentencing. In addition, in the case of a conviction for a class A
misdemeanor, where the sentence is or includes a sentence of probation
on a conviction for a class a Misdemeanor sexual assault, as defined in
subdivision 3 of section 65.00 of the penal law, the duration of an
order of protection shall be fixed at six years from the date of such
sentencing.
This section further provides that in calculating the expiration date of
the maximum term of an indeterminate or the term of a determinate
sentence of imprisonment actually imposed, the court shall disregard any
jail time credit that may be applied against the defendant's sentence,
and shall, in addition, with respect to a determinate sentence, calcu-
late the expiration-date of the term of such sentence by adding the full
term of the imprisonment portion of such sentence as imposed by the
court and the full period of post-release supervision imposed in accord-
ance with subdivision 2 of section 70.45 of the penal law.
Section four amends the opening paragraph of subdivision 4 of section
530.13 of the criminal procedure law, as amended by section 4 of chapter
9 of the laws of 2011, to provide that where an order of protection is
issued, in the case of a felony conviction, the court shall fix the
duration of the. order at not more than the greater of (i) eight years
from the date of sentencing, except where the sentence is or includes a
sentence Of probation on a conviction for a felony sexual assault, as
defined in subdivision 3 of section 65.00 of the penal law, in which
case, ten years from the date of such sentencing, or (ii) eight years
from the date of the expiration of the maximum term of an indeterminate
or the term of a determinate sentence of imprisonment actually imposed.
In the case of a conviction for a class A misdemeanor, the duration of
an order of protection shall be fixed at not more than the greater of
(i) five years from the date of sentencing, except where the sentence is
or includes a sentence of probation on a conviction for a class A misde-
meanor sexual assault, as defined-in subdivision 3 of section 65.00 of
the penal law, in which case six years from the date of such sentencing,
or (ii) five years from the date of expiration of the maximum term of a
definite or intermittent term actually imposed. In the case of a
conviction for any other offense, the duration of an order of protection
shall not exceed the greater of (i) two years from the date of sentenc-
ing, or (ii) two years from the date of the expiration of the maximum
term of a definite or intermittent term actually imposed,
This section further provides that in calculating the expiration date of
the maximum term of an indeterminate or the term of a determinate
sentence of imprisonment actually imposed, the court shall disregard any
jail time credit that may be applied against the defendant's sentence,
and shall, in addition, with respect to a determinate sentence, calcu-
late the expiration date of the term of such sentence by adding the full
term of the imprisonment portion of such sentence as imposed by the
court and the full period of post-release supervision imposed in accord-
ance with subdivision 2 of section 70.45 of the penal law.
Section five establishes an effective date of thirty days after becoming
law, and would apply to all criminal actions whenever commenced provided
the sentence therein has not been imposed prior to such date; provided,
however, that the amendments to the opening paragraphs of subdivision 5
of section 530.12 and subdivision 4 of section 530.13 of the criminal
procedure law made by sections one and three of this act shall be
subject to the expiration and reversion of such paragraphs when upon
such date the provisions of sections two and four of this act shall take
effect.
JUSTIFICATION:; In 2006, the criminal procedure law was amended to
extend the permissible-duration of a final order of protection issued in
criminal cases. However, the amendments did not account fully for the
statutorily 'required longer probation periods for class A misdemeanor
sexual assault convictions and felony sexual assault convictions. Thus,
when a final order of protection is issued on a sexual
assault"conviction where probation is imposed, the order will expire
before the defendant has completed. his probation. This bill would amend
CPL sections 530.12(5) and 530.13(4) to provide that the duration of a
final order of protection issued in a case where the defendant is
convicted of sexual assault and probation is ordered, or is ordered as
part of his. sentence, a final order of protection shall not exceed ten
years in the case of a felon sexual assault, or six years in the case of
a class A. misdemeanor sexual assault.
In addition, this bill will simplify the process of calculating the
maximum permissible duration of a final order of protection. The law
requires every order of protection issued under sections 530.12 and
530.13 to "plainly state the date that such order expires." CPL sections
530.12(6) and 530.13(5). The provisions for calculating the maximum
permissible duration of a final order of protection seem relatively
straightforward, but can be difficult to apply, especially in cases
where the order is imposed in conjunction with a prison sentence. A
court, for example, that imposes a determinate or indeterminate sentence
Of imprisonment, must, in determining the exact expiration date of the
term or maximum term of such sentence for purposes of calculating the
maximum permissible expiration date of a final order of protection, take
into account any jail time credit the defendant may have earned prior to
sentence.. See, generally, People v. Nieves, 2 N.Y.3d 310 (2004). The
exact amount of jail time credit a defendant has earned, however, is
ordinarily not available to the court at the time of sentencing. Id., at
317. This may result in the court setting an expiration date on the
order of protection that exceeds the statutory maximum, thus requiring
that the defendant be returned to the sentencing court (once the correct
jail credit information is obtained by the Department of Corrections) so
the order can be amended and a new (i.e. earlier) expiration date set.
As with the original order of protection, a copy of the amended order
must then be provided to the protected party or parties and to the
appropriate law enforcement authorities. See,.generally, CPL sections
530.12(6) and (8); and 530.13(5) and (6).
This bill would eliminate the need for this cumbersome and costly proce-
dure by amending CPL sections 530.12(5) and 530.13(4) to expressly
provide that, for purposes of calculating the maximum permissible dura-
tion of a final order of protection, the sentencing court "shall disre-
gard any jail time credit that may be applied against the defendant's
sentence." In addition, the bill would amend these same two CPL
provisions to clarify that, for purposes of calculating the maximum
expiration date of a final order of protection, the expiration date of a
term of a determinate sentence shall be calculated by adding the full
term of the imprisonment portion of such sentence as imposed by the
court and the full period of post-release supervision imposed. The
latter amendment, which codifies a 2002 ruling of the Appellate Divi-
sion, Third Department (see, People v. Goodband, 291 A.D.2d 584 3d
Dept., 2002; but See, People v. Wheeler, 268 A.D.2d 448 2d Dept., 2000,
leave to appeal denied, 94 N.Y.2d 926), is intended to both clarify the
law in this area and further simplify the process of calculating the
maximum permissible expiration date of a final order of protection
issued in a case where a determinate sentence is imposed. Together,
these amendments will help to ensure that all orders of protection
"Contain specific and correct expiration dates to provide certainty for
defendants, the protected victims and witnesses, and law enforcement
authorities who may be called to enforce them." Nieves, supra., at 317.
Finally, this bill makes a technical amendment to the opening sentence
of subdivision five of CPL section 530.12 to clarify that a final order
of protection may also be issued under that subdivision where the
conviction is for a crime or violation between former spouses. See, CPL
section 530.12(13) providing, in relevant part, that a temporary or
final order of protection issued under that section "may be entered
against a former spouse"; and CPL section 530.11 (1) (c) including with-
in the definition of "members of the same family or household" "persons
formerly married to one another."
This bill will take effect thirty days after it becomes law, and would
apply to all criminal actions whenever commenced provided sentence ther-
ein has not been imposed prior to such date; provided, however, that the
amendments to the opening paragraphs of subdivision 5 of. section
530.12 and subdivision 4 of section 530.13 of the criminal procedure law
made by sections one and three of this act shall be subject to the expi-
ration and reversion of such paragraphs when upon such date the
provisions of sections two and four of this act shall take effect.
LEGISLATIVE HISTORY: A.87, 2011 and 2012 referred to Codes. Same as
S.888, 2011 passed Senate, and 2012 referred to Children and Families.
A.776-A, 2009 and 2010 referred to Codes. Same as S.4591, 2009 and 2010
referred to Codes. A.6824, 2007 and 2008 referred to Codes. Same as
S.4693, 2007 and 2008 passed Senate.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE: This act shall take effect thirty days after becoming
law, and would apply to all criminal actions whenever commenced provided
sentence therein has not been imposed prior to such date; provided,
however, that the amendments to the opening paragraphs of subdivision 5
of section 530.12 and subdivision 4 of section 530.13 of the criminal
procedure law made by sections one and three of this act shall be
subject to the expiration and reversion of such paragraphs when upon
such date the provisions of sections two and four of this act shall take
effect.
