NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5751
SPONSOR: Giglio TITLE OF BILL: An act to amend the penal law, in relation to acts of
domestic violence committed in the presence of children
PURPOSE OR GENERAL IDEA OF BILL:
To provide a harsher penalty for committing a domestic violence crime in
the presence of a child who is 15 years of age or younger.
SUMMARY OF PROVISIONS:
Section 1: Amends the Penal Law by adding a new Article 261, "Offenses
Relating to A Member of the Same Household or Family" comprised of two
sections: § 261.00, Specified Offenses Against a Member of the Same
Family or Household and § 261.05, Sentencing.Subdivision 1 of § 261.00:
states that a person commits a domestic violence crime when he or she
intentionally commits or intends to commit, a specified offense against
a member of the same family or household. Subdivision 2 of § 261.00:
sets forth the specified offenses, the commission of which provides the
basis for a domestic violence crime prosecution.Subdivision 3 of §
261.00: defines member of the same family or house- hold.§ 261.05:
provides that when a person is found guilty of a domestic violence
offense pursuant to this Article, and the specified offense occurs in
the presence of a child 15 years of age or younger, the penal- ty shall
be a class E felony, which shall be served consecutively to any sentence
imposed for the underlying specified offense.Section 2: Amends subdivi-
sion 2 of Section 70.25 of the Penal Law to authorize the imposition of
a consecutive sentence when one or more of the sentences is for a
conviction under Article 261.Section 3: Effective Date.
JUSTIFICATION:
To better understand the complex issue of domestic violence, the Assem-
bly Republican Task Force on Preventing Domestic Violence held a number
of forums throughout the State that provided a comprehensive examination
of the challenges faced by domestic violence victims and the entities
that assist them. One obvious takeaway from these forums was the devas-
tating impact that domestic violence has on the children who witness it
Experts say the effects of witnessing violence is the same as experienc-
ing it. These children are more likely to suffer as adults from
addiction and other health problems and become victims or perpetrators
of violence. We must hold domestic abusers accountable for the negative
impact their destructive behavior has on the children who witness these
incidents. This bill provides that when a person is found guilty of a
domestic violence offense and the specified offense occurs in the pres-
ence of a child 15 years of age or younger, the penalty shall be a class
E felony, which shall be served consecutively to any sentence imposed
for the underlying specified offense. At least 24 states and Puerto Rico
have enacted laws addressing domestic violence committed in front of
children. The children of New York State deserve no less.
PRIOR LEGISLATIVE HISTORY:
2017-18 A.8810
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
This act shall take effect on the thirtieth day after it shall have
become a law.
STATE OF NEW YORK
________________________________________________________________________
5751
2019-2020 Regular Sessions
IN ASSEMBLY
February 14, 2019
___________
Introduced by M. of A. GIGLIO, BARCLAY, BRABENEC, CROUCH, DeSTEFANO,
FINCH, GOODELL, HAWLEY, KOLB, LAWRENCE, McDONOUGH, MIKULIN, B. MILLER,
MORINELLO, NORRIS, PALMESANO, REILLY, SMITH, TAGUE, WALSH -- read once
and referred to the Committee on Codes
AN ACT to amend the penal law, in relation to acts of domestic violence
committed in the presence of children
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The penal law is amended by adding a new article 261 to
2 read as follows:
3 ARTICLE 261
4 OFFENSES RELATING TO A MEMBER OF THE SAME FAMILY OR HOUSEHOLD
5 Section 261.00 Specified offenses against a member of the same family or
6 household.
7 261.05 Sentencing.
8 § 261.00 Specified offenses against a member of the same family or
9 household.
10 1. A person commits a domestic violence crime when he or she inten-
11 tionally commits or intends to commit a specified offense against a
12 member of the same family or household.
13 2. A "specified offense" is an offense defined by any of the following
14 provisions of this chapter: section 120.00 (assault in the third
15 degree); section 120.05 (assault in the second degree); section 120.10
16 (assault in the first degree); section 120.13 (menacing in the first
17 degree); section 120.14 (menacing in the second degree); section 120.15
18 (menacing in the third degree); section 120.20 (reckless endangerment in
19 the second degree); section 120.25 (reckless endangerment in the first
20 degree); section 120.45 (stalking in the fourth degree); section 120.50
21 (stalking in the third degree); section 120.55 (stalking in the second
22 degree); section 120.60 (stalking in the first degree); section 121.11
23 (criminal obstruction of breathing or blood circulation); section 121.12
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06937-01-9
A. 5751 2
1 (strangulation in the second degree); section 121.13 (strangulation in
2 the first degree); subdivision one of section 125.15 (manslaughter in
3 the second degree); subdivision one, two or four of section 125.20
4 (manslaughter in the first degree); section 125.25 (murder in the second
5 degree); section 130.20 (sexual misconduct); section 130.30 (rape in the
6 second degree); section 130.35 (rape in the first degree); section
7 130.40 (criminal sexual act in the third degree); section 130.45 (crimi-
8 nal sexual act in the second degree); section 130.50 (criminal sexual
9 act in the first degree); section 130.52 (forcible touching); section
10 130.53 (persistent sexual abuse); section 130.55 (sexual abuse in the
11 third degree); section 130.60 (sexual abuse in the second degree);
12 section 130.65 (sexual abuse in the first degree); section 130.66
13 (aggravated sexual abuse in the third degree); section 130.67 (aggra-
14 vated sexual abuse in the second degree); section 130.70 (aggravated
15 sexual abuse in the first degree); section 130.91 (sexually motivated
16 felony); section 130.95 (predatory sexual assault); section 130.96
17 (predatory sexual assault against a child); section 135.05 (unlawful
18 imprisonment in the second degree); section 135.10 (unlawful imprison-
19 ment in the first degree); section 135.60 (coercion in the second
20 degree); section 135.65 (coercion in the first degree); section 140.20
21 (burglary in the third degree); section 140.25 (burglary in the second
22 degree); section 140.30 (burglary in the first degree); section 145.00
23 (criminal mischief in the fourth degree); section 145.05 (criminal
24 mischief in the third degree); section 145.10 (criminal mischief in the
25 second degree); section 145.12 (criminal mischief in the first degree);
26 section 145.14 (criminal tampering in the third degree); section 215.50
27 (criminal contempt in the second degree); section 215.51 (criminal
28 contempt in the first degree); section 215.52 (aggravated criminal
29 contempt); section 240.20 (disorderly conduct); section 240.25 (harass-
30 ment in the first degree); section 240.26 (harassment in the second
31 degree); subdivision one, two or four of section 240.30 (aggravated
32 harassment in the second degree); aggravated family offense as defined
33 in this section or any attempt or conspiracy to commit any of the fore-
34 going offenses where the defendant and the person against whom the
35 offense was committed were members of the same family or household as
36 defined in subdivision one of section 530.11 of the criminal procedure
37 law.
38 3. For purposes of this section, a member of the same family or house-
39 hold shall mean the following individuals:
40 (a) persons related by consanguinity or affinity;
41 (b) persons legally married to one another;
42 (c) persons formerly married to one another regardless of whether they
43 still reside in the same household;
44 (d) persons who have a child in common regardless of whether such
45 persons are married or have lived together at any time; or
46 (e) unrelated persons who are continually or at regular intervals
47 living in the same household or who have in the past continually or at
48 regular intervals lived in the same household.
49 § 261.05 Sentencing.
50 A person who is found guilty of a domestic violence offense pursuant
51 to this article, and the specified offense occurs in the presence of a
52 child aged fifteen years or less, shall be guilty of a class E felony.
53 Any sentence imposed pursuant to a conviction under this section is to
54 be served consecutive to any sentence imposed for the underlying
55 offense.
A. 5751 3
1 § 2. Subdivision 2 of section 70.25 of the penal law, as amended by
2 chapter 56 of the laws of 1984, is amended to read as follows:
3 2. When more than one sentence of imprisonment is imposed on a person
4 for two or more offenses committed through a single act or omission, or
5 through an act or omission which in itself constituted one of the
6 offenses and also was a material element of the other, the sentences,
7 except if one or more of such sentences is for a violation of section
8 270.20 of this chapter, must run concurrently. Provided, however, that
9 if one or more of such sentences is for a conviction under article two
10 hundred sixty-one of this chapter, the sentence may run consecutively.
11 § 3. This act shall take effect on the thirtieth day after it shall
12 have become a law.
