Enacts "Officer Alain Schaberger's law"; establishes the crime of aggravated domestic violence when a person has committed a specified domestic violence offense and has been convicted of one or more specified domestic violence offenses within the past five years.
STATE OF NEW YORK
________________________________________________________________________
5617--A
2011-2012 Regular Sessions
IN SENATE
June 7, 2011
___________
Introduced by Sens. GOLDEN, SQUADRON, LANZA -- 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
AN ACT to amend the penal law and the criminal procedure law, in
relation to the creation of the crime of aggravated domestic violence
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. This act shall be known and may be cited as "Officer Alain
2 Schaberger's law".
3 § 2. The penal law is amended by adding a new section 240.75 to read
4 as follows:
5 § 240.75 Aggravated family offense.
6 1. A person is guilty of aggravated family offense when he or she
7 commits a specified offense and he or she has been convicted of one or
8 more specified offenses within the immediately preceding five years. For
9 the purposes of this subdivision, in calculating the five year period,
10 any period of time during which the defendant was incarcerated for any
11 reason between the time of the commission of any of such previous
12 offenses and the time of commission of the present crime shall be
13 excluded and such five year period shall be extended by a period or
14 periods equal to the time served under such incarceration.
15 2. A "specified offense" is an offense defined in section 120.00
16 (assault in the third degree); section 120.05 (assault in the second
17 degree); section 120.10 (assault in the first degree); section 120.13
18 (menacing in the first degree); section 120.14 (menacing in the second
19 degree); section 120.15 (menacing in the third degree); section 120.20
20 (reckless endangerment in the second degree); section 120.25 (reckless
21 endangerment in the first degree); section 120.45 (stalking in the
22 fourth degree); section 120.50 (stalking in the third degree); section
23 120.55 (stalking in the second degree); section 120.60 (stalking in the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
S LBD11977-03-1
S. 5617--A 2
1 first degree); section 121.11 (criminal obstruction of breathing or
2 blood circulation); section 121.12 (strangulation in the second degree);
3 section 121.13 (strangulation in the first degree); subdivision one of
4 section 125.15 (manslaughter in the second degree); subdivision one, two
5 or four of section 125.20 (manslaughter in the first degree); section
6 125.25 (murder in the second degree); section 130.20 (sexual miscon-
7 duct); section 130.30 (rape in the second degree); section 130.35 (rape
8 in the first degree); section 130.40 (criminal sexual act in the third
9 degree); section 130.45 (criminal sexual act in the second degree);
10 section 130.50 (criminal sexual act in the first degree); section 130.52
11 (forcible touching); section 130.53 (persistent sexual abuse); section
12 130.55 (sexual abuse in the third degree); section 130.60 (sexual abuse
13 in the second degree); section 130.65 (sexual abuse in the first
14 degree); section 130.66 (aggravated sexual abuse in the third degree);
15 section 130.67 (aggravated sexual abuse in the second degree); section
16 130.70 (aggravated sexual abuse in the first degree); section 130.91
17 (sexually motivated felony); section 130.95 (predatory sexual assault);
18 section 130.96 (predatory sexual assault against a child); section
19 135.05 (unlawful imprisonment in the second degree); section 135.10
20 (unlawful imprisonment in the first degree); section 135.60 (coercion in
21 the second degree); section 135.65 (coercion in the first degree);
22 section 140.20 (burglary in the third degree); section 140.25 (burglary
23 in the second degree); section 140.30 (burglary in the first degree);
24 section 145.00 (criminal mischief in the fourth degree); section 145.05
25 (criminal mischief in the third degree); section 145.10 (criminal
26 mischief in the second degree); section 145.12 (criminal mischief in the
27 first degree); section 145.14 (criminal tampering in the third degree);
28 section 215.50 (criminal contempt in the second degree); section 215.51
29 (criminal contempt in the first degree); section 215.52 (aggravated
30 criminal contempt); section 240.25 (harassment in the first degree);
31 subdivision one, two or four of section 240.30 (aggravated harassment in
32 the second degree); aggravated family offense as defined in this section
33 or any attempt or conspiracy to commit any of the foregoing felony
34 offenses where the defendant and the person against whom the offense was
35 committed were members of the same family or household as defined in
36 subdivision one of section 530.11 of the criminal procedure law.
37 3. The person against whom the current specified offense is committed
38 may be different from the person against whom the previous specified
39 offense was committed and, such persons do not need to be members of the
40 same family or household.
41 Aggravated family offense is a class E felony.
42 § 3. The criminal procedure law is amended by adding a new section
43 200.63 to read as follows:
44 § 200.63 Indictment; special information for aggravated family offense.
45 1. Whenever a person is charged with the commission or attempted
46 commission of an aggravated family offense as defined in section 240.75
47 of the penal law, an indictment or information for such offense shall be
48 accompanied by a special information, filed by the district attorney
49 with the court, alleging that the defendant was previously convicted of
50 a specified offense as defined in subdivision two of section 240.75 of
51 the penal law, that at the time of the previous offense the defendant
52 and the person against whom the offense was committed were members of
53 the same family or household as defined in subdivision one of section
54 530.11 of this chapter, and that such previous conviction took place
55 within the time period specified in subdivision one of section 240.75 of
56 the penal law. Except as provided herein, the people may not refer to
S. 5617--A 3
1 such special information during trial nor adduce any evidence concerning
2 the allegations therein.
3 2. Prior to the commencement of the trial, the court, in the absence
4 of the jury, must arraign the defendant upon such information and advise
5 him or her that he or she may admit each such allegation, deny any such
6 allegation or remain mute with respect to any such allegation. Depending
7 upon the defendant's response, the trial of the indictment or informa-
8 tion must then proceed as follows:
9 (a)(i) If the previous conviction is for an aggravated family offense
10 as defined in section 240.75 of the penal law, and the defendant admits
11 the previous conviction or that it took place within the time period
12 specified in subdivision one of section 240.75 of the penal law, such
13 admitted allegation or allegations shall be deemed established for the
14 purposes of the present prosecution, including sentencing pursuant to
15 section 70.00 of the penal law. The court must submit the case to the
16 jury as if such admitted allegation or allegations were not elements of
17 the offense.
18 (ii) If the defendant denies the previous conviction or remains mute
19 with respect to it, the people may prove, beyond a reasonable doubt,
20 that element of the offense before the jury as a part of their case.
21 (iii) If the defendant denies that the previous conviction took place
22 within the time period specified in subdivision one of section 240.75 of
23 the penal law, or remains mute with respect to that matter, the people
24 may prove, beyond a reasonable doubt, before the jury as part of their
25 case, that the previous conviction took place within the time period
26 specified.
27 (b)(i) If the previous conviction is for a specified offense as
28 defined in subdivision two of section 240.75 of the penal law, other
29 than an aggravated family offense, and the defendant admits such previ-
30 ous conviction, that it took place within the time period specified in
31 subdivision one of section 240.75 of the penal law, or that the defend-
32 ant and the person against whom the offense was committed were members
33 of the same family or household as defined in subdivision one of section
34 530.11 of this chapter, such admitted allegation or allegations shall be
35 deemed established for the purposes of the present prosecution, includ-
36 ing sentencing pursuant to section 70.00 of the penal law. The court
37 must submit the case to the jury as if the admitted allegation or alle-
38 gations were not elements of the offense.
39 (ii) If the defendant denies the previous conviction or remains mute
40 with respect to it, the people may prove, beyond a reasonable doubt,
41 that element of the offense before the jury as a part of their case.
42 (iii) If the defendant denies that the previous conviction took place
43 within the time period specified in subdivision one of section 240.75 of
44 the penal law, or remains mute with respect to that matter, the people
45 may prove, beyond a reasonable doubt, before the jury as part of their
46 case, that the previous conviction took place within the time period
47 specified.
48 (iv) If the defendant denies that the defendant and the person against
49 whom the previous offense was committed were members of the same family
50 or household as defined in subdivision one of section 530.11 of this
51 chapter, or remains mute with respect to that matter, the people may
52 prove, beyond a reasonable doubt, that element of the offense before the
53 jury as a part of their case.
54 § 4. This act shall take effect on the ninetieth day after it shall
55 have become a law.
