NY State Senate Bill 2011-S5617

Senate Bill S5617

2011-2012 Legislative Session

Establishes the crime of aggravated domestic violence; enacts Officer Alain Schaberger's law

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Archive: Last Bill Status - In Senate Committee Codes Committee

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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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 04, 2012	referred to codes
Jun 10, 2011	print number 5617a
Jun 10, 2011	amend and recommit to codes
Jun 07, 2011	referred to codes

Bill Amendments

Original

A (Active)

co-Sponsors

2011-S5617 - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §240.75, Pen L; add §200.63, CP L

2011-S5617 - Summary

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.

2011-S5617 - Sponsor Memo

                                BILL NUMBER:S5617

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law, in relation to
the creation of the crime of aggravated domestic violence

PURPOSE:
To create a felony-level charge for cases in which an offender is
repeatedly convicted of a domestic violence offense.

SUMMARY OF PROVISIONS:
Section 2 establishes the crime of aggravated domestic violence as a
Class E felony and outlines the incidents that in the aggregate
constitute the new offense.

Section 3 provides that a special information may be included with an
indictment of aggravated domestic violence. This section sets forth
the procedure for trying the case and states that determinations made
regarding certain allegations are binding in any future proceeding
unless the conviction or determination is reversed or vacated.

Section 4 establishes an effective date of 90 days after passage.

JUSTIFICATION:
From 2004 to 2009, in New York County alone, there were 622

individuals convicted of two or more domestic violence offenses. Of
those 622 defendants, 221 - or .36% had at least one case with a
felony-level assault charge.

Recently New York City Police Officer Alain Schaberger was killed
while responding to a case of domestic violence. It is our intent to
honor his memory and to help protect victims of domestic violence.

The following cases from the New York County District Attorney's
Office illustrate the types of cases that prosecutors see every day:

* After a long misdemeanor domestic violence history, involving
multiple assaults, violations of orders of protection, a defendant
chased his girlfriend down the street with a machete, biting and
clawing at her in front of her three year old child.

* Shortly after pleading guilty to assaulting his spouse in front of
their children, a defendant went back to victim's apartment and hit her
in the face. Only $500 cash bail was set when defendant was arrested
again.

* A defendant has 132 prior convictions, many of which stemmed from
assaults against his partner. The defendant recently served 9 months
in jail for an assault against his daughter. Since his release on
that case, the defendant has been arrested again for domestic assault.

* One repeat domestic violence offender assaults his girlfriend each
time he is released from custody. Most recently, he was indicted for
biting the victim's face.


* After badly beating his pregnant ex-girlfriend, a defendant was
arrested. He continued to call his ex-girlfriend, threatening her
from jail. He was re-arrested, and pleaded guilty to both cases.

* A defendant with two prior convictions for assaulting his girlfriend
was recently rearrested and currently charged with a felony.

LEGISLATIVE HISTORY:
S.8038 (Squadron) - Codes; A.11365 (Rosenthal) - Codes

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
90 days after becoming law.

2011-S5617 - Bill Text download pdf

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

                                  5617

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              June 7, 2011
                               ___________

Introduced  by Sens. GOLDEN, SQUADRON -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes

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:

  Section 1. This act shall be known and may be cited as "Officer  Alain
Schaberger's law".
  S  2.  The penal law is amended by adding a new section 240.75 to read
as follows:
S 240.75 AGGRAVATED DOMESTIC VIOLENCE.
  1. A PERSON IS GUILTY OF AGGRAVATED DOMESTIC VIOLENCE WHEN HE  OR  SHE
COMMITS  A  SPECIFIED  DOMESTIC  VIOLENCE OFFENSE AND HE OR SHE HAS BEEN
CONVICTED OF ONE OR MORE SPECIFIED DOMESTIC VIOLENCE OFFENSES WITHIN THE
IMMEDIATELY PRECEDING FIVE YEARS. FOR THE PURPOSES OF THIS  SECTION,  IN
CALCULATING  THE  FIVE  YEAR PERIOD, ANY PERIOD OF TIME DURING WHICH THE
DEFENDANT WAS INCARCERATED FOR  ANY  REASON  BETWEEN  THE  TIME  OF  THE
COMMISSION OF ANY OF THE PREVIOUS OFFENSES AND THE TIME OF COMMISSION OF
THE  PRESENT  CRIME SHALL BE EXCLUDED AND SUCH FIVE YEAR PERIOD SHALL BE
EXTENDED BY A PERIOD OR PERIODS EQUAL TO  THE  TIME  SERVED  UNDER  SUCH
INCARCERATION.
  2.  A  "SPECIFIED  DOMESTIC  VIOLENCE OFFENSE" IS AN OFFENSE WHERE THE
DEFENDANT AND THE PERSON AGAINST WHOM THE OFFENSE IS  COMMITTED  ARE  OR
WERE  AT  A  PREVIOUS  TIME  MEMBERS  OF THE SAME FAMILY OR HOUSEHOLD AS
DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THE  CRIMINAL  PROCEDURE
LAW  AND  WHERE THAT OFFENSE INCLUDES ANY OF THE FOLLOWING PROVISIONS OF
THIS CHAPTER: SECTION 120.00 (ASSAULT  IN  THE  THIRD  DEGREE);  SECTION
120.05  (ASSAULT  IN  THE SECOND DEGREE); SECTION 120.10 (ASSAULT IN THE
FIRST DEGREE); SECTION 120.13 (MENACING IN THE  FIRST  DEGREE);  SECTION
120.14  (MENACING IN THE SECOND DEGREE); SECTION 120.15 (MENACING IN THE
THIRD DEGREE); SECTION  120.20  (RECKLESS  ENDANGERMENT  IN  THE  SECOND

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11977-02-1

S. 5617                             2

DEGREE);  SECTION  120.25  (RECKLESS  ENDANGERMENT IN THE FIRST DEGREE);
SECTION 120.45 (STALKING IN THE FOURTH DEGREE); SECTION 120.50 (STALKING
IN THE THIRD DEGREE); SECTION 120.55 (STALKING IN  THE  SECOND  DEGREE);
SECTION  120.60 (STALKING IN THE FIRST DEGREE); SECTION 121.11 (CRIMINAL
OBSTRUCTION OF BREATHING OR BLOOD CIRCULATION); SECTION 121.12 (STRANGU-
LATION IN THE SECOND DEGREE); SECTION 121.13 (STRANGULATION IN THE FIRST
DEGREE); SUBDIVISION ONE OF SECTION 125.15 (MANSLAUGHTER IN  THE  SECOND
DEGREE); SUBDIVISION ONE, TWO OR FOUR OF SECTION 125.20 (MANSLAUGHTER IN
THE FIRST DEGREE); SECTION 125.25 (MURDER IN THE SECOND DEGREE); SECTION
130.20  (SEXUAL MISCONDUCT); SECTION 130.30 (RAPE IN THE SECOND DEGREE);
SECTION 130.35 (RAPE IN THE  FIRST  DEGREE);  SECTION  130.40  (CRIMINAL
SEXUAL  ACT IN THE THIRD DEGREE); SECTION 130.45 (CRIMINAL SEXUAL ACT IN
THE SECOND DEGREE); SECTION 130.50 (CRIMINAL SEXUAL  ACT  IN  THE  FIRST
DEGREE);  SECTION 130.52 (FORCIBLE TOUCHING); SECTION 130.53 (PERSISTENT
SEXUAL ABUSE); SECTION  130.55  (SEXUAL  ABUSE  IN  THE  THIRD  DEGREE);
SECTION  130.60  (SEXUAL  ABUSE  IN  THE  SECOND DEGREE); SECTION 130.65
(SEXUAL ABUSE IN THE FIRST DEGREE); SECTION  130.66  (AGGRAVATED  SEXUAL
ABUSE  IN  THE THIRD DEGREE); SECTION 130.67 (AGGRAVATED SEXUAL ABUSE IN
THE SECOND DEGREE); SECTION 130.70 (AGGRAVATED SEXUAL ABUSE IN THE FIRST
DEGREE); SECTION 130.91  (SEXUALLY  MOTIVATED  FELONY);  SECTION  130.95
(PREDATORY  SEXUAL  ASSAULT);  SECTION  130.96 (PREDATORY SEXUAL ASSAULT
AGAINST A CHILD); SECTION 135.05 (UNLAWFUL IMPRISONMENT  IN  THE  SECOND
DEGREE);  SECTION  135.10  (UNLAWFUL  IMPRISONMENT IN THE FIRST DEGREE);
SECTION 135.60 (COERCION IN THE SECOND DEGREE); SECTION 135.65 (COERCION
IN THE FIRST DEGREE); SECTION 140.10 (CRIMINAL  TRESPASS  IN  THE  THIRD
DEGREE);  SECTION  140.15  (CRIMINAL  TRESPASS  IN  THE  SECOND DEGREE);
SECTION 140.17 (CRIMINAL TRESPASS IN THE FIRST DEGREE);  SECTION  140.20
(BURGLARY  IN  THE THIRD DEGREE); SECTION 140.25 (BURGLARY IN THE SECOND
DEGREE); SECTION 140.30 (BURGLARY IN THE FIRST DEGREE);  SECTION  145.00
(CRIMINAL  MISCHIEF  IN  THE  FOURTH  DEGREE);  SECTION 145.05 (CRIMINAL
MISCHIEF IN THE THIRD DEGREE); SECTION 145.10 (CRIMINAL MISCHIEF IN  THE
SECOND  DEGREE); SECTION 145.12 (CRIMINAL MISCHIEF IN THE FIRST DEGREE);
SECTION 145.14 (CRIMINAL TAMPERING IN THE THIRD DEGREE); SECTION  215.50
(CRIMINAL  CONTEMPT  IN  THE  SECOND  DEGREE);  SECTION 215.51 (CRIMINAL
CONTEMPT IN THE  FIRST  DEGREE);  SECTION  215.52  (AGGRAVATED  CRIMINAL
CONTEMPT);  SECTION 240.25 (HARASSMENT IN THE FIRST DEGREE); SUBDIVISION
ONE, TWO OR FOUR OF SECTION 240.30 (AGGRAVATED HARASSMENT IN THE  SECOND
DEGREE);  OR  ANY  ATTEMPT  OR CONSPIRACY TO COMMIT ANY OF THE FOREGOING
OFFENSES.
  3. THE PERSON AGAINST WHOM THE SPECIFIED DOMESTIC VIOLENCE OFFENSE  IS
COMMITTED  MAY  BE DIFFERENT FROM THE PERSON AGAINST WHOM THE PREVIOUSLY
COMMITTED SPECIFIED DOMESTIC VIOLENCE OFFENSE WAS COMMITTED.
  AGGRAVATED DOMESTIC VIOLENCE IS A CLASS E FELONY.
  S 3. The criminal procedure law is amended by  adding  a  new  section
200.63 to read as follows:
S 200.63 INDICTMENT;   SPECIAL   INFORMATION   FOR  AGGRAVATED  DOMESTIC
           VIOLENCE OFFENDER.
  1. WHENEVER A PERSON IS  CHARGED  WITH  THE  COMMISSION  OR  ATTEMPTED
COMMISSION  OF AGGRAVATED DOMESTIC VIOLENCE AS DEFINED IN SECTION 240.75
OF THE PENAL LAW, AN INDICTMENT OR INFORMATION FOR SUCH OFFENSE SHALL BE
ACCOMPANIED BY A SPECIAL INFORMATION, FILED  BY  THE  DISTRICT  ATTORNEY
WITH  THE COURT, ALLEGING THAT THE DEFENDANT WAS PREVIOUSLY CONVICTED OF
AGGRAVATED DOMESTIC VIOLENCE AS DEFINED IN SECTION 240.75 OF  THE  PENAL
LAW,  OR OF A SPECIFIED DOMESTIC VIOLENCE OFFENSE AS DEFINED IN SUBDIVI-
SION TWO OF SECTION 240.75 OF THE PENAL LAW, THAT AT  THE  TIME  OF  THE
PREVIOUS  OFFENSE  OR  AT  AN  EARLIER TIME THE DEFENDANT AND THE PERSON

S. 5617                             3

AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE  SAME  FAMILY
OR  HOUSEHOLD  AS  DEFINED  IN SUBDIVISION ONE OF SECTION 530.11 OF THIS
CHAPTER, AND THAT SUCH PREVIOUS CONVICTION TOOK PLACE  WITHIN  THE  TIME
PERIOD  SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF THE PENAL LAW.
EXCEPT AS PROVIDED HEREIN, THE PEOPLE MAY  NOT  REFER  TO  SUCH  SPECIAL
INFORMATION  DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING THE ALLEGA-
TIONS THEREIN.
  2. AT ANY TIME BEFORE THE CLOSE OF THE PEOPLE'S CASE,  THE  COURT,  IN
THE  ABSENCE  OF THE JURY, MUST ARRAIGN THE DEFENDANT UPON SUCH INFORMA-
TION AND ADVISE HIM OR HER THAT HE OR SHE MAY ADMIT  EACH  SUCH  ALLEGA-
TION,  DENY  ANY SUCH ALLEGATION OR REMAIN MUTE WITH RESPECT TO ANY SUCH
ALLEGATION. DEPENDING UPON THE DEFENDANT'S RESPONSE, THE  TRIAL  OF  THE
INDICTMENT OR INFORMATION MUST THEN PROCEED AS FOLLOWS:
  (A)(I)  IF THE PREVIOUS CONVICTION IS FOR AGGRAVATED DOMESTIC VIOLENCE
AS DEFINED IN SECTION 240.75 OF THE PENAL LAW, AND THE DEFENDANT  ADMITS
THE  PREVIOUS  CONVICTION  OR  THAT IT TOOK PLACE WITHIN THE TIME PERIOD
SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF  THE  PENAL  LAW,  THE
ADMITTED  ALLEGATION  OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR ALL
SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION  70.00  OF
THE  PENAL  LAW.    THE COURT MUST SUBMIT THE CASE TO THE JURY AS IF THE
ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE
COURT MAY NOT SUBMIT TO THE JURY ANY LESSER INCLUDED  OFFENSE  WHICH  IS
DISTINGUISHED  FROM  THE  OFFENSE  CHARGED  SOLELY  BY THE FACT THAT THE
PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF.
  (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR  REMAINS  MUTE
WITH  RESPECT  TO  IT,  THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE
BEFORE THE JURY AS A PART OF THEIR CASE.
  (III) IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK  PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE  PENAL  LAW, OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE
MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART  OF  THEIR
CASE,  THAT  THE  PREVIOUS  CONVICTION TOOK PLACE WITHIN THE TIME PERIOD
SPECIFIED.
  (B)(I) IF THE PREVIOUS CONVICTION IS FOR A SPECIFIED DOMESTIC VIOLENCE
OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION  240.75  OF  THE  PENAL
LAW,  AND  THE  DEFENDANT  ADMITS  THE PREVIOUS CONVICTION, THAT IT TOOK
PLACE WITHIN THE TIME PERIOD SPECIFIED IN  SUBDIVISION  ONE  OF  SECTION
240.75  OF  THE  PENAL LAW, OR THAT THE DEFENDANT AND THE PERSON AGAINST
WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY OR HOUSE-
HOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11  OF  THIS  CHAPTER,
THE  ADMITTED  ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR
ALL SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION  70.00
OF  THE  PENAL LAW. THE COURT MUST SUBMIT THE CASE TO THE JURY AS IF THE
ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE
COURT MAY NOT SUBMIT TO THE JURY ANY LESSER INCLUDED  OFFENSE  WHICH  IS
DISTINGUISHED  FROM  THE  OFFENSE  CHARGED  SOLELY  BY THE FACT THAT THE
PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF.
  (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR  REMAINS  MUTE
WITH  RESPECT  TO  IT,  THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE
BEFORE THE JURY AS A PART OF THEIR CASE.
  (III) IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK  PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE  PENAL  LAW, OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE
MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART  OF  THEIR
CASE,  THAT  THE  PREVIOUS  CONVICTION TOOK PLACE WITHIN THE TIME PERIOD
SPECIFIED.

S. 5617                             4

  (IV) IF THE DEFENDANT DENIES THAT THE DEFENDANT AND THE PERSON AGAINST
WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY OR HOUSE-
HOLD AS DEFINED IN SUBDIVISION ONE OF SECTION 530.11 OF THIS CHAPTER, OR
REMAINS MUTE WITH RESPECT TO THAT MATTER,  THE  PEOPLE  MAY  PROVE  THAT
ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE.
  3.  NOTWITHSTANDING  SUBDIVISION ONE AND SUBPARAGRAPH (I) OF PARAGRAPH
(A) AND SUBPARAGRAPH (I) OF PARAGRAPH (B) OF  SUBDIVISION  TWO  OF  THIS
SECTION  IF EVIDENCE REGARDING THE PRIOR CONVICTION, OR THAT THE DEFEND-
ANT AND THE PERSON AGAINST WHOM THE OFFENSE WAS COMMITTED  WERE  MEMBERS
OF  THE  SAME  FAMILY  OR  HOUSEHOLD,  AS  DEFINED IN SUBDIVISION ONE OF
SECTION 530.11 OF THIS CHAPTER, IS RELEVANT TO HELP PROVE THE  CRIME  OR
CRIMES  CHARGED IN THE INDICTMENT OR INFORMATION, SUCH EVIDENCE SHALL BE
ADMISSIBLE.
  4. A DETERMINATION PURSUANT TO THIS SECTION THAT THE DEFENDANT  HAS  A
PREVIOUS CONVICTION, THAT AT THE TIME OF THE PRIOR OFFENSE THE DEFENDANT
AND  THE  PERSON  AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF
THE SAME FAMILY OR HOUSEHOLD, AS DEFINED IN SUBDIVISION ONE  OF  SECTION
530.11 OF THIS CHAPTER, OR THAT THE PREVIOUS CONVICTION TOOK PLACE WITH-
IN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF THE
PENAL  LAW, SHALL BE BINDING IN ANY FUTURE PROCEEDING IN WHICH THE ISSUE
MAY ARISE UNLESS THE CONVICTION FOR  THE  AGGRAVATED  DOMESTIC  VIOLENCE
OFFENSE CHARGED IN THE INDICTMENT OR INFORMATION IS VACATED OR REVERSED.
  S  4.  This  act shall take effect on the ninetieth day after it shall
have become a law.

co-Sponsors

2011-S5617A (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Add §240.75, Pen L; add §200.63, CP L

2011-S5617A (ACTIVE) - Summary

2011-S5617A (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S5617A

TITLE OF BILL:
An act
to amend the penal law and the criminal procedure law, in relation to
the creation of the crime of aggravated domestic violence

PURPOSE:
To create a felony-level charge for cases in which an offender is
repeatedly convicted of a domestic violence offense.

SUMMARY OF PROVISIONS:
Section 2 establishes the crime of aggravated domestic violence as a
Class E felony and outlines the incidents that in the aggregate
constitute the new offense.

Section 3 provides that a special information maybe included with an
indictment of aggravated domestic violence. This section sets forth
the procedure for trying the case and states that determinations made
regarding certain allegations are binding in any future proceeding
unless the conviction or determination is reversed or vacated.

Section 4 establishes an effective date of 90 days after passage.

JUSTIFICATION:
From 2004 to 2009, in New York County alone, there were 622

individuals convicted of two or more domestic violence offenses. Of
those 622 defendants, 221 - or .36% had at least one case with a
felony-level assault charge.

Recently New York City Police Officer Alain Schaberger was killed
while responding to a case of domestic violence. It is our intent to
honor his memory and to help protect victims of domestic violence.

The following cases from the New York County District Attorney's
Office illustrate the types of cases that prosecutors see every day:

* After a long misdemeanor domestic violence history, involving
multiple assaults, violations of orders of protection, a defendant
chased his girlfriend down the street with a machete, biting and
clawing at her in front of her three year old child.

* Shortly after pleading guilty to assaulting his spouse in front of
their children, a defendant went back to victim's apartment and hit
her in the face. Only $500 cash bail was set when defendant was
arrested again.

* A defendant has 132 prior convictions, many of which stemmed from
assaults against his partner. The defendant recently served 9 months
in jail for an assault against his daughter. Since his release on
that case, the defendant has been arrested again for domestic assault.

* One repeat domestic violence offender assaults his girlfriend each
time he is released from custody. Most recently, he was indicted for
biting the victim's face.

* After badly beating his pregnant ex-girlfriend, a defendant was
arrested. He continued to call his ex-girlfriend, threatening her
from jail. He was re-arrested, and pleaded guilty to both cases.

* A defendant with two prior convictions for assaulting his girlfriend
was recently rearrested and currently charged with a felony.

LEGISLATIVE HISTORY:
S.8038 (Squadron) - Codes; A.11365 (Rosenthal) - Codes

FISCAL IMPLICATIONS:
None.

LOCAL FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
90 days after becoming law.

2011-S5617A (ACTIVE) - Bill Text download pdf

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

                                 5617--A

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                              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:

  Section  1. This act shall be known and may be cited as "Officer Alain
Schaberger's law".
  S 2. The penal law is amended by adding a new section 240.75  to  read
as follows:
S 240.75 AGGRAVATED FAMILY OFFENSE.
  1.  A  PERSON  IS  GUILTY  OF AGGRAVATED FAMILY OFFENSE WHEN HE OR SHE
COMMITS A SPECIFIED OFFENSE AND HE OR SHE HAS BEEN CONVICTED OF  ONE  OR
MORE SPECIFIED OFFENSES WITHIN THE IMMEDIATELY PRECEDING FIVE YEARS. FOR
THE  PURPOSES  OF THIS SUBDIVISION, IN CALCULATING THE FIVE YEAR PERIOD,
ANY PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED  FOR  ANY
REASON  BETWEEN  THE  TIME  OF  THE  COMMISSION  OF ANY OF SUCH PREVIOUS
OFFENSES AND THE TIME OF  COMMISSION  OF  THE  PRESENT  CRIME  SHALL  BE
EXCLUDED  AND  SUCH  FIVE  YEAR  PERIOD SHALL BE EXTENDED BY A PERIOD OR
PERIODS EQUAL TO THE TIME SERVED UNDER SUCH INCARCERATION.
  2. A "SPECIFIED OFFENSE" IS  AN  OFFENSE  DEFINED  IN  SECTION  120.00
(ASSAULT  IN  THE  THIRD  DEGREE); SECTION 120.05 (ASSAULT IN THE SECOND
DEGREE); SECTION 120.10 (ASSAULT IN THE FIRST  DEGREE);  SECTION  120.13
(MENACING  IN  THE FIRST DEGREE); SECTION 120.14 (MENACING IN THE SECOND
DEGREE); SECTION 120.15 (MENACING IN THE THIRD DEGREE);  SECTION  120.20
(RECKLESS  ENDANGERMENT  IN THE SECOND DEGREE); SECTION 120.25 (RECKLESS
ENDANGERMENT IN THE FIRST  DEGREE);  SECTION  120.45  (STALKING  IN  THE
FOURTH  DEGREE);  SECTION 120.50 (STALKING IN THE THIRD DEGREE); SECTION
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

FIRST  DEGREE);  SECTION  121.11  (CRIMINAL  OBSTRUCTION OF BREATHING OR
BLOOD CIRCULATION); SECTION 121.12 (STRANGULATION IN THE SECOND DEGREE);
SECTION 121.13 (STRANGULATION IN THE FIRST DEGREE); SUBDIVISION  ONE  OF
SECTION 125.15 (MANSLAUGHTER IN THE SECOND DEGREE); SUBDIVISION ONE, TWO
OR  FOUR  OF  SECTION 125.20 (MANSLAUGHTER IN THE FIRST DEGREE); SECTION
125.25 (MURDER IN THE SECOND DEGREE);  SECTION  130.20  (SEXUAL  MISCON-
DUCT);  SECTION 130.30 (RAPE IN THE SECOND DEGREE); SECTION 130.35 (RAPE
IN THE FIRST DEGREE); SECTION 130.40 (CRIMINAL SEXUAL ACT IN  THE  THIRD
DEGREE);  SECTION  130.45  (CRIMINAL  SEXUAL  ACT IN THE SECOND DEGREE);
SECTION 130.50 (CRIMINAL SEXUAL ACT IN THE FIRST DEGREE); SECTION 130.52
(FORCIBLE TOUCHING); SECTION 130.53 (PERSISTENT SEXUAL  ABUSE);  SECTION
130.55  (SEXUAL ABUSE IN THE THIRD DEGREE); SECTION 130.60 (SEXUAL ABUSE
IN THE SECOND  DEGREE);  SECTION  130.65  (SEXUAL  ABUSE  IN  THE  FIRST
DEGREE);  SECTION  130.66 (AGGRAVATED SEXUAL ABUSE IN THE THIRD DEGREE);
SECTION 130.67 (AGGRAVATED SEXUAL ABUSE IN THE SECOND  DEGREE);  SECTION
130.70  (AGGRAVATED  SEXUAL  ABUSE  IN THE FIRST DEGREE); SECTION 130.91
(SEXUALLY MOTIVATED FELONY); SECTION 130.95 (PREDATORY SEXUAL  ASSAULT);
SECTION  130.96  (PREDATORY  SEXUAL  ASSAULT  AGAINST  A CHILD); SECTION
135.05 (UNLAWFUL IMPRISONMENT IN  THE  SECOND  DEGREE);  SECTION  135.10
(UNLAWFUL IMPRISONMENT IN THE FIRST DEGREE); SECTION 135.60 (COERCION IN
THE  SECOND  DEGREE);  SECTION  135.65  (COERCION  IN THE FIRST DEGREE);
SECTION 140.20 (BURGLARY IN THE THIRD DEGREE); SECTION 140.25  (BURGLARY
IN  THE  SECOND  DEGREE); SECTION 140.30 (BURGLARY IN THE FIRST DEGREE);
SECTION 145.00 (CRIMINAL MISCHIEF IN THE FOURTH DEGREE); SECTION  145.05
(CRIMINAL  MISCHIEF  IN  THE  THIRD  DEGREE);  SECTION  145.10 (CRIMINAL
MISCHIEF IN THE SECOND DEGREE); SECTION 145.12 (CRIMINAL MISCHIEF IN THE
FIRST DEGREE); SECTION 145.14 (CRIMINAL TAMPERING IN THE THIRD  DEGREE);
SECTION  215.50 (CRIMINAL CONTEMPT IN THE SECOND DEGREE); SECTION 215.51
(CRIMINAL CONTEMPT IN THE  FIRST  DEGREE);  SECTION  215.52  (AGGRAVATED
CRIMINAL  CONTEMPT);  SECTION  240.25  (HARASSMENT IN THE FIRST DEGREE);
SUBDIVISION ONE, TWO OR FOUR OF SECTION 240.30 (AGGRAVATED HARASSMENT IN
THE SECOND DEGREE); AGGRAVATED FAMILY OFFENSE AS DEFINED IN THIS SECTION
OR ANY ATTEMPT OR CONSPIRACY TO  COMMIT  ANY  OF  THE  FOREGOING  FELONY
OFFENSES WHERE THE DEFENDANT AND THE PERSON AGAINST WHOM THE OFFENSE WAS
COMMITTED  WERE  MEMBERS  OF  THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN
SUBDIVISION ONE OF SECTION 530.11 OF THE CRIMINAL PROCEDURE LAW.
  3. THE PERSON AGAINST WHOM THE CURRENT SPECIFIED OFFENSE IS  COMMITTED
MAY  BE  DIFFERENT  FROM  THE PERSON AGAINST WHOM THE PREVIOUS SPECIFIED
OFFENSE WAS COMMITTED AND, SUCH PERSONS DO NOT NEED TO BE MEMBERS OF THE
SAME FAMILY OR HOUSEHOLD.
  AGGRAVATED FAMILY OFFENSE IS A CLASS E FELONY.
  S 3. The criminal procedure law is amended by  adding  a  new  section
200.63 to read as follows:
S 200.63 INDICTMENT; SPECIAL INFORMATION FOR AGGRAVATED FAMILY OFFENSE.
  1.  WHENEVER  A  PERSON  IS  CHARGED  WITH THE COMMISSION OR ATTEMPTED
COMMISSION OF AN AGGRAVATED FAMILY OFFENSE AS DEFINED IN SECTION  240.75
OF THE PENAL LAW, AN INDICTMENT OR INFORMATION FOR SUCH OFFENSE SHALL BE
ACCOMPANIED  BY  A  SPECIAL  INFORMATION, FILED BY THE DISTRICT ATTORNEY
WITH THE COURT, ALLEGING THAT THE DEFENDANT WAS PREVIOUSLY CONVICTED  OF
A  SPECIFIED  OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION 240.75 OF
THE PENAL LAW, THAT AT THE TIME OF THE PREVIOUS  OFFENSE  THE  DEFENDANT
AND  THE  PERSON  AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS OF
THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION  ONE  OF  SECTION
530.11  OF  THIS  CHAPTER,  AND THAT SUCH PREVIOUS CONVICTION TOOK PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE PENAL LAW. EXCEPT AS PROVIDED HEREIN, THE PEOPLE MAY  NOT  REFER  TO

S. 5617--A                          3

SUCH SPECIAL INFORMATION DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING
THE ALLEGATIONS THEREIN.
  2.  PRIOR  TO THE COMMENCEMENT OF THE TRIAL, THE COURT, IN THE ABSENCE
OF THE JURY, MUST ARRAIGN THE DEFENDANT UPON SUCH INFORMATION AND ADVISE
HIM OR HER THAT HE OR SHE MAY ADMIT EACH SUCH ALLEGATION, DENY ANY  SUCH
ALLEGATION OR REMAIN MUTE WITH RESPECT TO ANY SUCH ALLEGATION. DEPENDING
UPON  THE  DEFENDANT'S RESPONSE, THE TRIAL OF THE INDICTMENT OR INFORMA-
TION MUST THEN PROCEED AS FOLLOWS:
  (A)(I) IF THE PREVIOUS CONVICTION IS FOR AN AGGRAVATED FAMILY  OFFENSE
AS  DEFINED IN SECTION 240.75 OF THE PENAL LAW, AND THE DEFENDANT ADMITS
THE PREVIOUS CONVICTION OR THAT IT TOOK PLACE  WITHIN  THE  TIME  PERIOD
SPECIFIED  IN  SUBDIVISION  ONE OF SECTION 240.75 OF THE PENAL LAW, SUCH
ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED  FOR  THE
PURPOSES  OF  THE  PRESENT PROSECUTION, INCLUDING SENTENCING PURSUANT TO
SECTION 70.00 OF THE PENAL LAW. THE COURT MUST SUBMIT THE  CASE  TO  THE
JURY  AS IF SUCH ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF
THE OFFENSE.
  (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR  REMAINS  MUTE
WITH  RESPECT  TO  IT,  THE PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT,
THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE.
  (III) IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK  PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE  PENAL  LAW, OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE
MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART  OF  THEIR
CASE,  THAT  THE  PREVIOUS  CONVICTION TOOK PLACE WITHIN THE TIME PERIOD
SPECIFIED.
  (B)(I) IF THE PREVIOUS  CONVICTION  IS  FOR  A  SPECIFIED  OFFENSE  AS
DEFINED  IN  SUBDIVISION  TWO  OF SECTION 240.75 OF THE PENAL LAW, OTHER
THAN AN AGGRAVATED FAMILY OFFENSE, AND THE DEFENDANT ADMITS SUCH  PREVI-
OUS  CONVICTION,  THAT IT TOOK PLACE WITHIN THE TIME PERIOD SPECIFIED IN
SUBDIVISION ONE OF SECTION 240.75 OF THE PENAL LAW, OR THAT THE  DEFEND-
ANT  AND  THE PERSON AGAINST WHOM THE OFFENSE WAS COMMITTED WERE MEMBERS
OF THE SAME FAMILY OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF SECTION
530.11 OF THIS CHAPTER, SUCH ADMITTED ALLEGATION OR ALLEGATIONS SHALL BE
DEEMED ESTABLISHED FOR THE PURPOSES OF THE PRESENT PROSECUTION,  INCLUD-
ING  SENTENCING  PURSUANT  TO  SECTION 70.00 OF THE PENAL LAW. THE COURT
MUST SUBMIT THE CASE TO THE JURY AS IF THE ADMITTED ALLEGATION OR  ALLE-
GATIONS WERE NOT ELEMENTS OF THE OFFENSE.
  (II)  IF  THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE
WITH RESPECT TO IT, THE PEOPLE MAY PROVE,  BEYOND  A  REASONABLE  DOUBT,
THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS A PART OF THEIR CASE.
  (III)  IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK PLACE
WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION ONE OF SECTION 240.75 OF
THE PENAL LAW, OR REMAINS MUTE WITH RESPECT TO THAT MATTER,  THE  PEOPLE
MAY  PROVE,  BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART OF THEIR
CASE, THAT THE PREVIOUS CONVICTION TOOK PLACE  WITHIN  THE  TIME  PERIOD
SPECIFIED.
  (IV) IF THE DEFENDANT DENIES THAT THE DEFENDANT AND THE PERSON AGAINST
WHOM  THE PREVIOUS OFFENSE WAS COMMITTED WERE MEMBERS OF THE SAME FAMILY
OR HOUSEHOLD AS DEFINED IN SUBDIVISION ONE OF  SECTION  530.11  OF  THIS
CHAPTER,  OR  REMAINS  MUTE  WITH RESPECT TO THAT MATTER, THE PEOPLE MAY
PROVE, BEYOND A REASONABLE DOUBT, THAT ELEMENT OF THE OFFENSE BEFORE THE
JURY AS A PART OF THEIR CASE.
  S 4. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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Senate Bill S5617

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Sponsored By

Martin J. Golden

Archive: Last Bill Status - In Senate Committee Codes Committee

Bill Amendments

co-Sponsors

Daniel L. Squadron

Andrew J. Lanza

2011-S5617 - Details

2011-S5617 - Summary

2011-S5617 - Sponsor Memo

2011-S5617 - Bill Text download pdf

co-Sponsors

Daniel L. Squadron

Andrew J. Lanza

2011-S5617A (ACTIVE) - Details

2011-S5617A (ACTIVE) - Summary

2011-S5617A (ACTIVE) - Sponsor Memo

2011-S5617A (ACTIVE) - Bill Text download pdf

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