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
________________________________________________________________________
3666--C
2011-2012 Regular Sessions
IN SENATE
March 1, 2011
___________
Introduced by Sens. LANZA, SAVINO -- read twice and ordered printed, and
when printed to be committed to the Committee on Codes -- committee
discharged, bill amended, ordered reprinted as amended and recommitted
to said committee -- recommitted to the Committee on Codes in accord-
ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
ordered reprinted as amended and recommitted to said committee --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
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.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09575-06-2
S. 3666--C 2
1 4. "Spouse" shall mean a person legally married to another person.
2 § 120.80 Domestic abuse in the second degree.
3 A person is guilty of domestic abuse in the second degree when, with
4 intent to harass, annoy or alarm his or her spouse, former spouse,
5 fellow parent of a child in common or domestic partner, he or she causes
6 physical injury to such spouse, former spouse, fellow parent of a child
7 in common or domestic partner.
8 Domestic abuse in the second degree is a class A misdemeanor.
9 § 120.85 Domestic abuse in the first degree.
10 A person is guilty of domestic abuse in the first degree when:
11 1. With intent to cause physical injury to his or her spouse, former
12 spouse, fellow parent of a child in common or domestic partner, he or
13 she causes such injury to such spouse, former spouse, fellow parent of a
14 child in common or domestic partner, or to a third person; or
15 2. He or she recklessly causes physical injury to his or her spouse,
16 former spouse, fellow parent of a child in common or domestic partner;
17 or
18 3. With criminal negligence, he or she causes physical injury to his
19 or her spouse, former spouse, fellow parent of a child in common or
20 domestic partner by means of a deadly weapon or dangerous instrument; or
21 4. He or she commits a crime against his or her spouse, former spouse,
22 fellow parent of a child in common or domestic partner, and he or she
23 has previously been convicted of a crime against his or her spouse,
24 former spouse, fellow parent of a child in common or domestic partner
25 within the preceding five years. The person against whom a crime has
26 been committed for purposes of culpability under this subdivision may be
27 a different person than whom the predicate crime was committed against
28 during the preceding five years. For purposes of this subdivision, any
29 period of time during which the defendant was incarcerated for any
30 reason between the commission of any previous crimes and the commission
31 of the crime in violation of this subdivision shall be excluded and such
32 five year period shall be extended by the period or period of time
33 during which the defendant was incarcerated.
34 Domestic abuse in the first degree is a class E felony.
35 § 2. The criminal procedure law is amended by adding a new section
36 200.63 to read as follows:
37 § 200.63 Indictment; special information for domestic abuse offender.
38 1. Whenever a person is charged with the commission or attempted
39 commission of domestic abuse in the first degree as defined in subdivi-
40 sion four of section 120.85 of the penal law, an indictment or informa-
41 tion for such offense shall be accompanied by a special information,
42 filed by the district attorney with the court, alleging that the defend-
43 ant was previously convicted of a crime, that at the time of the previ-
44 ous crime or at an earlier time the defendant was the spouse, former
45 spouse, fellow parent of a child in common or domestic partner, as
46 defined in section 120.75 of the penal law of the victim of such crime,
47 and that such previous conviction took place within the time period
48 specified in subdivision four of section 120.85 of the penal law.
49 Except as provided in this section, the people may not refer to such
50 special information during trial nor adduce any evidence concerning the
51 allegations therein.
52 2. At any time before the close of the people's case, the court, in
53 the absence of the jury, must arraign the defendant upon such informa-
54 tion and advise him or her that he or she may admit each such allega-
55 tion, deny any such allegation or remain mute with respect to any such
S. 3666--C 3
1 allegation. Depending upon the defendant's response, the trial of the
2 indictment or information must then proceed as follows:
3 (a) (i) If the previous conviction is of domestic abuse in the second
4 degree as defined by section 120.80 of the penal law, and the defendant
5 admits the previous conviction or that it took place within the time
6 period specified in subdivision four of section 120.85 of the penal law,
7 the admitted allegation or allegations shall be deemed established for
8 all subsequent purposes, including sentencing pursuant to section 70.00
9 of the penal law. The court must submit the case to the jury as if the
10 admitted allegation or allegations were not elements of the offense. The
11 court may not submit to the jury any lesser included offense which is
12 distinguished from the offense charged solely by the fact that the
13 previous conviction is not an element thereof.
14 (ii) If the defendant denies the previous conviction or remains mute
15 with respect to it, the people may prove that element of the offense
16 before the jury as a part of their case.
17 (iii) If the defendant denies that the previous conviction took place
18 within the time period specified in subdivision four of section 120.85
19 of the penal law, or remains mute with respect to that matter, the
20 people may prove, beyond a reasonable doubt, before the jury as part of
21 their case, that the previous conviction took place within the time
22 period specified.
23 (b) (i) If the previous conviction is for a crime other than domestic
24 abuse in the second degree as defined by section 120.80 of the penal
25 law, and the defendant admits the previous conviction, that it took
26 place within the time period specified in subdivision four of section
27 120.85 of the penal law, or that the defendant was the spouse, former
28 spouse, fellow parent of a child in common or domestic partner as
29 defined in section 120.75 of the penal law of the victim of such crime,
30 the admitted allegation or allegations shall be deemed established for
31 all subsequent purposes, including sentencing pursuant to section 70.00
32 of the penal law. The court must submit the case to the jury as if the
33 admitted allegation or allegations were not elements of the offense. The
34 court may not submit to the jury any lesser included offense which is
35 distinguished from the offense charged solely by the fact that the
36 previous conviction is not an element thereof.
37 (ii) If the defendant denies the previous conviction or remains mute
38 with resect to it, the people may prove that element of the offense
39 before the jury as a part of their case.
40 (iii) If the defendant denies that the previous conviction took place
41 within the time period specified in subdivision four of section 120.85
42 of the penal law, or remains mute with resect to that matter, the people
43 may prove, beyond a reasonable doubt, before the jury as part of their
44 case, that the previous conviction took place within the time period
45 specified.
46 (iv) If the defendant denies that the defendant was the spouse, former
47 spouse, fellow parent of a child in common or domestic partner as
48 defined in section 120.75 of the penal law of the victim of such previ-
49 ous crime, or remains mute with respect to that matter, the people may
50 prove that element of the offense before the jury as a part of their
51 case.
52 3. Notwithstanding subdivision one, and subparagraph (i) of paragraph
53 (a) and subparagraph (i) of paragraph (b) of subdivision two of this
54 section, if evidence regarding the prior conviction, or that the defend-
55 ant was the spouse, former spouse, fellow parent of a child in common or
56 domestic partner as defined in section 120.75 of the penal law of the
S. 3666--C 4
1 victim of such previous crime, is relevant to help prove the crime or
2 crimes charged in the indictment or information, such evidence shall be
3 admissible.
4 4. A determination pursuant to this section that the defendant has a
5 previous conviction, that at the time of the prior offense the defendant
6 was the spouse, former spouse, fellow parent of a child in common or
7 domestic partner as defined in section 120.75 of the penal law of the
8 victim of such previous crime, or that the previous conviction took
9 place within the time period specified in subdivision four of section
10 120.85 of the penal law, shall be binding in any future proceeding in
11 which the issue may arise unless the conviction for the domestic abuse
12 offense charged in the indictment or information is vacated or reversed.
13 § 3. Subdivision 1 of section 370.15 of the criminal procedure law, as
14 added by chapter 258 of the laws of 2011, is amended to read as follows:
15 1. When a defendant has been charged with assault or attempted assault
16 in the third degree as defined in sections 120.00 and 110.00 of the
17 penal law, menacing or attempted menacing in the second degree as
18 defined in sections 120.14 and 110.00 of the penal law, domestic abuse
19 or attempted domestic abuse in the second degree as defined in sections
20 120.80 and 110.00 of the penal law, criminal obstruction of breathing or
21 blood circulation or attempted criminal obstruction of breathing or
22 blood circulation as defined in sections 121.11 and 110.00 of the penal
23 law, or forcible touching or attempted forcible touching as defined in
24 sections 130.52 and 110.00 of the penal law, the people may, at arraign-
25 ment or no later than forty-five days after arraignment, for the purpose
26 of notification to the division of criminal justice services pursuant to
27 section 380.97 of this part, serve on the defendant and file with the
28 court a notice alleging that the defendant is related or situated to the
29 victim of the crime in the manner specified in 18 U.S.C.
30 921(a)(33)(A)(ii).
31 § 4. Section 380.97 of the criminal procedure law, as added by chapter
32 258 of the laws of 2011, is amended to read as follows:
33 § 380.97 Notification to division of criminal justice services of deter-
34 minations in certain misdemeanor cases.
35 Upon judgment of conviction of assault or attempted assault in the
36 third degree, as defined in sections 120.00 and 110.00 of the penal law,
37 menacing or attempted menacing in the second degree, as defined in
38 section 120.14 and 110.00 of the penal law, domestic abuse or attempted
39 domestic abuse in the second degree as defined in sections 120.80 and
40 110.00 of the penal law, criminal obstruction of breathing or blood
41 circulation or attempted criminal obstruction of breathing or blood
42 circulation, as defined in sections 121.11 and 110.00 of the penal law,
43 forcible touching or attempted forcible touching, as defined in sections
44 130.52 and 110.00 of the penal law, when the defendant has been deter-
45 mined, pursuant to section 370.15 of this part, to be related or situ-
46 ated to the victim of the offense in the manner specified in 18 U.S.C.
47 921(a)(33)(A)(ii), the clerk of the court shall include notification and
48 a copy of the written determination in a report of such conviction to
49 the division of criminal justice services to enable the division to
50 report such determination to the federal bureau of investigation and
51 assist the bureau in identifying persons prohibited from purchasing and
52 possessing a firearm pursuant to the provisions of 18 U.S.C. 922.
53 § 5. The opening paragraph of subdivision 1 of section 530.11 of the
54 criminal procedure law, as amended by chapter 405 of the laws of 2010,
55 is amended to read as follows:
S. 3666--C 5
1 The family court and the criminal courts shall have concurrent juris-
2 diction over any proceeding concerning acts which would constitute
3 disorderly conduct, harassment in the first degree, harassment in the
4 second degree, aggravated harassment in the second degree, domestic
5 abuse in the first degree, domestic abuse in the second degree, sexual
6 misconduct, forcible touching, sexual abuse in the third degree, sexual
7 abuse in the second degree as set forth in subdivision one of section
8 130.60 of the penal law, stalking in the first degree, stalking in the
9 second degree, stalking in the third degree, stalking in the fourth
10 degree, criminal mischief, menacing in the second degree, menacing in
11 the third degree, reckless endangerment, strangulation in the first
12 degree, strangulation in the second degree, criminal obstruction of
13 breathing or blood circulation, assault in the second degree, assault in
14 the third degree or an attempted assault between spouses or former
15 spouses, or between parent and child or between members of the same
16 family or household except that if the respondent would not be criminal-
17 ly responsible by reason of age pursuant to section 30.00 of the penal
18 law, then the family court shall have exclusive jurisdiction over such
19 proceeding. Notwithstanding a complainant's election to proceed in fami-
20 ly court, the criminal court shall not be divested of jurisdiction to
21 hear a family offense proceeding pursuant to this section. For purposes
22 of this section, "disorderly conduct" includes disorderly conduct not in
23 a public place. For purposes of this section, "members of the same fami-
24 ly or household" with respect to a proceeding in the criminal courts
25 shall mean the following:
26 § 6. The opening paragraph of subdivision 1 of section 812 of the
27 family court act, as separately amended by chapters 341 and 405 of the
28 laws of 2010, is amended to read as follows:
29 The family court and the criminal courts shall have concurrent juris-
30 diction over any proceeding concerning acts which would constitute
31 disorderly conduct, harassment in the first degree, harassment in the
32 second degree, aggravated harassment in the second degree, domestic
33 abuse in the first degree, domestic abuse in the second degree, sexual
34 misconduct, forcible touching, sexual abuse in the third degree, sexual
35 abuse in the second degree as set forth in subdivision one of section
36 130.60 of the penal law, stalking in the first degree, stalking in the
37 second degree, stalking in the third degree, stalking in the fourth
38 degree, criminal mischief, menacing in the second degree, menacing in
39 the third degree, reckless endangerment, criminal obstruction of breath-
40 ing or blood circulation, strangulation in the second degree, strangula-
41 tion in the first degree, assault in the second degree, assault in the
42 third degree or an attempted assault, criminal obstruction of breathing
43 or blood circulation or strangulation between spouses or former spouses,
44 or between parent and child or between members of the same family or
45 household except that if the respondent would not be criminally respon-
46 sible by reason of age pursuant to section 30.00 of the penal law, then
47 the family court shall have exclusive jurisdiction over such proceeding.
48 Notwithstanding a complainant's election to proceed in family court, the
49 criminal court shall not be divested of jurisdiction to hear a family
50 offense proceeding pursuant to this section. In any proceeding pursuant
51 to this article, a court shall not deny an order of protection, or
52 dismiss a petition, solely on the basis that the acts or events alleged
53 are not relatively contemporaneous with the date of the petition, the
54 conclusion of the fact-finding or the conclusion of the dispositional
55 hearing. For purposes of this article, "disorderly conduct" includes
S. 3666--C 6
1 disorderly conduct not in a public place. For purposes of this article,
2 "members of the same family or household" shall mean the following:
3 § 7. This act shall take effect on the first of November next succeed-
4 ing the date on which it shall have become a law.
