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

                                   340

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Codes

AN ACT to amend the criminal procedure law, the family  court  act,  the
  civil  practice  law  and rules, the penal law and the social services
  law, in relation to restricting the ability of perpetrators of violent
  crimes to access personal records of their victims; and to  amend  the
  civil  practice law and rules, in relation to service of a subpoena by
  a pro se litigant

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

  Section  1. Section 240.50 of the criminal procedure law is amended by
adding a new subdivision 5 to read as follows:
  5. NOTWITHSTANDING ANY OTHER PROVISION OF THIS ARTICLE, IN THE CASE OF
A CRIMINAL ACTION INVOLVING A FELONY AS DEFINED IN SECTION 10.00 OF  THE
PENAL LAW:
  (A)  ENTAILING  SERIOUS PHYSICAL INJURY AS DEFINED IN SECTION 10.00 OF
THE PENAL LAW; OR
  (B) INVOLVING AN OFFENSE DESCRIBED IN ARTICLE ONE  HUNDRED  THIRTY  OF
THE PENAL LAW,
DISCOVERY  OF  MATERIAL  CONTAINING  PERSONAL  INFORMATION REGARDING THE
VICTIM AGAINST WHOM THE  FELONY  WAS  ALLEGEDLY  COMMITTED  IS  ALLOWED,
INCLUDING, BUT NOT LIMITED TO DISCOVERY OF MEDICAL, EDUCATIONAL, EMPLOY-
MENT  AND FINANCIAL INFORMATION AND NON-PUBLIC INFORMATION PERTAINING TO
THE VICTIM'S LOCATION, SHALL BE ALLOWED  ONLY  PURSUANT  TO  A  SUBPOENA
ISSUED  BY  THE  COURT  IN WHICH THE ACTION IS PENDING, AND A PROTECTIVE
ORDER DIRECTING THAT ANY SUCH MATERIAL SHALL BE USED FOR  THE  EXCLUSIVE
PURPOSE  OF  PREPARING  FOR  THE  DEFENSE OR PROSECUTION OF THE CRIMINAL
ACTION. ALL SUCH SUBPOENAS SERVED ON BEHALF  OF  THE  DEFENSE  SHALL  BE
SERVED BY THE DEFENDANT'S AGENT.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01463-01-3
              

S. 340                              2

  S  2. Section 331.5 of the family court act is amended by adding a new
subdivision 5 to read as follows:
  5.  NOTWITHSTANDING ANY OTHER PROVISION OF THIS ACT, IN THE CASE OF AN
ACTION INVOLVING A FELONY AS DEFINED IN SECTION 10.00 OF THE PENAL LAW:
  (A) ENTAILING SERIOUS PHYSICAL INJURY AS DEFINED IN SECTION  10.00  OF
THE PENAL LAW; OR
  (B)  INVOLVING  AN  OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED THIRTY OF
THE PENAL LAW,
DISCOVERY OF MATERIAL  CONTAINING  PERSONAL  INFORMATION  REGARDING  THE
VICTIM  AGAINST  WHOM  THE  FELONY  WAS  ALLEGEDLY COMMITTED IS ALLOWED,
INCLUDING, BUT NOT LIMITED TO DISCOVERY OF MEDICAL, EDUCATIONAL, EMPLOY-
MENT AND FINANCIAL INFORMATION AND NON-PUBLIC INFORMATION PERTAINING  TO
THE  VICTIM'S  LOCATION,  SHALL  BE  ALLOWED ONLY PURSUANT TO A SUBPOENA
ISSUED BY THE COURT IN WHICH THE ACTION IS  PENDING,  AND  A  PROTECTIVE
ORDER  DIRECTING  THAT ANY SUCH MATERIAL SHALL BE USED FOR THE EXCLUSIVE
PURPOSE OF PREPARING FOR THE DEFENSE OR PRESENTMENT OF THE  ACTION.  ALL
SUCH  SUBPOENAS SERVED ON BEHALF OF THE PERSON ACCUSED OF COMMITTING THE
FELONY SHALL BE SERVED BY SUCH PERSON'S AGENT.
  S 3. Section 3103 of the civil practice law and rules  is  amended  by
adding a new subdivision (d) to read as follows:
  (D)  NOTWITHSTANDING  ANY OTHER PROVISION OF THIS ARTICLE, IN THE CASE
OF ANY ACTION INVOLVING A PERSON WHO IS CONVICTED IN A CRIMINAL COURT OF
A FELONY AS DEFINED IN SECTION 10.00 OF THE PENAL LAW:
  (I) ENTAILING SERIOUS PHYSICAL INJURY AS DEFINED IN SECTION  10.00  OF
THE PENAL LAW; OR
  (II)  INVOLVING  AN OFFENSE DESCRIBED IN ARTICLE ONE HUNDRED THIRTY OF
THE PENAL LAW,
DISCOVERY OF MATERIAL  CONTAINING  PERSONAL  INFORMATION  REGARDING  THE
VICTIM  AGAINST WHOM THE FELONY WAS COMMITTED IS ALLOWED, INCLUDING, BUT
NOT LIMITED TO DISCOVERY OF MEDICAL, EDUCATIONAL, EMPLOYMENT AND  FINAN-
CIAL  INFORMATION  AND NON-PUBLIC INFORMATION PERTAINING TO THE VICTIM'S
LOCATION, SHALL BE ALLOWED ONLY PURSUANT TO A  SUBPOENA  ISSUED  BY  THE
COURT  IN  WHICH THE ACTION IS PENDING, AND A PROTECTIVE ORDER DIRECTING
THAT ANY SUCH MATERIAL SHALL  BE  USED  FOR  THE  EXCLUSIVE  PURPOSE  OF
PREPARING FOR THE DEFENSE OR PROSECUTION OF THE ACTION. ALL SUCH SUBPOE-
NAS  SERVED  ON  BEHALF  OF  THE PERSON ACCUSED OF COMMITTING THE FELONY
SHALL BE SERVED BY SUCH PERSON'S AGENT.
  S 4. The penal law is amended by adding a new section 60.38 to read as
follows:
S 60.38 MANDATORY ORDER OF PROTECTION FOR PERSONAL INFORMATION  PERTAIN-
          ING TO VICTIMS OF VIOLENT CRIMES.
  1.  WHENEVER  PROCEEDINGS  IN AN ADMINISTRATIVE TRIBUNAL OR A COURT OF
THIS STATE RESULT IN A CONVICTION FOR A FELONY:
  (A) ENTAILING SERIOUS PHYSICAL INJURY; OR
  (B) INVOLVING AN OFFENSE DESCRIBED IN ARTICLE ONE  HUNDRED  THIRTY  OF
THIS CHAPTER,
THERE SHALL BE ISSUED AT SENTENCING A MANDATORY PROTECTIVE ORDER PROHIB-
ITING  THE  CONVICTED  PERSON  FROM  OBTAINING  ANY  NON-PUBLIC  RECORDS
CONTAINING PERSONAL INFORMATION REGARDING THE VICTIM  AGAINST  WHOM  THE
FELONY  WAS  COMMITTED,  INCLUDING,  BUT  NOT LIMITED TO MEDICAL, EDUCA-
TIONAL, EMPLOYMENT AND FINANCIAL INFORMATION AND INFORMATION  PERTAINING
TO  THE  VICTIM'S  LOCATION. THIS ORDER SHALL BE A PERMANENT ORDER WHICH
SHALL NOT EXPIRE, AND THE VICTIM SHALL NOT BE REQUIRED  TO  PERIODICALLY
RENEW OR REAPPLY FOR THE ORDER. SUBJECT TO THE PROVISIONS OF SUBDIVISION
TWO  OF  THIS  SECTION,  THE  ORDER SHALL NOT BE SUBJECT TO VITIATION OR
MODIFICATION UPON APPLICATION BY THE CONVICTED PERSON, PROVIDED THAT  IF

S. 340                              3

THE CONVICTION IS REVERSED ON APPEAL, THE ORDER MAY BE MODIFIED OR VITI-
ATED  BY  THE SUPERIOR COURT UPON APPLICATION BY THE DEFENDANT AND AFTER
APPROPRIATE NOTICE TO AN OPPORTUNITY TO BE HEARD BY THE VICTIM  AND  THE
PROSECUTOR  IN  THE  CASE.  THE PROTECTIVE ORDER ISSUED PURSUANT TO THIS
SECTION SHALL REPLACE ANY PROTECTIVE ORDER ISSUED DURING THE  COURSE  OF
THE ACTION RESULTING IN THE CONVICTION.
  2.  THE  PROVISIONS  OF SUBDIVISION ONE OF THIS SECTION SHALL APPLY IN
ALL CASES IN WHICH THE VICTIM IS AN ADULT AND IN ALL CASES IN WHICH  THE
VICTIM  IS  A  MINOR AND THE CONVICTED PERSON IS NOT AN IMMEDIATE FAMILY
MEMBER OF THE VICTIM. IN CASES IN WHICH THE VICTIM IS A  MINOR  AND  THE
CONVICTED  PERSON  IS  AN  IMMEDIATE  FAMILY  MEMBER  OF THE VICTIM, THE
PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL APPLY, PROVIDED THAT
THE CONVICTED PERSON MAY APPLY TO  FAMILY  COURT  FOR  RELIEF  FROM  THE
PROTECTIVE  ORDER.  THE  FAMILY COURT MAY GRANT OR DENY SUCH APPLICATION
AND/OR MAY ISSUE AN ORDER OF PROTECTION  AS  DESCRIBED  IN  SECTION  ONE
THOUSAND FIFTY-SIX OF THE FAMILY COURT ACT.
  3.  THE PERSON CONVICTED OF THE FELONY SHALL PAY ALL COSTS INCURRED IN
CONNECTION WITH THE ISSUANCE AND ENFORCEMENT OF THE PROTECTIVE ORDER. IN
THE EVENT THAT SUCH PERSON UNSUCCESSFULLY CHALLENGES THE VALIDITY OF THE
PROTECTIVE ORDER OR UNSUCCESSFULLY SEEKS TO HAVE IT  VITIATED  OR  MODI-
FIED, HE OR SHE SHALL BE LIABLE FOR ALL COSTS INCURRED DURING THE COURSE
OF  SUCH  CHALLENGE,  INCLUDING COSTS INCURRED BY THE VICTIM IN OPPOSING
THE CHALLENGE.
  4. THE COSTS PROVIDED FOR IN SUBDIVISION THREE OF THIS  SECTION  SHALL
BE  PAID  TO  THE  CLERK  OF  THE  COURT OR ADMINISTRATIVE TRIBUNAL THAT
RENDERED THE CONVICTION. WITHIN THE FIRST TEN DAYS OF THE MONTH  FOLLOW-
ING  COLLECTION  OF  THE COSTS, THE COLLECTING AUTHORITY SHALL DETERMINE
THE AMOUNT OF THE MONEY COLLECTED AND, IF IT IS AN ADMINISTRATIVE TRIBU-
NAL, OR A TOWN OR VILLAGE JUSTICE COURT, IT SHALL THEN PAY SUCH MONEY TO
THE STATE COMPTROLLER WHO SHALL DEPOSIT SUCH MONEY IN THE STATE TREASURY
PURSUANT TO SECTION ONE HUNDRED TWENTY-ONE OF THE STATE FINANCE  LAW  TO
THE  CREDIT  OF  THE CRIMINAL JUSTICE IMPROVEMENT ACCOUNT ESTABLISHED BY
SECTION NINETY-SEVEN-BB OF THE STATE FINANCE  LAW.  IF  SUCH  COLLECTING
AUTHORITY  IS  ANY  OTHER  COURT  OF THE UNIFIED COURT SYSTEM, IT SHALL,
WITHIN SUCH PERIOD, PAY SUCH MONEY TO THE STATE COMMISSIONER OF TAXATION
AND FINANCE TO THE CREDIT OF THE CRIMINAL  JUSTICE  IMPROVEMENT  ACCOUNT
ESTABLISHED BY SECTION NINETY-SEVEN-BB OF THE STATE FINANCE LAW.
  5.  ANY PERSON WHO HAS PAID A PROTECTIVE ORDER FEE UNDER THE AUTHORITY
OF THIS SECTION BASED UPON A CONVICTION THAT  IS  SUBSEQUENTLY  REVERSED
SHALL BE ENTITLED TO A REFUND OF FEE UPON APPLICATION TO THE STATE COMP-
TROLLER.  THE STATE COMPTROLLER SHALL REQUIRE SUCH PROOF AS IS NECESSARY
IN ORDER TO DETERMINE WHETHER A REFUND IS REQUIRED BY LAW.
  6. WHEN A PERSON WHO IS CONVICTED OF A VIOLENT CRIME AND SENTENCED  TO
A  TERM  OF  IMPRISONMENT  HAS  FAILED TO PAY THE PROTECTIVE ORDER COSTS
REQUIRED BY THIS SECTION, THE CLERK  OF  THE  COURT  THAT  RENDERED  THE
CONVICTION  SHALL NOTIFY THE SUPERINTENDENT OR THE MUNICIPAL OFFICIAL OF
THE FACILITY WHERE THE PERSON IS CONFINED.  THE  SUPERINTENDENT  OR  THE
MUNICIPAL  OFFICIAL  SHALL  CAUSE  ANY AMOUNT OWING TO BE COLLECTED FROM
SUCH PERSON DURING HIS OR HER TERM OF IMPRISONMENT FROM  MONEYS  TO  THE
CREDIT  OF  AN INMATES' FUND OR SUCH MONEYS AS MAY BE EARNED BY A PERSON
IN A WORK RELEASE PROGRAM PURSUANT TO SECTION EIGHT HUNDRED SIXTY OF THE
CORRECTION LAW. SUCH MONEYS SHALL BE PAID OVER TO THE STATE  COMPTROLLER
TO THE CREDIT OF THE CRIMINAL JUSTICE IMPROVEMENT ACCOUNT ESTABLISHED BY
SECTION  NINETY-SEVEN-BB  OF THE STATE FINANCE LAW, EXCEPT THAT ANY SUCH
MONEYS COLLECTED PERTAINING TO COSTS LEVIED IN RELATION  TO  CONVICTIONS
OBTAINED  IN A TOWN OR VILLAGE JUSTICE COURT SHALL BE PAID WITHIN THIRTY

S. 340                              4

DAYS AFTER THE RECEIPT THEREOF BY THE SUPERINTENDENT OR MUNICIPAL  OFFI-
CIAL OF THE FACILITY TO THE JUSTICE OF THE COURT IN WHICH THE CONVICTION
WAS  OBTAINED.  FOR THE PURPOSES OF COLLECTING SUCH FEE, THE STATE SHALL
BE  LEGALLY  ENTITLED  TO THE MONEY TO THE CREDIT OF AN INMATES' FUND OR
MONEY WHICH IS EARNED BY AN  INMATE  IN  A  WORK  RELEASE  PROGRAM.  FOR
PURPOSES OF THIS SUBDIVISION, THE TERM "INMATES' FUND" SHALL MEAN MONEYS
IN  THE POSSESSION OF AN INMATE AT THE TIME OF HIS OR HER ADMISSION INTO
SUCH FACILITY, FUNDS EARNED BY HIM OR HER AS PROVIDED FOR IN SECTION ONE
HUNDRED EIGHTY-SEVEN OF THE CORRECTION LAW AND ANY OTHER FUNDS  RECEIVED
BY  HIM  OR  HER  OR ON HIS OR HER BEHALF AND DEPOSITED WITH SUCH SUPER-
INTENDENT OR MUNICIPAL OFFICIAL.
  7. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION  60.00
OF THIS ARTICLE, THE PROVISIONS OF SUBDIVISION ONE OF THIS SECTION SHALL
NOT APPLY TO A VIOLATION UNDER ANY LAW OTHER THAN THIS CHAPTER.
  8. NOTWITHSTANDING THE PROVISIONS OF SUBDIVISION ONE OF SECTION 130.10
OF THE CRIMINAL PROCEDURE LAW, AT THE TIME THAT THE PROTECTION ORDER FEE
IS  IMPOSED,  A  TOWN  OR VILLAGE COURT MAY, AND ALL OTHER COURTS SHALL,
ISSUE AND CAUSE TO BE SERVED UPON THE PERSON REQUIRED TO PAY THE PROTEC-
TIVE ORDER FEE, A SUMMONS DIRECTING THAT SUCH PERSON APPEAR  BEFORE  THE
COURT  REGARDING  THE  PAYMENT  OF THE FEE, IF AFTER SIXTY DAYS FROM THE
DATE IT WAS IMPOSED IT REMAINS UNPAID. THE DESIGNATED DATE OF APPEARANCE
ON THE SUMMONS SHALL BE SET FOR THE FIRST DAY COURT IS IN SESSION  FALL-
ING  AFTER  THE SIXTIETH DAY FROM THE IMPOSITION OF THE FEE. THE SUMMONS
SHALL CONTAIN THE INFORMATION REQUIRED BY  SUBDIVISION  TWO  OF  SECTION
130.10 OF THE CRIMINAL PROCEDURE LAW EXCEPT THAT IN SUBSTITUTION FOR THE
REQUIREMENT OF PARAGRAPH (C) OF SUCH SUBDIVISION THE SUMMONS SHALL STATE
THAT THE PERSON SERVED MUST APPEAR AT A DATE, TIME AND SPECIFIC LOCATION
SPECIFIED  IN  THE SUMMONS IF AFTER SIXTY DAYS FROM THE DATE OF ISSUANCE
THE FEE REMAINS UNPAID. THE COURT SHALL NOT ISSUE A SUMMONS  UNDER  THIS
SUBDIVISION  TO A PERSON WHO IS BEING SENTENCED TO A TERM OF CONFINEMENT
IN EXCESS OF SIXTY DAYS IN JAIL OR IN  THE  DEPARTMENT  OF  CORRECTIONAL
SERVICES. THE FEES FOR THOSE PERSONS SHALL BE GOVERNED BY THE PROVISIONS
OF SECTION 60.30 OF THIS ARTICLE.
  9.  THE  PROVISIONS  OF  THIS SECTION SHALL APPLY TO SENTENCES IMPOSED
UPON A YOUTHFUL OFFENDER FINDING.
  10. THE PROVISIONS OF THIS SECTION SHALL APPLY TO ALL  CONVICTIONS  AS
DESCRIBED  IN SUBDIVISION ONE OF THIS SECTION, REGARDLESS OF WHETHER THE
SENTENCE WAS ONE INVOLVING IMPRISONMENT, PROBATION  AND/OR  A  SUSPENDED
SENTENCE.
  S  5.  Paragraph  (d)  of subdivision 2 of section 378-a of the social
services law, as added by chapter 7 of the laws of 1999, is  amended  to
read as follows:
  (d)  Notwithstanding  any  other provision of law to the contrary, the
office of children and family  services,  upon  receipt  of  a  criminal
history  record  from  the  division  of  criminal justice services, may
request, and is entitled  to  receive,  information  pertaining  to  any
offense  contained  in  such  criminal  history record from any state or
local law enforcement agency or court for the  purposes  of  determining
whether any ground relating to such criminal conviction or pending crim-
inal  charge exists for denying an application; PROVIDED THAT NOTHING IN
THIS CHAPTER SHALL BE CONSTRUED TO ALLOW A PERSON CONVICTED OF A  FELONY
TO  ACCESS  RECORDS  OF  HIS  OR HER VICTIM IN VIOLATION OF A PROTECTIVE
ORDER ISSUED PURSUANT TO SECTION 60.38 OF THE PENAL LAW.
  S 6. Subdivision 5 of section 390-b of the  social  services  law,  as
added by chapter 416 of the laws of 2000, is amended to read as follows:

S. 340                              5

  5.  Notwithstanding  any  other  provision of law to the contrary, the
office of children and family  services,  upon  receipt  of  a  criminal
history  record  from  the  division  of  criminal justice services, may
request, and is entitled to receive, information pertaining to any crime
contained  in  such  criminal history record from any state or local law
enforcement agency, district attorney, parole officer, probation officer
or court for the purposes of determining whether any ground relating  to
such criminal conviction or pending criminal charge exists for denying a
license,  registration, application or employment; PROVIDED THAT NOTHING
IN THIS CHAPTER SHALL BE CONSTRUED TO ALLOW  A  PERSON  CONVICTED  OF  A
FELONY  TO ACCESS RECORDS OF HIS OR HER VICTIM IN VIOLATION OF A PROTEC-
TIVE ORDER ISSUED PURSUANT TO SECTION 60.38 OF THE PENAL LAW.
  S 7. The civil practice law and rules  is  amended  by  adding  a  new
section 2303-b to read as follows:
  S  2303-B.  SERVICE OF A SUBPOENA BY A PRO SE LITIGANT. A PRO SE LITI-
GANT WHO IS CONVICTED IN A CRIMINAL COURT OF A  FELONY,  AS  DEFINED  IN
SECTION  10.00  OF THE PENAL LAW, MAY SERVE A SUBPOENA IN PERSON FOR THE
RECORDS OF THE VICTIM AGAINST WHOM THE PENALTY WAS COMMITTED ONLY  AFTER
RECEIVING  A COURT ORDER IF SUCH FELONY: ENTAILS SERIOUS PHYSICAL INJURY
AS DEFINED IN SECTION 10.00 OF THE PENAL LAW;  OR  INVOLVES  AN  OFFENSE
DESCRIBED IN ARTICLE ONE HUNDRED THIRTY OF THE PENAL LAW.
  S  8.  This  act shall take effect on the ninetieth day after it shall
have become a law.