Establishes domestic abuse offenses for assaults upon spouses, former spouses, fellow parents of a child in common and domestic partners; provides for issuance of a special information for domestic abuse in the first degree requiring a predicate criminal conviction; designates such domestic abuse offenses as family offenses for purposes of the criminal procedure law and the family court act.
STATE OF NEW YORK
________________________________________________________________________
2243
2021-2022 Regular Sessions
IN ASSEMBLY
January 14, 2021
___________
Introduced by M. of A. CUSICK, O'DONNELL -- read once and referred to
the Committee on Codes
AN ACT to amend the penal law, in relation to establishing domestic
abuse offenses; to amend the criminal procedure law, in relation to
providing for a special information in the indictment of certain felo-
ny domestic abuse offenses and procedures for determining whether
domestic abuse misdemeanors are crimes of domestic violence for
purposes of federal law; and to amend the criminal procedure law and
the family court act, in relation to including domestic abuse in the
first and second degrees as family offenses
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 three new sections
2 120.75, 120.80 and 120.85 to read as follows:
3 § 120.75 Definitions; domestic abuse.
4 For the purposes of sections 120.80 and 120.85 of this article:
5 1. "Domestic partner" shall mean a person who is living or has lived
6 together with another person for an extended duration in an intimate
7 relationship marked by sexual, physical or financial interdependence.
8 2. "Fellow parent of a child in common" shall mean a person who has a
9 child in common with another person regardless of whether such persons
10 were married or have lived together.
11 3. "Former spouse" shall mean a person formerly married to another
12 person regardless of whether such persons still reside in the same
13 household.
14 4. "Spouse" shall mean a person legally married to another person.
15 § 120.80 Domestic abuse in the second degree.
16 A person is guilty of domestic abuse in the second degree when, with
17 intent to harass, annoy or alarm his or her spouse, former spouse,
18 fellow parent of a child in common or domestic partner, he or she causes
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01228-01-1
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1 physical injury to such spouse, former spouse, fellow parent of a child
2 in common or domestic partner.
3 Domestic abuse in the second degree is a class A misdemeanor.
4 § 120.85 Domestic abuse in the first degree.
5 A person is guilty of domestic abuse in the first degree when:
6 1. With intent to cause physical injury to his or her spouse, former
7 spouse, fellow parent of a child in common or domestic partner, he or
8 she causes such injury to such spouse, former spouse, fellow parent of a
9 child in common or domestic partner, or to a third person; or
10 2. He or she recklessly causes physical injury to his or her spouse,
11 former spouse, fellow parent of a child in common or domestic partner;
12 or
13 3. With criminal negligence, he or she causes physical injury to his
14 or her spouse, former spouse, fellow parent of a child in common or
15 domestic partner by means of a deadly weapon or dangerous instrument; or
16 4. He or she commits a crime against his or her spouse, former spouse,
17 fellow parent of a child in common or domestic partner, and he or she
18 has previously been convicted of a crime against his or her spouse,
19 former spouse, fellow parent of a child in common or domestic partner
20 within the preceding five years. The person against whom a crime has
21 been committed for purposes of culpability under this subdivision may be
22 a different person than whom the predicate crime was committed against
23 during the preceding five years. For purposes of this subdivision, any
24 period of time during which the defendant was incarcerated for any
25 reason between the commission of any previous crimes and the commission
26 of the crime in violation of this subdivision shall be excluded and such
27 five year period shall be extended by the period or period of time
28 during which the defendant was incarcerated.
29 Domestic abuse in the first degree is a class E felony.
30 § 2. The criminal procedure law is amended by adding a new section
31 200.64 to read as follows:
32 § 200.64 Indictment; special information for domestic abuse offender.
33 1. Whenever a person is charged with the commission or attempted
34 commission of domestic abuse in the first degree as defined in subdivi-
35 sion four of section 120.85 of the penal law, an indictment or informa-
36 tion for such offense shall be accompanied by a special information,
37 filed by the district attorney with the court, alleging that the defend-
38 ant was previously convicted of a crime, that at the time of the previ-
39 ous crime or at an earlier time the defendant was the spouse, former
40 spouse, fellow parent of a child in common or domestic partner, as
41 defined in section 120.75 of the penal law of the victim of such crime,
42 and that such previous conviction took place within the time period
43 specified in subdivision four of section 120.85 of the penal law.
44 Except as provided in this section, the people may not refer to such
45 special information during trial nor adduce any evidence concerning the
46 allegations therein.
47 2. At any time before the close of the people's case, the court, in
48 the absence of the jury, must arraign the defendant upon such informa-
49 tion and advise him or her that he or she may admit each such allega-
50 tion, deny any such allegation or remain mute with respect to any such
51 allegation. Depending upon the defendant's response, the trial of the
52 indictment or information must then proceed as follows:
53 (a) (i) If the previous conviction is of domestic abuse in the second
54 degree as defined by section 120.80 of the penal law, and the defendant
55 admits the previous conviction or that it took place within the time
56 period specified in subdivision four of section 120.85 of the penal law,
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1 the admitted allegation or allegations shall be deemed established for
2 all subsequent purposes, including sentencing pursuant to section 70.00
3 of the penal law. The court must submit the case to the jury as if the
4 admitted allegation or allegations were not elements of the offense. The
5 court may not submit to the jury any lesser included offense which is
6 distinguished from the offense charged solely by the fact that the
7 previous conviction is not an element thereof.
8 (ii) If the defendant denies the previous conviction or remains mute
9 with respect to it, the people may prove that element of the offense
10 before the jury as a part of their case.
11 (iii) If the defendant denies that the previous conviction took place
12 within the time period specified in subdivision four of section 120.85
13 of the penal law, or remains mute with respect to that matter, the
14 people may prove, beyond a reasonable doubt, before the jury as part of
15 their case, that the previous conviction took place within the time
16 period specified.
17 (b) (i) If the previous conviction is for a crime other than domestic
18 abuse in the second degree as defined by section 120.80 of the penal
19 law, and the defendant admits the previous conviction, that it took
20 place within the time period specified in subdivision four of section
21 120.85 of the penal law, or that the defendant was the spouse, former
22 spouse, fellow parent of a child in common or domestic partner as
23 defined in section 120.75 of the penal law of the victim of such crime,
24 the admitted allegation or allegations shall be deemed established for
25 all subsequent purposes, including sentencing pursuant to section 70.00
26 of the penal law. The court must submit the case to the jury as if the
27 admitted allegation or allegations were not elements of the offense. The
28 court may not submit to the jury any lesser included offense which is
29 distinguished from the offense charged solely by the fact that the
30 previous conviction is not an element thereof.
31 (ii) If the defendant denies the previous conviction or remains mute
32 with respect to it, the people may prove that element of the offense
33 before the jury as a part of their case.
34 (iii) If the defendant denies that the previous conviction took place
35 within the time period specified in subdivision four of section 120.85
36 of the penal law, or remains mute with respect to that matter, the
37 people may prove, beyond a reasonable doubt, before the jury as part of
38 their case, that the previous conviction took place within the time
39 period specified.
40 (iv) If the defendant denies that the defendant was the spouse, former
41 spouse, fellow parent of a child in common or domestic partner as
42 defined in section 120.75 of the penal law of the victim of such previ-
43 ous crime, or remains mute with respect to that matter, the people may
44 prove that element of the offense before the jury as a part of their
45 case.
46 3. Notwithstanding subdivision one, and subparagraph (i) of paragraph
47 (a) and subparagraph (i) of paragraph (b) of subdivision two of this
48 section, if evidence regarding the prior conviction, or that the defend-
49 ant was the spouse, former spouse, fellow parent of a child in common or
50 domestic partner as defined in section 120.75 of the penal law of the
51 victim of such previous crime, is relevant to help prove the crime or
52 crimes charged in the indictment or information, such evidence shall be
53 admissible.
54 4. A determination pursuant to this section that the defendant has a
55 previous conviction, that at the time of the prior offense the defendant
56 was the spouse, former spouse, fellow parent of a child in common or
A. 2243 4
1 domestic partner as defined in section 120.75 of the penal law of the
2 victim of such previous crime, or that the previous conviction took
3 place within the time period specified in subdivision four of section
4 120.85 of the penal law, shall be binding in any future proceeding in
5 which the issue may arise unless the conviction for the domestic abuse
6 offense charged in the indictment or information is vacated or reversed.
7 § 3. Subdivision 1 of section 370.15 of the criminal procedure law, as
8 amended by section 1 of part Q of chapter 55 of the laws of 2020, is
9 amended to read as follows:
10 1. When a defendant has been charged with assault in the third degree,
11 menacing in the third degree, menacing in the second degree, domestic
12 abuse in the second degree, criminal obstruction of breathing or blood
13 circulation, unlawful imprisonment in the second degree, coercion in the
14 third degree, criminal tampering in the third degree, criminal contempt
15 in the second degree, harassment in the first degree, aggravated harass-
16 ment in the second degree, criminal trespass in the third degree, crimi-
17 nal trespass in the second degree, arson in the fifth degree, or attempt
18 to commit any of the above-listed offenses, the people shall, at
19 arraignment or no later than forty-five days after arraignment, serve on
20 the defendant and file with the court a notice alleging that the defend-
21 ant and the person alleged to be the victim of such crime were members
22 of the same family or household as defined in subdivision one of section
23 530.11 of this chapter.
24 § 4. Section 380.97 of the criminal procedure law, as added by chapter
25 60 of the laws of 2018, is amended to read as follows:
26 § 380.97 Notification to division of criminal justice services of
27 certain misdemeanor convictions.
28 Upon judgment of conviction of assault in the third degree, menacing
29 in the third degree, menacing in the second degree, domestic abuse in
30 the second degree, criminal obstruction of breathing or blood circu-
31 lation, unlawful imprisonment in the second degree, coercion in the
32 third degree, criminal tampering in the third degree, criminal contempt
33 in the second degree, harassment in the first degree, or aggravated
34 harassment in the second degree, criminal trespass in the third degree,
35 criminal trespass in the second degree, arson in the fifth degree, or
36 attempt to commit any of the above-listed offenses, when the defendant
37 and victim have been determined, pursuant to section 370.15 of this
38 part, to be members of the same family or household as defined in subdi-
39 vision one of section 530.11 of this chapter, the clerk of the court
40 shall include notification and a copy of the written determination in a
41 report of such conviction to the division of criminal justice services
42 to enable the division to report such determination to the Federal
43 Bureau of Investigation and assist the bureau in identifying persons
44 prohibited from purchasing and possessing a firearm or other weapon due
45 to conviction of an offense specified in paragraph [c] (c) of subdivi-
46 sion seventeen of section 265.00 of the penal law.
47 § 5. The opening paragraph of subdivision 1 of section 530.11 of the
48 criminal procedure law, as amended by chapter 109 of the laws of 2019,
49 is amended to read as follows:
50 The family court and the criminal courts shall have concurrent juris-
51 diction over any proceeding concerning acts which would constitute
52 disorderly conduct, unlawful dissemination or publication of an intimate
53 image, harassment in the first degree, harassment in the second degree,
54 aggravated harassment in the second degree, domestic abuse in the first
55 degree, domestic abuse in the second degree, sexual misconduct, forcible
56 touching, sexual abuse in the third degree, sexual abuse in the second
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1 degree as set forth in subdivision one of section 130.60 of the penal
2 law, stalking in the first degree, stalking in the second degree, stalk-
3 ing in the third degree, stalking in the fourth degree, criminal
4 mischief, menacing in the second degree, menacing in the third degree,
5 reckless endangerment, strangulation in the first degree, strangulation
6 in the second degree, criminal obstruction of breathing or blood circu-
7 lation, assault in the second degree, assault in the third degree, an
8 attempted assault, identity theft in the first degree, identity theft in
9 the second degree, identity theft in the third degree, grand larceny in
10 the fourth degree, grand larceny in the third degree, coercion in the
11 second degree or coercion in the third degree as set forth in subdivi-
12 sions one, two and three of section 135.60 of the penal law between
13 spouses or former spouses, or between parent and child or between
14 members of the same family or household except that if the respondent
15 would not be criminally responsible by reason of age pursuant to section
16 30.00 of the penal law, then the family court shall have exclusive
17 jurisdiction over such proceeding. Notwithstanding a complainant's
18 election to proceed in family court, the criminal court shall not be
19 divested of jurisdiction to hear a family offense proceeding pursuant to
20 this section. For purposes of this section, "disorderly conduct"
21 includes disorderly conduct not in a public place. For purposes of this
22 section, "members of the same family or household" with respect to a
23 proceeding in the criminal courts shall mean the following:
24 § 6. The opening paragraph of subdivision 1 of section 812 of the
25 family court act, as amended by chapter 109 of the laws of 2019, is
26 amended to read as follows:
27 The family court and the criminal courts shall have concurrent juris-
28 diction over any proceeding concerning acts which would constitute
29 disorderly conduct, unlawful dissemination or publication of an intimate
30 image, harassment in the first degree, harassment in the second degree,
31 aggravated harassment in the second degree, domestic abuse in the first
32 degree, domestic abuse in the second degree, sexual misconduct, forcible
33 touching, sexual abuse in the third degree, sexual abuse in the second
34 degree as set forth in subdivision one of section 130.60 of the penal
35 law, stalking in the first degree, stalking in the second degree, stalk-
36 ing in the third degree, stalking in the fourth degree, criminal
37 mischief, menacing in the second degree, menacing in the third degree,
38 reckless endangerment, criminal obstruction of breathing or blood circu-
39 lation, strangulation in the second degree, strangulation in the first
40 degree, assault in the second degree, assault in the third degree, an
41 attempted assault, identity theft in the first degree, identity theft in
42 the second degree, identity theft in the third degree, grand larceny in
43 the fourth degree, grand larceny in the third degree, coercion in the
44 second degree or coercion in the third degree as set forth in subdivi-
45 sions one, two and three of section 135.60 of the penal law between
46 spouses or former spouses, or between parent and child or between
47 members of the same family or household except that if the respondent
48 would not be criminally responsible by reason of age pursuant to section
49 30.00 of the penal law, then the family court shall have exclusive
50 jurisdiction over such proceeding. Notwithstanding a complainant's
51 election to proceed in family court, the criminal court shall not be
52 divested of jurisdiction to hear a family offense proceeding pursuant to
53 this section. In any proceeding pursuant to this article, a court shall
54 not deny an order of protection, or dismiss a petition, solely on the
55 basis that the acts or events alleged are not relatively contemporaneous
56 with the date of the petition, the conclusion of the fact-finding or the
A. 2243 6
1 conclusion of the dispositional hearing. For purposes of this article,
2 "disorderly conduct" includes disorderly conduct not in a public place.
3 For purposes of this article, "members of the same family or household"
4 shall mean the following:
5 § 7. This act shall take effect on the first of November next succeed-
6 ing the date on which it shall have become a law.
