S T A T E   O F   N E W   Y O R K
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                                  6188

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              March 9, 2011
                               ___________

Introduced by M. of A. MURRAY -- read once and referred to the Committee
  on Judiciary

AN ACT to amend the domestic relations law, the family court act and the
  criminal  procedure  law,  in  relation  to requiring mandatory prison
  sentences for repeat violators of orders of protection

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

  Section  1.  The  closing paragraph of subdivision 3 of section 240 of
the domestic relations law, as added by chapter 606 of the laws of 1999,
is amended to read as follows:
  Upon issuance  of  an  order  of  protection  or  temporary  order  of
protection  or  upon  a  violation  of such order, the court may make an
order in accordance with section eight hundred forty-two-a of the family
court act directing the surrender of firearms, revoking or suspending  a
party's firearms license, and/or directing that such party be ineligible
to  receive  a firearms license. Upon issuance of an order of protection
pursuant to this section or upon a finding of a violation  thereof,  the
court  also may direct payment of restitution in an amount not to exceed
ten thousand dollars in accordance with subdivision (e) of section eight
hundred forty-one of such act; provided, however, that in no case  shall
an  order  of  restitution be issued where the court determines that the
party against whom the order would be issued has already compensated the
injured party or where such compensation  is  incorporated  in  a  final
judgment  or  settlement  of the action.  IF THE PERSON SO VIOLATING THE
ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER ON MORE THAN ONE  OCCA-
SION,  AND  THIS  VIOLATION  CONSISTED OF COMMITTING A FAMILY OFFENSE AS
DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF  NO
LESS  THAN  THIRTY DAYS, WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS
OR PARTS OF DAYS AS THE COURT MAY DIRECT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08282-01-1
              

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  S 2. Subdivision 9 of section 252 of the domestic  relations  law,  as
added  by  chapter  606    of  the  laws  of 1999, is amended to read as
follows:
  9.  Upon  issuance  of  an  order  of protection or temporary order of
protection or upon a violation of such order, the court may [take]  MAKE
an  order  in  accordance  with section eight hundred forty-two-a of the
family court act  directing  the  surrender  of  firearms,  revoking  or
suspending  a party's firearms license, and/or directing that such party
be ineligible to receive a firearms license. Upon issuance of  an  order
of  protection pursuant to this section or upon a finding of a violation
thereof, the court also may direct payment of restitution in  an  amount
not to exceed ten thousand dollars in accordance with subdivision (e) of
section  eight hundred forty-one of such act; provided, however, that in
no case shall an order of restitution be issued where the  court  deter-
mines  that the party against whom the order would be issued has already
compensated the injured party or where such compensation is incorporated
in a final [judgement] JUDGMENT or settlement of the  action.    IF  THE
PERSON SO VIOLATING THE ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER
ON  MORE THAN ONE OCCASION, AND THIS VIOLATION CONSISTED OF COMMITTING A
FAMILY OFFENSE AS DEFINED IN SUBDIVISION ONE OF  SECTION  EIGHT  HUNDRED
TWELVE  OF  THE FAMILY COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF
THE CRIMINAL PROCEDURE LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM
OF IMPRISONMENT OF NO LESS THAN THIRTY DAYS, WHICH MAY  BE  SERVED  UPON
CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE COURT MAY DIRECT.
  S  3. Section 846-a of the family court act, as amended by chapter 597
of the laws of 1998, is amended to read as follows:
  S 846-a. Powers on failure to obey order. If a respondent  is  brought
before  the court for failure to obey any lawful order issued under this
article or an order of protection issued by a court of competent  juris-
diction  of  another  state,  territorial  or  tribal  jurisdiction in a
proceeding and if, after hearing, the court is  satisfied  by  competent
proof  that  the respondent has willfully failed to obey any such order,
the court may modify an existing order to add reasonable  conditions  of
behavior  to  the  existing  order  of  protection,  make a new order of
protection in accordance with section eight hundred  forty-two  OF  THIS
PART, may order the forfeiture of bail in a manner consistent with arti-
cle  five  hundred  forty of the criminal procedure law if bail has been
ordered pursuant to this act,  may  order  the  respondent  to  pay  the
petitioner's  reasonable  and  necessary counsel fees in connection with
the violation petition where the court finds that the violation  of  its
order  was willful, and may commit the respondent to jail for a term not
to exceed six months.  IF THE RESPONDENT HAS  BEEN  FOUND  BY  COMPETENT
PROOF  TO HAVE WILLFULLY FAILED TO OBEY SUCH ORDER OF PROTECTION ON MORE
THAN ONE OCCASION, AND THIS WILLFUL FAILURE CONSISTED  OF  COMMITTING  A
FAMILY  OFFENSE  AS  DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED
TWELVE OF THIS ARTICLE OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIM-
INAL PROCEDURE LAW, THE COURT SHALL COMMIT SUCH  PERSON  TO  A  TERM  OF
IMPRISONMENT OF NOT LESS THAN THIRTY DAYS. Such commitment may be served
upon  certain  specified  days or parts of days as the court may direct,
and the court may, at any time within the term of such sentence,  revoke
such  suspension  and  commit  the  respondent  for the remainder of the
original sentence, or suspend the remainder of  such  sentence.  If  the
court  determines  that  the willful failure to obey such order involves
violent behavior constituting the crimes of menacing, reckless endanger-
ment, assault or attempted assault and if such a respondent is  licensed
to  carry,  possess,  repair and dispose of firearms pursuant to section

A. 6188                             3

400.00 of the penal law, the court  may  also  immediately  revoke  such
license  and may arrange for the immediate surrender and disposal of any
firearm such respondent owns or possesses.   If the willful  failure  to
obey  such  order  involves the infliction of serious physical injury as
defined in subdivision ten of section 10.00 of the penal law or the  use
or  threatened  use of a deadly weapon or dangerous instrument, as those
terms are defined in subdivisions twelve and thirteen of  section  10.00
of  the  penal law, such revocation and immediate surrender and disposal
of any firearm owned or possessed  by  respondent  shall  be  mandatory,
pursuant to subdivision eleven of section 400.00 of the penal law.
  S  4.  Subdivision 11 of section 530.12 of the criminal procedure law,
as amended by chapter 498 of the laws of 1993, the opening paragraph  as
amended  by chapter 597 of the laws of 1998, paragraph (a) as amended by
chapter 222 of the laws of 1994 and paragraph (d) as amended by  chapter
644 of the laws of 1996, is amended to read as follows:
  11.    If  a defendant is brought before the court for failure to obey
any lawful order issued under this section, or an  order  of  protection
issued  by  a court of competent jurisdiction in another state, territo-
rial or tribal jurisdiction, and if, after hearing, the court is  satis-
fied  by competent proof that the defendant has willfully failed to obey
any such order, (A) the court may:
  [(a)] (I) revoke an order of recognizance or revoke an order  of  bail
or order forfeiture of such bail and commit the defendant to custody; or
  [(b)]  (II)  restore  the  case to the calendar when there has been an
adjournment in contemplation of dismissal and commit  the  defendant  to
custody; or
  [(c)]  (III) revoke a conditional discharge in accordance with section
410.70 of this chapter and impose  probation  supervision  or  impose  a
sentence  of  imprisonment in accordance with the penal law based on the
original conviction; or
  [(d)] (IV) revoke probation in accordance with section 410.70 of  this
chapter  and  impose  a  sentence of imprisonment in accordance with the
penal law based on the original conviction.  In  addition,  if  the  act
which  constitutes the violation of the order of protection or temporary
order of protection is a crime or  a  violation  the  defendant  may  be
charged with and tried for that crime or violation; AND
  (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
SUCH  ORDER  OF  PROTECTION  ON  MORE THAN ONE OCCASION AND THIS WILLFUL
FAILURE CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN  SUBDIVI-
SION  ONE  OF  THIS  SECTION OR SUBDIVISION ONE OF SECTION EIGHT HUNDRED
TWELVE OF THE FAMILY COURT ACT, THE COURT SHALL COMMIT SUCH PERSON TO  A
TERM  OF  IMPRISONMENT OF NOT LESS THAN THIRTY DAYS, WHICH MAY BE SERVED
UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE COURT MAY DIRECT.
  S 5. Subdivision 8 of section 530.13 of the criminal procedure law, as
added by chapter 388 of the laws of 1984, is amended to read as follows:
  8. If a defendant is brought before the court for failure to obey  any
lawful  order issued under this section and if, after hearing, the court
is satisfied by competent proof that the defendant has willfully  failed
to obey any such order, (A) the court may:
  [(a)]  (I)  revoke  an  order  of  recognizance or bail and commit the
defendant to custody; or
  [(b)] (II) restore the case to the calendar when  there  has  been  an
adjournment  in  contemplation  of dismissal and commit the defendant to
custody or impose or increase bail pending a trial of the original crime
or violation; or

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  [(c)] (III) revoke a conditional discharge in accordance with  section
410.70  of  this  chapter  and  impose probation supervision or impose a
sentence of imprisonment in accordance with the penal law based  on  the
original conviction; or
  [(d)]  (IV) revoke probation in accordance with section 410.70 of this
chapter and impose a sentence of imprisonment  in  accordance  with  the
penal  law  based  on  the  original conviction. In addition, if the act
which constitutes the violation of the order of protection or  temporary
order  of  protection  is  a  crime  or a violation the defendant may be
charged with and tried for that crime or violation; AND
  (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
SUCH ORDER OF PROTECTION ON MORE THAN  ONE  OCCASION  AND  THIS  WILLFUL
FAILURE  CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN SUBDIVI-
SION ONE OF SECTION 530.12 OF THIS ARTICLE OR SUBDIVISION ONE OF SECTION
EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT,  THE  COURT  SHALL  COMMIT
SUCH  PERSON  TO  A  TERM  OF IMPRISONMENT OF NOT LESS THAN THIRTY DAYS,
WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS  THE
COURT MAY DIRECT.
  S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.