S T A T E O F N E W Y O R K
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3458
2011-2012 Regular Sessions
I N A S S E M B L Y
January 25, 2011
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Introduced by M. of A. GABRYSZAK, WEISENBERG, MARKEY, COLTON, SPANO,
TITONE, CASTRO, HOOPER -- Multi-Sponsored by -- M. of A. ABBATE,
BOYLAND, BURLING, CALHOUN, CONTE, DESTITO, GIBSON, GIGLIO, GUNTHER,
MAYERSOHN, MOLINARO, MURRAY, RAIA, TOBACCO -- read once and referred
to the Committee on Codes
AN ACT to amend the penal law, in relation to the crime of domestic
abuse; and to amend the criminal procedure law, in relation to a judi-
cial diversion program for domestic abuse defendants
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding three new sections
120.80, 120.83 and 120.85 to read as follows:
S 120.80 DOMESTIC ABUSE IN THE THIRD DEGREE.
A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE THIRD DEGREE WHEN, WITH
INTENT TO HARASS, ANNOY, OR ALARM HIS OR HER SPOUSE, FORMER SPOUSE,
FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER, HE OR SHE
STRIKES, SHOVES, KICKS, OR OTHERWISE SUBJECTS SUCH PERSON TO PHYSICAL
CONTACT OR ATTEMPTS OR THREATENS TO DO THE SAME.
FOR PURPOSES OF THIS SECTION, "SPOUSE" SHALL MEAN PERSONS LEGALLY
MARRIED TO ONE ANOTHER, "FORMER SPOUSE" SHALL MEAN PERSONS FORMERLY
MARRIED TO ONE ANOTHER REGARDLESS OF WHETHER THEY STILL RESIDE IN THE
SAME HOUSEHOLD, "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN PERSONS
WHO HAVE A CHILD IN COMMON REGARDLESS OF WHETHER SUCH PERSONS HAVE BEEN
MARRIED OR HAVE LIVED TOGETHER, AND "DOMESTIC PARTNER" SHALL MEAN
PERSONS WHO ARE LIVING OR HAVE LIVED TOGETHER FOR AN EXTENDED DURATION
IN AN INTIMATE RELATIONSHIP MARKED BY SEXUAL, PHYSICAL, OR FINANCIAL
INTERDEPENDENCE.
DOMESTIC ABUSE IN THE THIRD DEGREE IS A CLASS B MISDEMEANOR.
S 120.83 DOMESTIC ABUSE IN THE SECOND DEGREE.
A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE SECOND DEGREE WHEN WITH
INTENT TO HARASS, ANNOY, OR ALARM HIS OR HER SPOUSE, FORMER SPOUSE,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08396-01-1
A. 3458 2
FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER, AS DEFINED IN
SECTION 120.80 OF THIS ARTICLE, HE OR SHE CAUSES SUCH PERSON PHYSICAL
INJURY.
DOMESTIC ABUSE IN THE SECOND DEGREE IS A CLASS A MISDEMEANOR.
S 120.85 DOMESTIC ABUSE IN THE FIRST DEGREE.
A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE FIRST DEGREE WHEN:
1. (A) WITH INTENT TO CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE,
FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER,
AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, HE OR SHE CAUSES SUCH
INJURY TO SUCH PERSON OR TO A THIRD PERSON; OR
(B) HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE,
FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR DOMESTIC PARTNER,
AS DEFINED IN SECTION 120.80 OF THIS ARTICLE; OR
(C) WITH CRIMINAL NEGLIGENCE, HE OR SHE CAUSES PHYSICAL INJURY TO HIS
OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON, OR
DOMESTIC PARTNER, AS DEFINED IN SECTION 120.80 OF THIS ARTICLE, BY MEANS
OF A DEADLY WEAPON OR A DANGEROUS INSTRUMENT; OR
2. HE OR SHE COMMITS THE CRIME OF DOMESTIC ABUSE IN THE SECOND DEGREE
AND HAS PREVIOUSLY BEEN CONVICTED OF THE CRIME OF DOMESTIC ABUSE IN ANY
DEGREE AS DEFINED IN THIS ARTICLE WITHIN THE PRECEDING FIVE YEARS.
DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY.
S 2. The criminal procedure law is amended by adding a new article 217
to read as follows:
ARTICLE 217
JUDICIAL DIVERSION PROGRAM FOR DOMESTIC ABUSE DEFENDANTS
SECTION 217.00 DEFINITIONS.
217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES.
S 217.00 DEFINITIONS.
THE FOLLOWING DEFINITIONS ARE APPLICABLE TO THIS ARTICLE:
1. "ELIGIBLE DEFENDANT" SHALL MEAN ANY PERSON WHO STANDS CHARGED WITH
DOMESTIC ABUSE AS DEFINED IN SECTIONS 120.80, 120.83 AND 120.85 OF THE
PENAL LAW, PROVIDED, HOWEVER, A DEFENDANT IS NOT AN "ELIGIBLE DEFENDANT"
IF HE OR SHE:
(A) WITHIN THE PRECEDING TEN YEARS, EXCLUDING ANY TIME DURING WHICH
THE OFFENDER WAS INCARCERATED FOR ANY REASON BETWEEN THE TIME OF COMMIS-
SION OF THE PREVIOUS OFFENSE AND THE TIME OF COMMISSION OF THE PRESENT
OFFENSE, HAS PREVIOUSLY BEEN CONVICTED OF: (I) A VIOLENT FELONY OFFENSE
AS DEFINED IN SECTION 70.02 OF THE PENAL LAW OR (II) ANY OTHER OFFENSE
FOR WHICH A MERIT TIME ALLOWANCE IS NOT AVAILABLE PURSUANT TO SUBPARA-
GRAPH (II) OF PARAGRAPH (D) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED
THREE OF THE CORRECTION LAW; OR
(B) HAS PREVIOUSLY BEEN ADJUDICATED A SECOND VIOLENT FELONY OFFENDER
PURSUANT TO SECTION 70.04 OF THE PENAL LAW OR A PERSISTENT VIOLENT FELO-
NY OFFENDER PURSUANT TO SECTION 70.08 OF THE PENAL LAW.
2. "DOMESTIC VIOLENCE PROGRAM" SHALL MEAN A PROGRAM WHICH IS OPERATED
BY A PUBLIC OR NOT-FOR-PROFIT ORGANIZATION FOR THE PURPOSE OF PROVIDING
DOMESTIC VIOLENCE PREVENTION WHOSE GOAL IS TO HELP ELIGIBLE DEFENDANTS
END ABUSIVE BEHAVIOR.
S 217.05 JUDICIAL DIVERSION PROGRAM; COURT PROCEDURES.
1. AT ANY TIME AFTER THE ARRAIGNMENT OF AN ELIGIBLE DEFENDANT, BUT
PRIOR TO THE ENTRY OF A PLEA OF GUILTY OR THE COMMENCEMENT OF TRIAL, THE
COURT MAY DETERMINE THAT AN ELIGIBLE DEFENDANT SHOULD BE OFFERED JUDI-
CIAL DIVERSION IN A DOMESTIC VIOLENCE PROGRAM. AN ELIGIBLE DEFENDANT MAY
DECLINE TO PARTICIPATE IN SUCH A PROGRAM AT ANY TIME. PRIOR TO THE
COURT'S ISSUING AN ORDER GRANTING JUDICIAL DIVERSION, THE ELIGIBLE
A. 3458 3
DEFENDANT SHALL BE REQUIRED TO ENTER A PLEA OF GUILTY TO THE CHARGE OR
CHARGES; PROVIDED, HOWEVER, THAT NO GUILTY PLEA SHALL BE REQUIRED WHEN:
(A) THE PEOPLE AND THE COURT CONSENT TO THE ENTRY OF SUCH AN ORDER
WITHOUT A PLEA OF GUILTY; OR
(B) BASED ON A FINDING OF EXCEPTIONAL CIRCUMSTANCES, THE COURT DETER-
MINES THAT A PLEA OF GUILTY SHALL NOT BE REQUIRED. FOR PURPOSES OF THIS
SUBDIVISION, EXCEPTIONAL CIRCUMSTANCES EXIST WHEN, REGARDLESS OF THE
ULTIMATE DISPOSITION OF THE CASE, THE ENTRY OF A PLEA OF GUILTY IS LIKE-
LY TO RESULT IN SEVERE COLLATERAL CONSEQUENCES.
2. THE ELIGIBLE DEFENDANT SHALL AGREE ON THE RECORD OR IN WRITING TO
ABIDE BY THE RELEASE CONDITIONS SET BY THE COURT, WHICH, SHALL INCLUDE:
PARTICIPATION IN A SPECIFIED DOMESTIC VIOLENCE PROGRAM; PERIODIC COURT
APPEARANCES; AND A REQUIREMENT THAT THE DEFENDANT REFRAIN FROM ENGAGING
IN CRIMINAL BEHAVIORS.
3. UPON AN ELIGIBLE DEFENDANT'S AGREEMENT TO ABIDE BY THE CONDITIONS
SET BY THE COURT, THE COURT SHALL ISSUE A SECURING ORDER PROVIDING FOR
BAIL OR RELEASE ON THE DEFENDANT'S OWN RECOGNIZANCE AND CONDITIONING ANY
RELEASE UPON THE AGREED UPON CONDITIONS. THE DOMESTIC VIOLENCE PROGRAM
SHALL BEGIN AS SPECIFIED BY THE COURT AND AS SOON AS PRACTICABLE AFTER
THE DEFENDANT'S RELEASE. IN THE EVENT THAT A DOMESTIC VIOLENCE PROGRAM
IS NOT IMMEDIATELY AVAILABLE OR BECOMES UNAVAILABLE DURING THE COURSE OF
THE DEFENDANT'S PARTICIPATION IN THE JUDICIAL DIVERSION PROGRAM, THE
COURT MAY RELEASE THE DEFENDANT PURSUANT TO THE SECURING ORDER.
4. DURING THE PERIOD OF A DEFENDANT'S PARTICIPATION IN THE JUDICIAL
DIVERSION PROGRAM, THE COURT SHALL RETAIN JURISDICTION OF THE DEFENDANT.
THE COURT MAY REQUIRE THE DEFENDANT TO APPEAR IN COURT AT ANY TIME TO
ENABLE THE COURT TO MONITOR THE DEFENDANT'S PROGRESS IN THE PROGRAM. THE
COURT SHALL PROVIDE NOTICE, REASONABLE UNDER THE CIRCUMSTANCES, TO THE
PEOPLE, THE DOMESTIC VIOLENCE PROGRAM PROVIDER, THE DEFENDANT AND THE
DEFENDANT'S COUNSEL WHENEVER IT ORDERS OR OTHERWISE REQUIRES THE APPEAR-
ANCE OF THE DEFENDANT IN COURT. FAILURE TO APPEAR AS REQUIRED WITHOUT
REASONABLE CAUSE THEREFOR SHALL CONSTITUTE A VIOLATION OF THE CONDITIONS
OF THE COURT'S AGREEMENT WITH THE DEFENDANT.
5. UPON THE COURT'S DETERMINATION THAT THE DEFENDANT HAS SUCCESSFULLY
COMPLETED THE DOMESTIC VIOLENCE PROGRAM AND HAS OTHERWISE SATISFIED THE
CONDITIONS REQUIRED FOR SUCCESSFUL COMPLETION OF THE JUDICIAL DIVERSION
PROGRAM, THE COURT SHALL COMPLY WITH THE TERMS AND CONDITIONS IT SET FOR
FINAL DISPOSITION WHEN IT ACCEPTED THE DEFENDANT'S AGREEMENT TO PARTIC-
IPATE IN THE JUDICIAL DIVERSION PROGRAM. SUCH DISPOSITION MAY INCLUDE,
BUT IS NOT LIMITED TO:
(A) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION
SUPERVISION AND, UPON THE DEFENDANT'S SUCCESSFUL COMPLETION OF THE
INTERIM PROBATION SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY
OTHER LAW, PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA
AND DISMISSING THE INDICTMENT; OR
(B) REQUIRING THE DEFENDANT TO UNDERGO A PERIOD OF INTERIM PROBATION
SUPERVISION AND, UPON SUCCESSFUL COMPLETION OF THE INTERIM PROBATION
SUPERVISION TERM, NOTWITHSTANDING THE PROVISION OF ANY OTHER LAW,
PERMITTING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA, ENTER A
GUILTY PLEA TO A MISDEMEANOR OFFENSE AND SENTENCING THE DEFENDANT AS
PROMISED IN THE PLEA AGREEMENT, WHICH MAY INCLUDE A PERIOD OF PROBATION
SUPERVISION PURSUANT TO SECTION 65.00 OF THE PENAL LAW; OR
(C) ALLOWING THE DEFENDANT TO WITHDRAW HIS OR HER GUILTY PLEA AND
DISMISSING THE INDICTMENT.
S 3. This act shall take effect on the ninetieth day after it shall
have become a law.