Requires orders of protection and temporary orders of protection to be served upon the attorney representing the respondent; requires attorneys to accept service of such orders addressed to a client, and to provide notice thereof and the terms therein to the client.
STATE OF NEW YORK
________________________________________________________________________
7233
2011-2012 Regular Sessions
IN ASSEMBLY
April 19, 2011
___________
Introduced by M. of A. N. RIVERA, SCARBOROUGH, COOK, CASTRO, AUBRY,
CRESPO, LINARES, ARROYO, MENG, STEVENSON -- Multi-Sponsored by -- M.
of A. BARRON, CLARK, CROUCH, GABRYSZAK, V. LOPEZ, McDONOUGH, McENENY,
J. MILLER, M. MILLER, MOYA, PERRY, RAMOS, J. RIVERA, P. RIVERA, RODRI-
GUEZ, SALADINO, SAYWARD, WEPRIN -- read once and referred to the
Committee on Judiciary
AN ACT to amend the family court act and the criminal procedure law, in
relation to requiring the service of temporary orders of protection
and orders of protection upon the attorney representing the respondent
or defendant
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 154-d of the family court act, as added by chapter
2 186 of the laws of 1997, is amended to read as follows:
3 § 154-d. Emergency powers; local criminal courts. 1. Issuance of
4 temporary orders of protection. Upon the request of the petitioner, a
5 local criminal court may on an ex parte basis issue a temporary order of
6 protection pending a hearing in family court, provided that a sworn
7 affidavit, certified in accordance with subdivision one of section
8 100.30 of the criminal procedure law is submitted: (i) alleging that the
9 family court is not in session; (ii) alleging that a family offense, as
10 defined in subdivision one of section eight hundred twelve of this act
11 or subdivision one of section 530.11 of the criminal procedure law, has
12 been committed; (iii) alleging that a family offense petition has been
13 filed or will be filed in family court on the next day the court is in
14 session; and (iv) showing good cause. Upon appearance in a local crimi-
15 nal court, the petitioner shall be advised that he or she may continue
16 with the proceeding either in family court or, upon the filing of a
17 local criminal court accusatory instrument, in criminal court or both.
18 Upon issuance of a temporary order of protection where petitioner
19 requests that it be returnable in family court, the local criminal court
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09663-02-1
A. 7233 2
1 shall transfer the matter forthwith to the family court and shall make
2 the matter returnable in family court on the next day the family court
3 is in session, or as soon thereafter as practicable, but in no event
4 more than four calendar days after issuance of the order. The local
5 criminal court, upon issuing a temporary order of protection returnable
6 in family court pursuant to this subdivision shall immediately forward
7 in a manner designed to ensure arrival before the return date set in the
8 order, a copy of the temporary order of protection and sworn affidavit
9 to the family court and shall provide a copy of such temporary order of
10 protection to the petitioner; provided, however, that if the temporary
11 order of protection and affidavit are transmitted by facsimile or other
12 electronic means, the original order and affidavit shall be forwarded to
13 the family court immediately thereafter. Any temporary order of
14 protection issued pursuant to this subdivision shall be issued to the
15 respondent and the attorney representing the respondent, and copies
16 shall be filed as required in subdivisions six and eight of section
17 530.12 of the criminal procedure law for orders of protection issued
18 pursuant to such section. No attorney shall refuse to accept any such
19 order addressed to his or her respondent client, and such attorney shall
20 immediately provide notice to his or her client of the issuance of the
21 order and the terms of such order. Any temporary order of protection
22 issued pursuant to this subdivision shall plainly state the date that
23 such order expires which, in the case of an order returnable in family
24 court, shall be not more than four calendar days after its issuance,
25 unless sooner vacated or modified by the family court. A petitioner
26 requesting a temporary order of protection returnable in family court
27 pursuant to this subdivision in a case in which a family court petition
28 has not been filed shall be informed that such temporary order of
29 protection shall expire as provided for herein, unless the petitioner
30 files a petition pursuant to subdivision one of section eight hundred
31 twenty-one of this act on or before the return date in family court and
32 the family court issues a temporary order of protection as authorized
33 under article eight of this act. Nothing in this subdivision shall limit
34 or restrict the petitioner's right to proceed directly and without court
35 referral in either a criminal or family court, or both, as provided for
36 in section one hundred fifteen of this act and section 100.07 of the
37 criminal procedure law.
38 2. Modifications of orders of protection or temporary orders of
39 protection. Upon the request of the petitioner, a local criminal court
40 may on an ex parte basis modify a temporary order of protection or order
41 of protection which has been issued under article four, five, six or
42 eight of this act pending a hearing in family court, provided that a
43 sworn affidavit, verified in accordance with subdivision one of section
44 100.30 of the criminal procedure law, is submitted: (i) alleging that
45 the family court is not in session and (ii) showing good cause, includ-
46 ing a showing that the existing order is insufficient for the purposes
47 of protection of the petitioner, the petitioner's child or children or
48 other members of the petitioner's family or household. The local crimi-
49 nal court shall make the matter regarding the modification of the order
50 returnable in family court on the next day the family court is in
51 session, or as soon thereafter as practicable, but in no event more than
52 four calendar days after issuance of the modified order. The local crim-
53 inal court shall immediately forward, in a manner designed to ensure
54 arrival before the return date set in the order, a copy of the modified
55 order if any and sworn affidavit to the family court and shall provide a
56 copy of such modified order, if any, and affidavit to the petitioner;
A. 7233 3
1 provided, however, that if the modified order and affidavit are trans-
2 mitted to the family court by facsimile or other electronic means, the
3 original copy of such modified order and affidavit shall be forwarded to
4 the family court immediately thereafter. Any modified temporary order of
5 protection or order of protection issued pursuant to this subdivision
6 shall be issued to the respondent and the attorney representing the
7 respondent, and copies shall be filed as provided in subdivisions six
8 and eight of section 530.12 of the criminal procedure law for orders of
9 protection issued pursuant to such section. No attorney shall refuse to
10 accept any such order addressed to his or her respondent client, and
11 such attorney shall immediately provide notice to his or her client of
12 the issuance of the order and the terms of such order.
13 § 2. Subdivision 1 of section 168 of the family court act, as amended
14 by chapter 416 of the laws of 1981, is amended to read as follows:
15 1. In any case in which an order of protection or temporary order of
16 protection has been made by the family court, the clerk of the court
17 shall issue a copy of such order to the petitioner [and], the
18 respondent, the attorney representing the respondent and to any other
19 person affected by the order. No attorney shall refuse to accept any
20 such order addressed to his or her respondent client, and such attorney
21 shall immediately provide notice to his or her client of the issuance of
22 the order and the terms of such order. The presentation of a copy of an
23 order of protection or temporary order of protection or a warrant or a
24 certificate of warrant to any peace officer, acting pursuant to his or
25 her special duties, or police officer shall constitute authority for him
26 or her to arrest a person charged with violating the terms of such order
27 of protection or temporary order of protection and bring such person
28 before the court and, otherwise, so far as lies within his or her power,
29 to aid in securing the protection such order was intended to afford,
30 provided, however, that any outstanding, unexpired certificate of order
31 of protection or temporary order of protection shall have the same force
32 and effect as a copy of such order or temporary order.
33 § 3. Subdivisions 3-a, 3-b and 8 of section 530.12 of the criminal
34 procedure law, subdivisions 3-a and 3-b as added by chapter 186 of the
35 laws of 1997 and subdivision 8 as amended by section 81 of subpart B of
36 part C of chapter 62 of the laws of 2011, are amended to read as
37 follows:
38 3-a. Emergency powers when family court not in session; issuance of
39 temporary orders of protection. Upon the request of the petitioner, a
40 local criminal court may on an ex parte basis issue a temporary order of
41 protection pending a hearing in family court, provided that a sworn
42 affidavit, verified in accordance with subdivision one of section 100.30
43 of this chapter, is submitted: (i) alleging that the family court is not
44 in session; (ii) alleging that a family offense, as defined in subdivi-
45 sion one of section eight hundred twelve of the family court act and
46 subdivision one of section 530.11 of this article, has been committed;
47 (iii) alleging that a family offense petition has been filed or will be
48 filed in family court on the next day the court is in session; and (iv)
49 showing good cause. Upon appearance in a local criminal court, the peti-
50 tioner shall be advised that he or she may continue with the proceeding
51 either in family court or upon the filing of a local criminal court
52 accusatory instrument in criminal court or both. Upon issuance of a
53 temporary order of protection where petitioner requests that it be
54 returnable in family court, the local criminal court shall transfer the
55 matter forthwith to the family court and shall make the matter return-
56 able in family court on the next day the family court is in session, or
A. 7233 4
1 as soon thereafter as practicable, but in no event more than four calen-
2 dar days after issuance of the order. The local criminal court, upon
3 issuing a temporary order of protection returnable in family court
4 pursuant to this subdivision, shall immediately forward, in a manner
5 designed to insure arrival before the return date set in the order, a
6 copy of the temporary order of protection and sworn affidavit to the
7 family court and shall provide a copy of such temporary order of
8 protection to the petitioner; provided, however, that where a copy of
9 the temporary order of protection and affidavit are transmitted to the
10 family court by facsimile or other electronic means, the original order
11 and affidavit shall be forwarded to the family court immediately there-
12 after. Any temporary order of protection issued pursuant to this subdi-
13 vision shall be issued to the respondent and the attorney representing
14 the respondent, and copies shall be filed as required in subdivisions
15 six and eight of this section for orders of protection issued pursuant
16 to this section. No attorney shall refuse to accept any such order
17 addressed to his or her respondent client, and such attorney shall imme-
18 diately provide notice to his or her client of the issuance of the order
19 and the terms of such order. Any temporary order of protection issued
20 pursuant to this subdivision shall plainly state the date that such
21 order expires which, in the case of an order returnable in family court,
22 shall be not more than four calendar days after its issuance, unless
23 sooner vacated or modified by the family court. A petitioner requesting
24 a temporary order of protection returnable in family court pursuant to
25 this subdivision in a case in which a family court petition has not been
26 filed shall be informed that such temporary order of protection shall
27 expire as provided for herein, unless the petitioner files a petition
28 pursuant to subdivision one of section eight hundred twenty-one of the
29 family court act on or before the return date in family court and the
30 family court issues a temporary order of protection or order of
31 protection as authorized under article eight of the family court act.
32 Nothing in this subdivision shall limit or restrict the petitioner's
33 right to proceed directly and without court referral in either a crimi-
34 nal or family court, or both, as provided for in section one hundred
35 fifteen of the family court act and section 100.07 of this chapter.
36 3-b. Emergency powers when family court not in session; modifications
37 of orders of protection or temporary orders of protection. Upon the
38 request of the petitioner, a local criminal court may on an ex parte
39 basis modify a temporary order of protection or order of protection
40 which has been issued under article four, five, six or eight of the
41 family court act pending a hearing in family court, provided that a
42 sworn affidavit verified in accordance with subdivision one of section
43 100.30 of this chapter is submitted: (i) alleging that the family court
44 is not in session and (ii) showing good cause, including a showing that
45 the existing order is insufficient for the purposes of protection of the
46 petitioner, the petitioner's child or children or other members of the
47 petitioner's family or household. The local criminal court shall make
48 the matter regarding the modification of the order returnable in family
49 court on the next day the family court is in session, or as soon there-
50 after as practicable, but in no event more than four calendar days after
51 issuance of the modified order. The court shall immediately forward a
52 copy of the modified order, if any, and sworn affidavit to the family
53 court and shall provide a copy of such modified order, if any, and affi-
54 davit to the petitioner; provided, however, that where copies of such
55 modified order and affidavit are transmitted to the family court by
56 facsimile or other electronic means, the original copies of such modi-
A. 7233 5
1 fied order and affidavit shall be forwarded to the family court imme-
2 diately thereafter. Any modified temporary order of protection or order
3 of protection issued pursuant to this subdivision shall be issued to the
4 respondent and the attorney representing the respondent and copies shall
5 be filed as required in subdivisions six and eight of this section for
6 orders of protection issued pursuant to this section. No attorney shall
7 refuse to accept any such order addressed to his or her respondent
8 client, and such attorney shall immediately provide notice to his or her
9 client of the issuance of the order and the terms of such order.
10 8. In any proceeding in which an order of protection or temporary
11 order of protection or a warrant has been issued under this section, the
12 clerk of the court shall issue to the complainant and defendant and
13 defense counsel and to any other person affected by the order a copy of
14 the order of protection or temporary order of protection and ensure that
15 a copy of the order of protection or temporary order of protection be
16 transmitted to the local correctional facility where the individual is
17 or will be detained, the state or local correctional facility where the
18 individual is or will be imprisoned, and the supervising probation
19 department or department of corrections and community supervision where
20 the individual is under probation or parole supervision. No defense
21 counsel shall refuse to accept any such order addressed to his or her
22 client, and such counsel shall immediately provide notice to the defend-
23 ant of the issuance of the order and the terms of such order. The pres-
24 entation of a copy of such order or a warrant to any peace officer
25 acting pursuant to his or her special duties or police officer shall
26 constitute authority for him or her to arrest a person who has violated
27 the terms of such order and bring such person before the court and,
28 otherwise, so far as lies within his or her power, to aid in securing
29 the protection such order was intended to afford.
30 § 4. Subdivision 6 of section 530.13 of the criminal procedure law, as
31 amended by section 82 of subpart B of part C of chapter 62 of the laws
32 of 2011, is amended to read as follows:
33 6. In any proceeding in which an order of protection or temporary
34 order of protection or a warrant has been issued under this section, the
35 clerk of the court shall issue to the victim and the defendant and
36 defense counsel and to any other person affected by the order, a copy of
37 the order of protection or temporary order of protection and ensure that
38 a copy of the order of protection or temporary order of protection be
39 transmitted to the local correctional facility where the individual is
40 or will be detained, the state or local correctional facility where the
41 individual is or will be imprisoned, and the supervising probation
42 department or department of corrections and community supervision where
43 the individual is under probation or parole supervision. No defense
44 counsel shall refuse to accept any such order addressed to his or her
45 client, and such counsel shall immediately provide notice to the defend-
46 ant of the issuance of the order and the terms of such order. The pres-
47 entation of a copy of such order or a warrant to any police officer or
48 peace officer acting pursuant to his or her special duties shall consti-
49 tute authority for him or her to arrest a person who has violated the
50 terms of such order and bring such person before the court and, other-
51 wise, so far as lies within his or her power, to aid in securing the
52 protection such order was intended to afford.
53 § 5. This act shall take effect on the first of October next succeed-
54 ing the date on which it shall have become a law.
