NY State Assembly Bill 2009-A9017

Assembly Bill A9017

Signed By Governor

2009-2010 Legislative Session

Enacts provisions relating to domestic violence; requiring attorneys for children to receive training or education in domestic violence

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Archive: Last Bill Status - Signed by Governor

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Sep 16, 2009	signed chap.476
Sep 04, 2009	delivered to governor
Jul 16, 2009	returned to assembly passed senate 3rd reading cal.857 substituted for s5031a
Jun 22, 2009	referred to rules delivered to senate passed assembly ordered to third reading rules cal.623 rules report cal.623 reported reported referred to rules reported referred to ways and means reported referred to codes
Jun 19, 2009	referred to judiciary

Votes

- Jul 16, 2009 - Floor Vote
  A9017
  
  53
  
  Aye
  
  4
  
  Nay
  
  0
  
  Absent
  
  5
  
  Excused
  
  0
  
  Abstained
  - - Floor Vote: Jul 16, 2009
      
      aye (53)
      
      Adams
      
      Addabbo Jr.
      
      Alesi
      
      Aubertine
      
      Breslin
      
      Dilan
      
      Duane
      
      Espada
      
      Farley
      
      Flanagan
      
      Fuschillo
      
      Golden
      
      Griffo
      
      Hannon
      
      Hassell-Thompson
      
      Huntley
      
      Johnson
      
      Klein
      
      Krueger
      
      LaValle
      
      Lanza
      
      Larkin
      
      Leibell
      
      Libous
      
      Little
      
      Marcellino
      
      Maziarz
      
      McDonald
      
      Monserrate
      
      Montgomery
      
      Morahan
      
      Nozzolio
      
      Onorato
      
      Oppenheimer
      
      Padavan
      
      Parker
      
      Perkins
      
      Ranzenhofer
      
      Robach
      
      Saland
      
      Sampson
      
      Savino
      
      Schneiderman
      
      Serrano
      
      Seward
      
      Smith
      
      Stachowski
      
      Stavisky
      
      Stewart-Cousins
      
      Thompson
      
      Valesky
      
      Winner
      
      Young
      
      nay (4)
      
      Bonacic
      
      DeFrancisco
      
      Skelos
      
      Volker
      
      excused (5)
      
      Diaz
      
      Foley
      
      Johnson
      
      Kruger
      
      Squadron

co-Sponsors

2009-A9017 (ACTIVE) - Details

See Senate Version of this Bill:: S5031
Law Section:: Family Court Act
Laws Affected:: Amd §§249-b, 812 & 821, Fam Ct Act; amd §240, Dom Rel L; amd §§530.11, 140.10, 160.55, 170.10, 530.12 & 530.13, CP L

2009-A9017 (ACTIVE) - Summary

Requires lawyers for children to receive training or education in domestic violence; requires the court to state on the record the domestic violance and child abuse factored into their award of custody or visitation.

2009-A9017 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:A9017

TITLE OF BILL:  An act to amend the family court act, in relation to
requiring attorneys for children to receive training or education in
domestic violence prevention; to amend the domestic relations law, in
relation to requiring the court to state on the record the domestic
violence and child abuse factored into their award of custody or visita-
tion; to amend the criminal procedure law and the family court act, in
relation to orders of protection; and to amend the criminal procedure
law, in relation to reporting domestic violence incidents to the super-
vising probation department or the division of parole

Purpose:  This bill would: (1) require education and training on the
effects of domestic violence for court-appointed attorneys for children;
(2) require courts to state on the record how established incidents of
domestic violence and child abuse factored into determinations of visi-
tation or custody; (3) authorize concurrent jurisdiction in family court
for certain sex offenses; (4) provide for transmission of domestic
violence incident reports involving probationers or parolees to the
relevant agency as soon as practicable; (5) provide that records be made
available to law enforcement when there is a conviction of the violation
of harassment in the second degree against a member of the same family
or household; and (6) provide for extending of an order of protection
during a period of incarceration.

Summary of Provisions:  Section 1 of the bill would amend Family Court

Act (FCA) § 249-b to require the chief administrator of the courts to
promulgate rules to provide that each person appointed to be an attorney
for a child shall complete a training program, which would include the
effects of domestic violence on children and the relationship between
domestic violence and custody, visitation and child support. Such a
training program would be developed with the input of and in consulta-
tion with the Office for the Prevention of Domestic Violence.

Section 2 of the bill would amend Domestic Relations Law (DRL)
240(1)(a) to require that, where allegations of domestic violence or
child abuse are raised and established by a preponderance of the
evidence, a court must state on the record how findings, facts and
circumstances of domestic violence or child abuse factored into the
court's determination of custody or visitation.

Sections 3, 4, and 5 of the bill would amend Criminal Procedure Law
(CPL) § 530.11(1), FCA § 812(1) and FCA § 821(1)(a), respectively, to
add the crimes of sexual misconduct, forcible touching, sexual abuse in
the third degree and sexual abuse in the second degree as set forth in
Penal Law § 130.60(1) to those family offenses for which a victim may
obtain an order of protection in family court, and subjecting these
offenses to mandatory arrest and reporting requirements of CPL § 140.10.

Section 6 of the bill would amend CPL § 140.10(5) to provide that a
report of a domestic violence incident involving an individual known by
the law enforcement officer to be under probation or parole supervision

must be transmitted by the officer to the supervising probation or
parole agency as soon as practicable.

Sections 7 and 8 of the bill would amend CPL § 160.55(1)(a) and CPL
160.55(1)(d), respectively, to provide that palmprints and fingerprints
concerning an arrest for harassment in the second degree against a
member of the same family or household will be retained and that records
and papers of arrest and prosecution may be made available to certain
qualified agencies in cases in which the defendant is convicted of
harassment in the second degree against a member of the same family or
household.

Section 9 of the bill would amend CPL § 170.10(4) to add a new paragraph
(e) to provide that the Court inform the defendant that the records and
papers in the arrest and prosecution of a conviction of harassment in
the second degree against a member of the same family or household shall
be accessible for law enforcement purposes.

Section 10 of the bill would amend CPL § 160.55(2) to provide that when
a defendant has been found guilty of harassment in the second degree
against a member of the same family or household, the clerk of the court
shall include notification of such disposition to the Division of Crimi-
nal Justice Services.

Section 11 of the bill would amend CPL § 170.10 by adding a new subdivi-
sion 8-a to provide notice to a defendant that he or she was alleged to
have committed harassment in the second degree against a member of the
same family or household and creates a procedure for determining if the
offense was committed against a member of the same family or household.

Sections 12 and 13 of the bill would amend CPL § 530.12(5) and CPL
530.13(4), respectively, to provide that, upon conviction of a class A
misdemeanor and issuance of an order of protection, such order of
protection may be extended during the period of the defendant's incar-
ceration.

Section 14 of the bill would provide that, consistent with available
resources, the Division of Human Rights shall develop training programs
in conjunction with the Office for the Prevention of Domestic Violence
to implement certain changes to the Human Rights Law.

Section 15 of the bill would provide that it shall take effect 90 days
after enactment; however sections 7, 8, and 10 would take effect in 120
days and apply to convictions on and after such date and sections 9 and
11 would take effect 30 days after enactment.

Existing Law:  FCA § 249-b requires the chief administrator of courts to
promulgate court rules prescribing workload standards for attorneys for
children.

DRL § 240(1) requires that, with respect to child custody or visitation
determinations in matrimonial actions, where allegations of domestic

violence or child abuse are established by a preponderance of the
evidence, courts must consider the effects of such domestic violence or
child abuse in making the custody or visitation determination.

CPL § 530.11 provides that criminal court and family court shall have
concurrent jurisdiction over certain crimes, including, for example,
disorderly conduct, harassment, menacing and stalking, when the crime is
committed between members of the same family or household.

FCA § 812 provides that family court and criminal court shall have
concurrent jurisdiction over certain crimes, including, for example,
disorderly conduct, harassment, menacing and stalking, when the crime is
committed between members of the same family or household.

FCA § 821 provides that a family offense proceeding may commence upon
the filing of a petition alleging, that a respondent engaged in certain
criminal conduct against a household or family member, including, for
example, disorderly conduct, harassment, stalking and menacing.

CPL § 140.10(4) provides that a law enforcement officer must arrest an
individual where the officer has reasonable cause to believe he or she
has committed an offense enumerated in CPL § 530.11(1) against a member
of the same family or household.

CPL § 140.10(5) provides that a law enforcement officer must prepare and
file a written report of a crime between members of the same family or
household, whether or not an arrest is made.

CPL § 160.55 provides that, where a criminal action or proceeding has
been terminated against a defendant by way of the defendant's conviction
of a traffic infraction or violation, other than certain enumerated
violations, records of such criminal action or proceeding shall be
sealed.

CPL § 530.12(5) provides for the issuance and maximum duration of orders
of protection issued in family offense cases.

CPL § 530.13(4) provides for the issuance and maximum duration of orders
of protection in cases other than family offenses.

Justification:  Domestic violence is a crime of enormous magnitude that
affects all New Yorkers-regardless of age, race, or economic status-with
long term and pervasive consequences for victims, families, communities
and society. Each year, an estimated 400,000 domestic violence incidents
are reported to law enforcement in New York, and approximately 300,000
calls are received by hotlines throughout the State. Nearly 165,000
orders of protection were issued in domestic violence cases in family,
criminal and supreme courts in 2007 alone.

In New York and around the nation, several high profile domestic
violence cases have renewed focus on the effects of domestic violence on
victims, children and our communities. In addition, some studies have

indicated an increased risk of abusive conduct during difficult finan-
cial times. The stresses of an economic downturn might also make it more
difficult for victims of domestic violence to take the steps they need
to get and stay safe.

While New York vigorously responds to domestic violence, with over 550
police departments, 200 emergency rooms, 150 domestic violence service
providers, 99 domestic violence hotlines and 1,000 specialized courts,
improvements can be made to hold offenders accountable, support victims
of domestic violence and protect our children from exposure to and
involvement in domestic violence situations. This bill will implement
legislative changes that will strengthen New York's support for victims
and their children while holding offenders accountable.

* Protecting Children from Harmful Exposure to Domestic Violence

Children exposed to domestic violence often suffer psychological, behav-
ioral and academic challenges. In 1996, the legislature recognized the
harmful effects of domestic violence on children and established domes-
tic violence as a factor that courts must consider in child custody and
visitation proceedings. Thirteen years later, studies indicate that the
presence of domestic violence often has little impact on custody and
visitation determinations. This bill would require courts to state on
the record how the findings, facts and circumstances of domestic
violence or child abuse were factored into the custody or visitation
determination, where such abuse was established by a preponderance of
the evidence. In addition, this bill would require that attorneys for
children be trained on the dynamics of domestic violence so they can
better counsel and represent their clients.

* Holding Offenders Accountable

New York recognizes certain crimes as offenses that may be committed
within a family setting, and enumerates those offenses in FCA § 812.
When a crime is recognized as a family offense, victims are eligible to
petition for orders of protection in family court. These orders of
protection are listed on a state-wide registry and the police must
arrest an individual where there is reasonable cause to believe that the
individual has committed a designated family offense. Currently, New
York does not include sex crimes within those designated as "family
offenses," even though there is a high correlation between domestic
violence and sexual assault. This bill would allow evidence of certain
sex crimes committed against members of the same family or household to
be heard in family court order of protection proceedings, while ensuring
that mandatory arrest applies and that orders of protection are filed
with the statewide registry.

Law enforcement is not currently required to notify supervisory agen-
cies, such as the supervising probation department or the New York State
Division of Parole, when a probationer or parolee is involved in a
domestic incident. Law enforcement officers are required to complete a
domestic incident report when they respond to any domestic call. This

bill would require the law enforcement officer to transmit a domestic
incident report to the supervisory probation department or New York
State Division of Parole when the alleged abuser is known to be on
probation or parole. Since such supervising agencies frequently impose
the condition that a probationer or parolee report any contact with law
enforcement, this bill would assist the agencies in enforcing this
condition, thereby ensuring that offenders are held accountable.

Most domestic violence cases are initially charged as misdemeanors, but
many ultimately plead down to harassment charges, which are violations
and subject to sealing. This process prohibits law enforcement from
accessing the records and papers pertaining to these convictions result-
ing in limited access to information crucial to charging decisions, such
as whether an offense was part of a course of conduct and who was the
primary aggressor. This bill would allow a defendant to obtain a non-
criminal disposition, when all parties deem that outcome to be appropri-
ate, while ensuring that law enforcement has a complete understanding of
the nature of the domestic violence history for any future incidents.

Orders of protection are crucial to the safety of victims. It is impor-
tant that these protections be made available while a defendant is
incarcerated and upon release. This bill provides greater protections to
victims by adding the length of incarceration to the maximum expiration
date previously allowed for orders of protections issued in misdemeanor
and violation cases.

Budgetary Implications:  This bill is not expected to have a material
impact on State finances.

Effective Date:  This bill would take effect 90 days after it becomes a
law; provided that sections 7, 8 and 10 would take effect 120 days after
enactment and apply to convictions on and after that date and sections 9
and 11 would take effect 30 days after enactment.

2009-A9017 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9017

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              June 19, 2009
                               ___________

Introduced  by  M. of A. WEINSTEIN, JOHN, DESTITO, LENTOL -- (at request
  of the Governor) -- read once and referred to the Committee on Judici-
  ary

AN ACT to amend the family court act, in relation to requiring attorneys
  for children to receive training or  education  in  domestic  violence
  prevention;  to  amend  the  domestic  relations  law,  in relation to
  requiring the court to state on the record the domestic  violence  and
  child  abuse  factored  into  their award of custody or visitation; to
  amend the criminal procedure law and the family court act, in relation
  to orders of protection; and to amend the criminal procedure  law,  in
  relation  to  reporting domestic violence incidents to the supervising
  probation department or the division of parole

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1. Section 249-b of the family court act, as added by chapter
626 of the laws of 2007, is amended to read as follows:
  S 249-b. Rules of court. (A) The chief administrator  of  the  courts,
pursuant  to  paragraph  (e)  of  subdivision two of section two hundred
twelve of the judiciary law, shall promulgate court rules  [prescribing]
FOR ATTORNEYS FOR CHILDREN. SUCH COURT RULES SHALL:
  1.  PRESCRIBE workload standards for attorneys for children, including
maximum numbers of children who can be represented at any given time, in
order to ensure that children receive effective  assistance  of  counsel
comporting  with  legal  and  ethical  mandates,  the  complexity of the
proceedings affecting each client to which the law guardian is assigned,
and the nature of the court appearance likely to be  required  for  each
individual  client[.    Appointments  of  attorneys  for  children under
section two hundred forty-nine of this part shall be in conformity  with
the rules]; AND
  2.  PROVIDE FOR THE DEVELOPMENT OF TRAINING PROGRAMS WITH THE INPUT OF
AND IN CONSULTATION WITH THE STATE OFFICE FOR THE PREVENTION OF DOMESTIC

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD12033-13-9

A. 9017                             2

VIOLENCE. SUCH TRAINING PROGRAMS MUST INCLUDE THE DYNAMICS  OF  DOMESTIC
VIOLENCE AND ITS EFFECT ON VICTIMS AND ON CHILDREN, AND THE RELATIONSHIP
BETWEEN SUCH DYNAMICS AND THE ISSUES CONSIDERED BY THE COURT, INCLUDING,
BUT NOT LIMITED TO, CUSTODY, VISITATION AND CHILD SUPPORT. SUCH TRAINING
PROGRAMS  ALONG  WITH THE PROVIDERS OF SUCH TRAINING MUST BE APPROVED BY
THE OFFICE OF COURT ADMINISTRATION FOLLOWING CONSULTATION WITH AND INPUT
FROM THE STATE OFFICE FOR THE PREVENTION OF DOMESTIC VIOLENCE; AND
  3. REQUIRE THAT ALL ATTORNEYS FOR CHILDREN, INCLUDING NEW AND  VETERAN
ATTORNEYS,  RECEIVE INITIAL AND ONGOING TRAINING AS PROVIDED FOR IN THIS
SECTION.
  (B) APPOINTMENTS OF ATTORNEYS FOR CHILDREN UNDER SECTION  TWO  HUNDRED
FORTY-NINE OF THIS PART SHALL BE IN CONFORMITY WITH THE RULES.
  S  2.  Paragraph  (a)  of subdivision 1 of section 240 of the domestic
relations law, as amended by chapter 538 of the laws of 2008, is amended
to read as follows:
  (a) In any action or proceeding brought (1) to annul a marriage or  to
declare  the nullity of a void marriage, or (2) for a separation, or (3)
for a divorce, or (4) to obtain, by a writ of habeas corpus or by  peti-
tion and order to show cause, the custody of or right to visitation with
any  child  of  a  marriage, the court shall require verification of the
status of any child of the marriage with respect to such child's custody
and support, including any prior orders,  and  shall  enter  orders  for
custody  and  support  as,  in the court's discretion, justice requires,
having regard to the circumstances of the case  and  of  the  respective
parties  and  to  the  best  interests  of  the child and subject to the
provisions of subdivision one-c of this section. Where either  party  to
an  action  concerning  custody of or a right to visitation with a child
alleges in a sworn petition or complaint or  sworn  answer,  cross-peti-
tion,  counterclaim  or  other  sworn responsive pleading that the other
party has committed an act of domestic violence against the party making
the allegation or a family or household member of either party, as  such
family  or  household  member  is defined in article eight of the family
court act, and such allegations are proven by  a  preponderance  of  the
evidence,  the  court must consider the effect of such domestic violence
upon the best interests of the child, together with such other facts and
circumstances as the court deems relevant in making a direction pursuant
to this section AND STATE ON THE RECORD HOW  SUCH  FINDINGS,  FACTS  AND
CIRCUMSTANCES  FACTORED  INTO  THE DIRECTION.   If a parent makes a good
faith allegation based on a reasonable belief supported  by  facts  that
the child is the victim of child abuse, child neglect, or the effects of
domestic violence, and if that parent acts lawfully and in good faith in
response  to  that reasonable belief to protect the child or seek treat-
ment for the child, then that parent shall not be deprived  of  custody,
visitation  or contact with the child, or restricted in custody, visita-
tion or contact, based solely on that belief or the  reasonable  actions
taken  based  on that belief. If an allegation that a child is abused is
supported by a preponderance of  the  evidence,  then  the  court  shall
consider  such  evidence of abuse in determining the visitation arrange-
ment that is in the best interest of the child, and the court shall  not
place a child in the custody of a parent who presents a substantial risk
of  harm  to that child, AND SHALL STATE ON THE RECORD HOW SUCH FINDINGS
WERE FACTORED INTO THE DETERMINATION.  An order directing the payment of
child support shall contain the social security  numbers  of  the  named
parties. In all cases there shall be no prima facie right to the custody
of  the child in either parent.  Such direction shall make provision for
child support out of the property of either or both parents.  The  court

A. 9017                             3

shall  make its award for child support pursuant to subdivision one-b of
this section. Such  direction  may  provide  for  reasonable  visitation
rights  to the maternal and/or paternal grandparents of any child of the
parties.  Such  direction  as  it applies to rights of visitation with a
child remanded or placed in the care of a person,  official,  agency  or
institution pursuant to article ten of the family court act, or pursuant
to  an  instrument approved under section three hundred fifty-eight-a of
the social services law, shall be enforceable pursuant to part eight  of
article  ten  of  the family court act and sections three hundred fifty-
eight-a and three hundred eighty-four-a of the social services  law  and
other  applicable  provisions  of law against any person having care and
custody, or temporary care and custody, of  the  child.  Notwithstanding
any  other  provision  of  law, any written application or motion to the
court for the establishment, modification  or  enforcement  of  a  child
support  obligation  for persons not in receipt of public assistance and
care must  contain  either  a  request  for  child  support  enforcement
services  which would authorize the collection of the support obligation
by the immediate issuance of an income execution for support enforcement
as provided for by this chapter, completed in the  manner  specified  in
section  one hundred eleven-g of the social services law; or a statement
that the applicant has applied for or is in receipt of such services; or
a statement that  the  applicant  knows  of  the  availability  of  such
services,  has  declined them at this time and where support enforcement
services pursuant to section one hundred eleven-g of the social services
law have been declined that the applicant  understands  that  an  income
deduction  order  may  be  issued pursuant to subdivision (c) of section
fifty-two hundred forty-two of the civil practice law and rules  without
other child support enforcement services and that payment of an adminis-
trative  fee may be required. The court shall provide a copy of any such
request for child support enforcement services to the support collection
unit of the appropriate social services district  any  time  it  directs
payments  to  be made to such support collection unit. Additionally, the
copy of any such request shall be accompanied by the name,  address  and
social  security  number  of  the  parties;  the  date  and place of the
parties' marriage; the name and date of birth of the child or  children;
and the name and address of the employers and income payors of the party
from whom child support is sought or from the party ordered to pay child
support  to the other party. Such direction may require the payment of a
sum or sums of money either directly to the custodial parent or to third
persons for goods or services furnished for  such  child,  or  for  both
payments  to  the  custodial parent and to such third persons; provided,
however, that unless the party seeking or receiving  child  support  has
applied  for  or  is receiving such services, the court shall not direct
such payments to be made to the support collection unit, as  established
in  section one hundred eleven-h of the social services law. Every order
directing the payment of support shall require  that  if  either  parent
currently,  or  at any time in the future, has health insurance benefits
available that may be extended or obtained  to  cover  the  child,  such
parent  is  required  to  exercise  the option of additional coverage in
favor of such child and execute and deliver to such  person  any  forms,
notices,  documents or instruments necessary to assure timely payment of
any health insurance claims for such child.
  S 3.  The opening paragraph of subdivision 1 of section 530.11 of  the
criminal  procedure  law, as amended by chapter 326 of the laws of 2008,
is amended to read as follows:

A. 9017                             4

  The family court and the criminal courts shall have concurrent  juris-
diction  over  any  proceeding  concerning  acts  which would constitute
disorderly conduct, harassment in the first degree,  harassment  in  the
second  degree,  aggravated  harassment  in  the  second  degree, SEXUAL
MISCONDUCT,  FORCIBLE TOUCHING, SEXUAL ABUSE IN THE THIRD DEGREE, SEXUAL
ABUSE IN THE SECOND  DEGREE AS SET FORTH IN SUBDIVISION ONE  OF  SECTION
130.60  OF  THE PENAL LAW, stalking in the first degree, stalking in the
second degree, stalking in the third  degree,  stalking  in  the  fourth
degree,  criminal  mischief,  menacing in the second degree, menacing in
the third degree, reckless endangerment, assault in the  second  degree,
assault  in  the third degree or an attempted assault between spouses or
former spouses, or between parent and child or between  members  of  the
same  family  or  household  except  that if the respondent would not be
criminally responsible by reason of age pursuant to section 30.00 of the
penal law, then the family court shall have exclusive jurisdiction  over
such  proceeding. Notwithstanding a complainant's election to proceed in
family court, the criminal court shall not be divested  of  jurisdiction
to  hear  a  family  offense  proceeding  pursuant  to this section. For
purposes of  this  section,  "disorderly  conduct"  includes  disorderly
conduct not in a public place. For purposes of this section, "members of
the same family or household" with respect to a proceeding in the crimi-
nal courts shall mean the following:
  S  4.    The  opening paragraph of subdivision 1 of section 812 of the
family court act, as amended by chapter 326 of  the  laws  of  2008,  is
amended to read as follows:
  The  family court and the criminal courts shall have concurrent juris-
diction over any  proceeding  concerning  acts  which  would  constitute
disorderly  conduct,  harassment  in the first degree, harassment in the
second degree,  aggravated  harassment  in  the  second  degree,  SEXUAL
MISCONDUCT,  FORCIBLE TOUCHING, SEXUAL ABUSE IN THE THIRD DEGREE, SEXUAL
ABUSE IN THE SECOND DEGREE AS SET FORTH IN SUBDIVISION  ONE  OF  SECTION
130.60  OF  THE PENAL LAW, stalking in the first degree, stalking in the
second degree, stalking in the third  degree,  stalking  in  the  fourth
degree,  criminal  mischief,  menacing in the second degree, menacing in
the third degree, reckless endangerment, assault in the  second  degree,
assault  in  the third degree or an attempted assault between spouses or
former spouses, or between parent and child or between  members  of  the
same  family  or  household  except  that if the respondent would not be
criminally responsible by reason of age pursuant to section 30.00 of the
penal law, then the family court shall have exclusive jurisdiction  over
such  proceeding. Notwithstanding a complainant's election to proceed in
family court, the criminal court shall not be divested  of  jurisdiction
to  hear  a  family  offense  proceeding  pursuant  to this section. For
purposes of  this  article,  "disorderly  conduct"  includes  disorderly
conduct  not  in a public place.  For purposes of this article, "members
of the same family or household" shall mean the following:
  S 5. Paragraph (a) of subdivision 1 of section 821 of the family court
act, as amended by chapter 635 of the laws of 1999, is amended  to  read
as follows:
  (a)  An  allegation  that  the  respondent  assaulted  or attempted to
assault his or her spouse, or former  spouse,  parent,  child  or  other
member of the same family or household or engaged in disorderly conduct,
harassment,  SEXUAL  MISCONDUCT,  FORCIBLE TOUCHING, SEXUAL ABUSE IN THE
THIRD DEGREE, SEXUAL ABUSE IN THE SECOND DEGREE AS SET FORTH IN SUBDIVI-
SION ONE  OF  SECTION  130.60  OF  THE  PENAL  LAW,  stalking,  CRIMINAL

A. 9017                             5

MISCHIEF,  menacing  or  reckless  endangerment  toward any such person;
[and]
  S 6. Subdivision 5 of section 140.10 of the criminal procedure law, as
amended  by  chapter  626  of  the  laws  of 1997, is amended to read as
follows:
  5. Upon investigating a report of a crime or offense  between  members
of  the  same  family  or household as such terms are defined in section
530.11 of this chapter and section eight hundred twelve  of  the  family
court  act,  a  law enforcement officer shall prepare and file a written
report of the incident, on a form promulgated pursuant to section  eight
hundred  thirty-seven of the executive law, including statements made by
the victim and  by  any  witnesses,  and  make  any  additional  reports
required  by  local  law  enforcement policy or regulations. Such report
shall be prepared and filed, whether or not  an  arrest  is  made  as  a
result  of the officers' investigation, and shall be retained by the law
enforcement agency for a period of not less than four years.  Where  the
reported  incident involved an offense committed against a person who is
sixty-five years of age or older a copy of the report required  by  this
subdivision  shall be sent to the New York state committee for the coor-
dination of police services to elderly persons established  pursuant  to
section  eight  hundred  forty-four-b  of the executive law.   WHERE THE
REPORTED INCIDENT INVOLVED AN OFFENSE COMMITTED BY AN  INDIVIDUAL  KNOWN
BY  THE  LAW  ENFORCEMENT OFFICER TO BE UNDER PROBATION OR PAROLE SUPER-
VISION, HE OR SHE SHALL TRANSMIT A COPY OF THE REPORT AS SOON AS PRACTI-
CABLE TO THE SUPERVISING PROBATION DEPARTMENT OR THE DIVISION OF PAROLE.
  S 7. Paragraph (a) of subdivision 1 of section 160.55 of the  criminal
procedure law, as amended by chapter 169 of the laws of 1994, is amended
to read as follows:
  (a)  every  photograph of such person and photographic plate or proof,
and all palmprints and fingerprints taken or made of such person  pursu-
ant  to  the  provisions  of  this  article  in  regard to the action or
proceeding terminated, and all duplicates and copies thereof,  except  a
digital  fingerprint image where authorized pursuant to paragraph (e) of
this subdivision, EXCEPT FOR THE PALMPRINTS AND FINGERPRINTS  CONCERNING
A  DISPOSITION  OF HARASSMENT IN THE SECOND DEGREE AS DEFINED IN SECTION
240.26 OF THE PENAL LAW, COMMITTED AGAINST A MEMBER OF THE  SAME  FAMILY
OR  HOUSEHOLD AS THE DEFENDANT, AS DEFINED IN SUBDIVISION ONE OF SECTION
530.11 OF THIS CHAPTER, AND DETERMINED PURSUANT TO  SUBDIVISION  EIGHT-A
OF  SECTION  170.10 OF THIS TITLE, shall forthwith be, at the discretion
of the recipient agency, either destroyed or returned to such person, or
to the attorney who represented such person at the time  of  the  termi-
nation  of the action or proceeding, at the address given by such person
or attorney during the action or proceeding, by the division of criminal
justice services and by any police department or law enforcement  agency
having  any  such photograph, photographic plate or proof, palmprints or
fingerprints in its possession or under its control;
  S 8. Paragraph (d) of subdivision 1 of section 160.55 of the  criminal
procedure law, as amended by chapter 169 of the laws of 1994, is amended
to read as follows:
  (d) the records referred to in paragraph (c) of this subdivision shall
be  made  available to the person accused or to such person's designated
agent, and shall be made available to (i) a prosecutor in any proceeding
in which the accused has moved for an order pursuant to  section  170.56
or  210.46  of  this  chapter,  or (ii) a law enforcement agency upon ex
parte motion in any superior court, if such agency demonstrates  to  the
satisfaction  of  the  court  that justice requires that such records be

A. 9017                             6

made available to it, or (iii) any state or local officer or agency with
responsibility for the issuance of licenses to possess  guns,  when  the
accused  has  made  application for such a license, or (iv) the New York
state division of parole when the accused is under parole supervision as
a  result  of  conditional  release or parole release granted by the New
York state board of parole and the arrest which is the  subject  of  the
inquiry  is  one  which occurred while the accused was under such super-
vision, or (v) the probation department responsible for  supervision  of
the  accused  when the arrest which is the subject of the inquiry is one
which occurred while the accused was under such supervision, OR  (VI)  A
POLICE  AGENCY,  PROBATION DEPARTMENT, SHERIFF'S OFFICE, DISTRICT ATTOR-
NEY'S OFFICE, DEPARTMENT OF CORRECTION OF ANY  MUNICIPALITY  AND  PAROLE
DEPARTMENT,  FOR  LAW  ENFORCEMENT PURPOSES, UPON ARREST IN INSTANCES IN
WHICH THE INDIVIDUAL  STANDS  CONVICTED  OF  HARASSMENT  IN  THE  SECOND
DEGREE, AS DEFINED IN SECTION 240.26 OF THE PENAL LAW, COMMITTED AGAINST
A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS THE DEFENDANT, AS DEFINED IN
SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, AND DETERMINED PURSU-
ANT TO SUBDIVISION EIGHT-A OF SECTION 170.10 OF THIS TITLE; and
  S  9. Subdivision 4 of section 170.10 of the criminal procedure law is
amended by adding a new paragraph (e) to read as follows:
  (E) WHERE AN INFORMATION, A  SIMPLIFIED  INFORMATION,  A  PROSECUTOR'S
INFORMATION,  A  MISDEMEANOR COMPLAINT, A FELONY COMPLAINT OR AN INDICT-
MENT CHARGES HARASSMENT IN THE SECOND  DEGREE,  AS  DEFINED  IN  SECTION
240.26  OF  THE PENAL LAW, IF THERE IS A JUDGMENT OF CONVICTION FOR SUCH
OFFENSE AND SUCH OFFENSE IS DETERMINED TO HAVE BEEN COMMITTED AGAINST  A
MEMBER  OF  THE SAME FAMILY OR HOUSEHOLD AS THE DEFENDANT, AS DEFINED IN
SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, THE  RECORD  OF  SUCH
CONVICTION  SHALL  BE  ACCESSIBLE  FOR  LAW ENFORCEMENT PURPOSES AND NOT
SEALED, AS SPECIFIED IN PARAGRAPH (A) AND SUBPARAGRAPH (VI) OF PARAGRAPH
(D) OF SUBDIVISION ONE OF SECTION 160.55 OF THIS TITLE; AND
  S 10. Subdivision 2 of section 160.55 of the criminal  procedure  law,
as  added  by  chapter  142  of  the laws of 1991, is amended to read as
follows:
  2.   A report of the  termination  of  the  action  or  proceeding  by
conviction  of a traffic violation or a violation other than a violation
of loitering as described in paragraph (d) or (e) of subdivision one  of
section  160.10  of this [chapter] TITLE or the violation of operating a
motor vehicle while ability impaired as described in subdivision one  of
section  eleven hundred ninety-two of the vehicle and traffic law, shall
be sufficient notice of sealing to the commissioner of the  division  of
criminal  justice  services  unless  the  report also indicates that the
court directed that the  record  not  be  sealed  in  the  interests  of
justice.  Where  the court has determined pursuant to subdivision one of
this section that sealing is not in the interests of justice, the  clerk
of  the  court  shall  include notification of that determination in any
report to such division of the disposition of the action or  proceeding.
WHEN THE DEFENDANT HAS BEEN FOUND GUILTY OF A VIOLATION OF HARASSMENT IN
THE  SECOND DEGREE AND IT WAS DETERMINED PURSUANT TO SUBDIVISION EIGHT-A
OF SECTION 170.10 OF  THIS  TITLE  THAT  SUCH  VIOLATION  WAS  COMMITTED
AGAINST  A  MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS THE DEFENDANT, THE
CLERK OF THE COURT SHALL INCLUDE NOTIFICATION OF THAT  DETERMINATION  IN
ANY REPORT TO SUCH DIVISION OF THE DISPOSITION OF THE ACTION OR PROCEED-
ING FOR PURPOSES OF PARAGRAPH (A) AND SUBPARAGRAPH (VI) OF PARAGRAPH (D)
OF SUBDIVISION ONE OF THIS SECTION.
  S  11.  Section  170.10  of  the  criminal procedure law is amended by
adding a new subdivision 8-a to read as follows:

A. 9017                             7

  8-A.  (A)  WHERE  AN  INFORMATION,   A   SIMPLIFIED   INFORMATION,   A
PROSECUTOR'S INFORMATION, A MISDEMEANOR COMPLAINT, A FELONY COMPLAINT OR
AN  INDICTMENT  CHARGES  HARASSMENT  IN  THE SECOND DEGREE AS DEFINED IN
SECTION 240.26 OF THE PENAL LAW, THE PEOPLE MAY SERVE UPON THE DEFENDANT
AND  FILE WITH THE COURT A NOTICE ALLEGING THAT SUCH OFFENSE WAS COMMIT-
TED AGAINST A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS  THE  DEFENDANT,
AS  DEFINED  IN  SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER. SUCH
NOTICE MUST BE SERVED WITHIN FIFTEEN DAYS AFTER ARRAIGNMENT ON AN INFOR-
MATION, A SIMPLIFIED INFORMATION, A PROSECUTOR'S INFORMATION,  A  MISDE-
MEANOR  COMPLAINT,  A  FELONY COMPLAINT OR AN INDICTMENT FOR SUCH CHARGE
AND BEFORE TRIAL. SUCH NOTICE  MUST  INCLUDE  THE  NAME  OF  THE  PERSON
ALLEGED  TO BE A MEMBER OF THE SAME FAMILY OR HOUSEHOLD AS THE DEFENDANT
AND SPECIFY THE SPECIFIC FAMILY OR HOUSEHOLD RELATIONSHIP AS DEFINED  IN
SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER.
  (B)  IF  A  DEFENDANT, CHARGED WITH HARASSMENT IN THE SECOND DEGREE AS
DEFINED IN SECTION 240.26 OF THE PENAL LAW STIPULATES, OR ADMITS IN  THE
COURSE  OF  A PLEA DISPOSITION, THAT THE PERSON AGAINST WHOM THE CHARGED
OFFENSE IS ALLEGED TO HAVE BEEN COMMITTED IS A MEMBER OF THE SAME FAMILY
OR HOUSEHOLD AS THE DEFENDANT, AS DEFINED IN SUBDIVISION ONE OF  SECTION
530.11  OF THIS CHAPTER, SUCH ALLEGATION SHALL BE DEEMED ESTABLISHED FOR
PURPOSES OF PARAGRAPH (A) AND SUBPARAGRAPH  (VI)  OF  PARAGRAPH  (D)  OF
SUBDIVISION ONE OF SECTION 160.55 OF THIS TITLE. IF THE DEFENDANT DENIES
SUCH  ALLEGATION,  THE  PEOPLE  MAY, BY PROOF BEYOND A REASONABLE DOUBT,
PROVE AS PART OF THEIR CASE THAT THE ALLEGED VICTIM OF SUCH OFFENSE  WAS
A  MEMBER  OF  THE  SAME  FAMILY  OR HOUSEHOLD AS THE DEFENDANT. IN SUCH
CIRCUMSTANCES, THE TRIER OF  FACT  SHALL  MAKE  ITS  DETERMINATION  WITH
RESPECT TO SUCH ALLEGATION ORALLY ON THE RECORD OR IN WRITING.
  S  12. The opening paragraph of subdivision 5 of section 530.12 of the
criminal procedure law, as amended by chapter 215 of the laws  of  2006,
is amended to read as follows:
  Upon  conviction of any crime or violation between spouses, parent and
child, or between members of the same family or household AS DEFINED  IN
SUBDIVISION  ONE  OF  SECTION  530.11  OF THIS ARTICLE, the court may in
addition to any other disposition, including a conditional discharge  or
youthful  offender  adjudication,  enter an order of protection. Where a
temporary order of protection was issued, the court shall state  on  the
record  the  reasons  for issuing or not issuing an order of protection.
The duration of such an order shall be fixed by the court and[,]: (A) in
the case of a felony conviction, shall not exceed the  greater  of:  (i)
eight  years  from the date of such conviction, or (ii) eight years from
the date of the expiration of the maximum term of  an  indeterminate  or
the  term of a determinate sentence of imprisonment actually imposed; or
(B) in the case of a conviction for a class  A  misdemeanor,  shall  not
exceed  THE GREATER OF: (I) five years from the date of such conviction,
OR (II) FIVE YEARS FROM THE DATE OF THE EXPIRATION OF THE  MAXIMUM  TERM
OF  A DEFINITE OR INTERMITTENT TERM ACTUALLY IMPOSED; or (C) in the case
of a conviction for any other offense, shall not exceed THE GREATER  OF:
(I)  two  years  from the date of conviction, OR (II) TWO YEARS FROM THE
DATE OF THE EXPIRATION OF THE MAXIMUM TERM OF A DEFINITE OR INTERMITTENT
TERM ACTUALLY IMPOSED.  For purposes of determining the duration  of  an
order  of  protection entered pursuant to this subdivision, a conviction
shall be deemed to include a conviction that  has  been  replaced  by  a
youthful  offender  adjudication.  In  addition to any other conditions,
such an order may require the defendant:

A. 9017                             8

  S 13. The opening paragraph of subdivision 4 of section 530.13 of  the
criminal  procedure  law, as amended by chapter 215 of the laws of 2006,
is amended to read as follows:
  Upon  conviction  of  any  offense,  where the court has not issued an
order of protection pursuant to section  530.12  of  this  article,  the
court may, in addition to any other disposition, including a conditional
discharge   or   youthful  offender  adjudication,  enter  an  order  of
protection. Where a temporary order of protection was issued, the  court
shall  state  on  the  record  the reasons for issuing or not issuing an
order of protection. The duration of such an order shall be fixed by the
court and[,]; (A) in the case of a felony conviction, shall  not  exceed
the  greater  of:  (i)  eight years from the date of such conviction, or
(ii) eight years from the date of the expiration of the maximum term  of
an  indeterminate  or the term of a determinate sentence of imprisonment
actually imposed; or (B) in the case of  a  conviction  for  a  class  A
misdemeanor,  shall  not  exceed THE GREATER OF: (I) five years from the
date of such conviction, OR (II) FIVE YEARS FROM THE DATE OF THE EXPIRA-
TION OF THE MAXIMUM TERM OF A DEFINITE  OR  INTERMITTENT  TERM  ACTUALLY
IMPOSED; or (C) in the case of a conviction for any other offense, shall
not exceed THE GREATER OF: (I) two years from the date of conviction, OR
(II)  TWO YEARS FROM THE DATE OF THE EXPIRATION OF THE MAXIMUM TERM OF A
DEFINITE OR INTERMITTENT TERM ACTUALLY IMPOSED.  For purposes of  deter-
mining  the  duration of an order of protection entered pursuant to this
subdivision, a conviction shall be deemed to include a  conviction  that
has  been  replaced  by a youthful offender adjudication. In addition to
any other conditions such an order may require that the defendant:
  S 14. Consistent with  available  resources,  the  division  of  human
rights,  in  conjunction  with the office for the prevention of domestic
violence, shall develop training programs where necessary  to  implement
subdivision  20 of section 296 of the executive law, as added by a chap-
ter of the laws of 2009.
  S 15. This act shall take effect on the ninetieth day after  it  shall
have  become  a law; provided, however, sections seven, eight and ten of
this act shall take effect on the one hundred  twentieth  day  after  it
shall  have  become  a  law and shall apply to convictions entered on or
after such effective date; provided, however,  that  sections  nine  and
eleven of this act shall take effect on the thirtieth day after it shall
have  become  a  law;  and provided, further, that the amendments to the
opening paragraph of subdivision 5 of section  530.12  and  the  opening
paragraph  of  subdivision 4 of section 530.13 of the criminal procedure
law made by sections twelve and thirteen of this act  shall  not  affect
the  expiration  of such paragraphs and shall be deemed to expire there-
with.

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Assembly Bill A9017

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