Allows family and criminal courts to extend orders of protection for up to two years beyond the expiration date of an issued order of protection if the court finds reason for an extension and places such reasoning on the record.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5740
SPONSOR: Giglio TITLE OF BILL:
An act to amend the family court act and the criminal procedure law, in
relation to extensions of orders of protection
PURPOSE OR GENERAL IDEA OF BILL:
To aid victims of domestic violence who petition Family Court or crimi-
nal court for an order of protection.
SUMMARY OF PROVISIONS:
SECTION 1 EXTENDS, BY TWO ADDITIONAL YEARS, THE EXPIRATION DATE OF AN
ORDER OF PROTECTION GRANTED BY THE FAMILY COURT IF THE COURT FINDS AN
"EXTREME CASE." THE COURT MAY MAKE A FINDING OF AN EXTREME CASE WHERE:
(I) THERE IS A THREAT TO HARM THE PROTECTED PARTY, (:I) RESPONDENT HAS
BEEN FOUND GUILTY OF REPEATED CRIMINAL CONTEMPT DUE TO VIOLATIONS OF THE
ORDER OF PROTECTION, OR (III) RESPONDENT HAS CONTINUED TO EXPRESS INTENT
TO HARM, INTIMIDATE OR THREATEN THE PROTECTED PARTY. SECTIONS 2, 3, 4
AND 5 EXTEND, BY AN ADDITIONAL TWO YEARS, THE EXPIRATION DATE OF AN
ORDER OF PROTECTION ISSUED BY A CRIMINAL COURT IF THE COURT FINDS AN
"EXTREME CASE." THE COURT MAY MAKE A FINDING OF AN EXTREME CASE WHERE:
(I) THERE IS A THREAT TO HARM THE PROTECTED PARTY, (II) RESPONDENT HAS
BEEN FOUND GUILTY OF REPEATED CRIMINAL CONTEMPT DUE TO VIOLATIONS OF THE
ORDER OF PROTECTION, OR (III) RESPONDENT HAS CONTINUED TO EXPRESS INTENT
TO HARM, INTIMIDATE OR THREATEN THE PROTECTED PARTY.SECTION 6 ESTAB-
LISHES AN EFFECTIVE DATE.
JUSTIFICATION:
At times, there are qualifying circumstances when an order of protection
should be extended beyond the statutory period. For example, for the
safety of the victim, if there are multiple violations of the original
order of protection, an extension should be considered. Again, for the
safety of the victim, if there is evidence that the defendant has made
threats or expressed a desire to initiate contact with the victim once
the original order has expired, an extension should be considered. On a
case by case basis, the court must review the totality of the circum-
stances during the life of the original order, and if good cause is
found, the court should have the discretion to extend the order. Addi-
tionally, if at the expiration of an order of protection the defendant
is convicted of a criminal contempt charge, a new order can only be
issued for a six month period based on the conviction. For the safety of
all domestic violence victims, this should be brought in line with the
three-year/five-year provisions on the statutory provisions on orders of
protection.
PRIOR LEGISLATIVE HISTORY:
2017-18 A.8815
Under current law, the duration of an order of protection can be confus-
ing. For example, the duration of an order of protection issued by a
criminal court is fixed by the court. In the case of a felony
conviction, the order shall not exceed the greater of eight years from
the date of sentencing, or eight years from the date of the expiration
of the sentence of imprisonment actually imposed (except where the
sentence is or includes a sentence of probation on a conviction for a
felony sexual assault, in which case, the duration is fixed at 10 years
from the date of such sentencing). In the case of a conviction for a
class A misdemeanor, the duration of the order of protection shall not
exceed the greater of five years from the date of sentencing, or five
years from the date of the expiration of the sentence of imprisonment
actually imposed (except where the sentence is or includes a sentence of
probation on a conviction for a misdemeanor sexual assault, in which
case, the duration is fixed at six years from the date of such sentenc-
ing). In the case of a conviction for any other criminal offense, the
duration of the order of protection shall not exceed the greater of two
years from the date of sentencing, or two years from the date of the
expiration of the sentence of imprisonment actually imposed. Currently,
under the Family Court Act, New York permits final or permanent orders
of protection for up to two years, unless the court finds that aggravat-
ing circumstances exist or the court finds that the behavior set forth
in the family offense petition is a violation of an existing order.
Aggravating circumstances, pursuant to the Family Court Act, include:
injury, the use of weapons, a violent history, or repeated violations of
orders of protection, among other scenarios. One should note that the
duration of the order of protection is in addition to the length of time
that the temporary order of protection was in place. Thus, if the case
is adjudicated one year after a temporary order is issued, the combina-
tion of the temporary and final order of protection can be in existence
for three years without aggravating circumstances or a finding of a
violation.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
90 days after the bill becomes law.
STATE OF NEW YORK
________________________________________________________________________
5740
2019-2020 Regular Sessions
IN ASSEMBLY
February 14, 2019
___________
Introduced by M. of A. GIGLIO, BARCLAY, FINCH, GOODELL, HAWLEY, KOLB,
LAWRENCE, McDONOUGH, B. MILLER, MORINELLO, PALMESANO, REILLY, SAYEGH,
TAGUE -- read once and referred to the Committee on Codes
AN ACT to amend the family court act and the criminal procedure law, in
relation to extensions 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. Subdivision 1 of section 154-c of the family court act, as
2 added by chapter 186 of the laws of 1997, is amended to read as follows:
3 1. Expiration dates and extensions. (a) Any order of protection or
4 temporary order of protection issued under articles four, five, six and
5 eight of this act shall plainly state the date that such order expires.
6 (b) Any order of protection or temporary order of protection issued
7 under this act shall be extended for up to two years past the date that
8 such order expires if the court finds an extreme case for such extension
9 and states on the record the reasons for the extension. For purposes of
10 this paragraph, "extreme case" shall mean a threat of harm to the
11 protected party continues; respondent has been found guilty of repeated
12 criminal contempt due to a violation of an order of protection; respond-
13 ent has continued to express intent to commit harm to, intimidate or
14 threaten the protected party.
15 § 2. The opening paragraph of subdivision 5 of section 530.12 of the
16 criminal procedure law, as amended by chapter 240 of the laws of 2015,
17 is amended to read as follows:
18 Upon sentencing on a conviction for any crime or violation between
19 spouses, between a parent and child, or between members of the same
20 family or household as defined in subdivision one of section 530.11 of
21 this article, the court may in addition to any other disposition,
22 including a conditional discharge or youthful offender adjudication,
23 enter an order of protection. Where a temporary order of protection was
24 issued, the court shall state on the record the reasons for issuing or
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06939-01-9
A. 5740 2
1 not issuing an order of protection. The duration of such an order shall
2 be fixed by the court and: (A) in the case of a felony conviction, shall
3 not exceed the greater of: (i) eight years from the date of such
4 sentencing, except where the sentence is or includes a sentence of
5 probation on a conviction for a felony sexual assault, as provided in
6 subparagraph (iii) of paragraph (a) of subdivision three of section
7 65.00 of the penal law, in which case, ten years from the date of such
8 sentencing, or (ii) eight years from the date of the expiration of the
9 maximum term of an indeterminate or the term of a determinate sentence
10 of imprisonment actually imposed; or (B) in the case of a conviction for
11 a class A misdemeanor, shall not exceed the greater of: (i) five years
12 from the date of such sentencing, except where the sentence is or
13 includes a sentence of probation on a conviction for a misdemeanor sexu-
14 al assault, as provided in subparagraph (ii) of paragraph (b) of subdi-
15 vision three of section 65.00 of the penal law, in which case, six years
16 from the date of such sentencing, or (ii) five years from the date of
17 the expiration of the maximum term of a definite or intermittent term
18 actually imposed; or (C) in the case of a conviction for any other
19 offense, shall not exceed the greater of: (i) two years from the date of
20 sentencing, or (ii) two years from the date of the expiration of the
21 maximum term of a definite or intermittent term actually imposed. For
22 purposes of determining the duration of an order of protection entered
23 pursuant to this subdivision, a conviction shall be deemed to include a
24 conviction that has been replaced by a youthful offender adjudication.
25 Any order of protection entered pursuant to this section shall be
26 extended for up to two years past the date that such order expires if
27 the court finds an extreme case for such extension and states on the
28 record the reasons for the extension. For purposes of this paragraph,
29 "extreme case" shall mean a threat of harm to the protected party
30 continues; defendant has been found guilty of repeated criminal contempt
31 due to a violation of an order of protection; defendant has continued to
32 express intent to commit harm to, intimidate or threaten the protected
33 party. In addition to any other conditions, such an order may require
34 the defendant:
35 § 3. The opening paragraph of subdivision 5 of section 530.12 of the
36 criminal procedure law, as amended by section 2 of chapter 9 of the laws
37 of 2011, is amended to read as follows:
38 Upon sentencing on a conviction for any crime or violation between
39 spouses, between a parent and child, or between members of the same
40 family or household as defined in subdivision one of section 530.11 of
41 this article, the court may in addition to any other disposition,
42 including a conditional discharge or youthful offender adjudication,
43 enter an order of protection. Where a temporary order of protection was
44 issued, the court shall state on the record the reasons for issuing or
45 not issuing an order of protection. The duration of such an order shall
46 be fixed by the court and, in the case of a felony conviction, shall not
47 exceed the greater of: (i) five years from the date of such sentencing,
48 or (ii) three years from the date of the expiration of the maximum term
49 of an indeterminate sentence of imprisonment actually imposed; or in the
50 case of a conviction for a class A misdemeanor, shall not exceed three
51 years from the date of such sentencing; or in the case of a conviction
52 for any other offense, shall not exceed one year from the date of
53 sentencing. For purposes of determining the duration of an order of
54 protection entered pursuant to this subdivision, a conviction shall be
55 deemed to include a conviction that has been replaced by a youthful
56 offender adjudication. Any order of protection entered pursuant to this
A. 5740 3
1 section shall be extended for up to two years past the date that such
2 order expires if the court finds an extreme case for such extension and
3 states on the record the reasons for the extension. For purposes of this
4 paragraph, "extreme case" shall mean a threat of harm to the protected
5 party continues; defendant has been found guilty of repeated criminal
6 contempt due to a violation of an order of protection; defendant has
7 continued to express intent to commit harm to, intimidate or threaten
8 the protected party. In addition to any other conditions, such an order
9 may require the defendant:
10 § 4. The opening paragraph of subdivision 4 of section 530.13 of the
11 criminal procedure law, as amended by chapter 240 of the laws of 2015,
12 is amended to read as follows:
13 Upon sentencing on a conviction for any offense, where the court has
14 not issued an order of protection pursuant to section 530.12 of this
15 article, the court may, in addition to any other disposition, including
16 a conditional discharge or youthful offender adjudication, enter an
17 order of protection. Where a temporary order of protection was issued,
18 the court shall state on the record the reasons for issuing or not issu-
19 ing an order of protection. The duration of such an order shall be fixed
20 by the court and; (A) in the case of a felony conviction, shall not
21 exceed the greater of: (i) eight years from the date of such sentencing,
22 except where the sentence is or includes a sentence of probation on a
23 conviction for a felony sexual assault, as provided in subparagraph
24 (iii) of paragraph (a) of subdivision three of section 65.00 of the
25 penal law, in which case, ten years from the date of such sentencing, or
26 (ii) eight years from the date of the expiration of the maximum term of
27 an indeterminate or the term of a determinate sentence of imprisonment
28 actually imposed; or (B) in the case of a conviction for a class A
29 misdemeanor, shall not exceed the greater of: (i) five years from the
30 date of such sentencing, except where the sentence is or includes a
31 sentence of probation on a conviction for a misdemeanor sexual assault,
32 as provided in subparagraph (ii) of paragraph (b) of subdivision three
33 of section 65.00 of the penal law, in which case, six years from the
34 date of such sentencing or (ii) five years from the date of the expira-
35 tion of the maximum term of a definite or intermittent term actually
36 imposed; or (C) in the case of a conviction for any other offense, shall
37 not exceed the greater of: (i) two years from the date of sentencing, or
38 (ii) two years from the date of the expiration of the maximum term of a
39 definite or intermittent term actually imposed. For purposes of deter-
40 mining the duration of an order of protection entered pursuant to this
41 subdivision, a conviction shall be deemed to include a conviction that
42 has been replaced by a youthful offender adjudication. Any order of
43 protection entered pursuant to this section shall be extended for up to
44 two years past the date that such order expires if the court finds an
45 extreme case for such extension and states on the record the reasons for
46 the extension. For purposes of this paragraph, "extreme case" shall mean
47 a threat of harm to the protected party continues; defendant has been
48 found guilty of repeated criminal contempt due to a violation of an
49 order of protection; defendant has continued to express intent to commit
50 harm to, intimidate or threaten the protected party. In addition to any
51 other conditions such an order may require that the defendant:
52 § 5. The opening paragraph of subdivision 4 of section 530.13 of the
53 criminal procedure law, as amended by section 4 of chapter 9 of the laws
54 of 2011, is amended to read as follows:
55 Upon sentencing on a conviction for any offense, where the court has
56 not issued an order of protection pursuant to section 530.12 of this
A. 5740 4
1 article, the court may, in addition to any other disposition, including
2 a conditional discharge or youthful offender adjudication, enter an
3 order of protection. Where a temporary order of protection was issued,
4 the court shall state on the record the reasons for issuing or not issu-
5 ing an order of protection. The duration of such an order shall be fixed
6 by the court and, in the case of a felony conviction, shall not exceed
7 the greater of: (i) five years from the date of such sentencing, or (ii)
8 three years from the date of the expiration of the maximum term of an
9 indeterminate sentence of imprisonment actually imposed; or in the case
10 of a conviction for a class A misdemeanor, shall not exceed three years
11 from the date of such sentencing; or in the case of a conviction for any
12 other offense, shall not exceed one year from the date of sentencing.
13 For purposes of determining the duration of an order of protection
14 entered pursuant to this subdivision, a conviction shall be deemed to
15 include a conviction that has been replaced by a youthful offender adju-
16 dication. Any order of protection entered pursuant to this section shall
17 be extended for up to two years past the date that such order expires if
18 the court finds an extreme case for such extension and states on the
19 record the reasons for the extension. For purposes of this paragraph,
20 "extreme case" shall mean a threat of harm to the protected party
21 continues; defendant has been found guilty of repeated criminal contempt
22 due to a violation of an order of protection; defendant has continued to
23 express intent to commit harm to, intimidate or threaten the protected
24 party. In addition to any other conditions such an order may require
25 that the defendant:
26 § 6. This act shall take effect on the ninetieth day after it shall
27 have become a law; provided that the amendments to the opening paragraph
28 of subdivision 5 of section 530.12 of the criminal procedure law, made
29 by section two of this act, and the amendments to the opening paragraph
30 of subdivision 4 of section 530.13 of the criminal procedure law, made
31 by section four of this act, shall be subject to the expiration and
32 reversion of such paragraphs pursuant to subdivision d of section 74 of
33 chapter 3 of the laws of 1995, as amended, when upon such date the
34 provisions of sections three and five of this act shall take effect.
