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

                                  2309

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                            January 14, 2013
                               ___________

Introduced by M. of A. CRESPO, CASTRO, SCARBOROUGH, COOK, AUBRY, ARROYO,
  STEVENSON  --  Multi-Sponsored  by  -- M. of A. BARRON, CLARK, CROUCH,
  GABRYSZAK, V. LOPEZ, McDONOUGH, MILLER, MOYA,  PERRY,  RAMOS,  RIVERA,
  RODRIGUEZ, SALADINO, WEPRIN -- read once and referred to the Committee
  on Judiciary

AN  ACT to amend the family court act and the criminal procedure law, in
  relation to requiring the service of temporary  orders  of  protection
  and orders of protection upon the attorney representing the respondent
  or defendant

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

  Section 1. Section 154-d of the family court act, as added by  chapter
186 of the laws of 1997, is amended to read as follows:
  S  154-d.  Emergency  powers;  local  criminal  courts. 1. Issuance of
temporary orders of protection. Upon the request of  the  petitioner,  a
local criminal court may on an ex parte basis issue a temporary order of
protection  pending  a  hearing  in  family court, provided that a sworn
affidavit, certified in  accordance  with  subdivision  one  of  section
100.30 of the criminal procedure law is submitted: (i) alleging that the
family  court is not in session; (ii) alleging that a family offense, as
defined in subdivision one of section eight hundred twelve of  this  act
or  subdivision one of section 530.11 of the criminal procedure law, has
been committed; (iii) alleging that a family offense petition  has  been
filed  or  will be filed in family court on the next day the court is in
session; and (iv) showing good cause. Upon appearance in a local  crimi-
nal  court,  the petitioner shall be advised that he or she may continue
with the proceeding either in family court or,  upon  the  filing  of  a
local  criminal  court accusatory instrument, in criminal court or both.
Upon issuance of  a  temporary  order  of  protection  where  petitioner
requests that it be returnable in family court, the local criminal court
shall  transfer  the matter forthwith to the family court and shall make

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02566-01-3
              

A. 2309                             2

the matter returnable in family court on the next day the  family  court
is  in  session,  or  as soon thereafter as practicable, but in no event
more than four calendar days after issuance  of  the  order.  The  local
criminal  court, upon issuing a temporary order of protection returnable
in family court pursuant to this subdivision shall  immediately  forward
in a manner designed to ensure arrival before the return date set in the
order,  a  copy of the temporary order of protection and sworn affidavit
to the family court and shall provide a copy of such temporary order  of
protection  to  the petitioner; provided, however, that if the temporary
order of protection and affidavit are transmitted by facsimile or  other
electronic means, the original order and affidavit shall be forwarded to
the  family  court  immediately  thereafter.    Any  temporary  order of
protection issued pursuant to this subdivision shall be  issued  to  the
respondent  AND  THE  ATTORNEY  REPRESENTING  THE RESPONDENT, and copies
shall be filed as required in subdivisions  six  and  eight  of  section
530.12  of  the  criminal  procedure law for orders of protection issued
pursuant to such section.  NO ATTORNEY SHALL REFUSE TO ACCEPT  ANY  SUCH
ORDER ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY SHALL
IMMEDIATELY  PROVIDE  NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE OF THE
ORDER AND THE TERMS OF SUCH ORDER. Any  temporary  order  of  protection
issued  pursuant  to  this subdivision shall plainly state the date that
such order expires which, in the case of an order returnable  in  family
court,  shall  be  not  more than four calendar days after its issuance,
unless sooner vacated or modified by  the  family  court.  A  petitioner
requesting  a  temporary  order of protection returnable in family court
pursuant to this subdivision in a case in which a family court  petition
has  not  been  filed  shall  be  informed  that such temporary order of
protection shall expire as provided for herein,  unless  the  petitioner
files  a  petition  pursuant to subdivision one of section eight hundred
twenty-one of this act on or before the return date in family court  and
the  family  court  issues a temporary order of protection as authorized
under article eight of this act. Nothing in this subdivision shall limit
or restrict the petitioner's right to proceed directly and without court
referral in either a criminal or family court, or both, as provided  for
in  section  one  hundred  fifteen of this act and section 100.07 of the
criminal procedure law.
  2. Modifications of  orders  of  protection  or  temporary  orders  of
protection.  Upon  the request of the petitioner, a local criminal court
may on an ex parte basis modify a temporary order of protection or order
of protection which has been issued under article  four,  five,  six  or
eight  of  this  act  pending a hearing in family court, provided that a
sworn affidavit, verified in accordance with subdivision one of  section
100.30  of  the  criminal procedure law, is submitted: (i) alleging that
the family court is not in session and (ii) showing good cause,  includ-
ing  a  showing that the existing order is insufficient for the purposes
of protection of the petitioner, the petitioner's child or  children  or
other  members of the petitioner's family or household. The local crimi-
nal court shall make the matter regarding the modification of the  order
returnable  in  family  court  on  the  next  day the family court is in
session, or as soon thereafter as practicable, but in no event more than
four calendar days after issuance of the modified order. The local crim-
inal court shall immediately forward, in a  manner  designed  to  ensure
arrival  before the return date set in the order, a copy of the modified
order if any and sworn affidavit to the family court and shall provide a
copy of such modified order, if any, and affidavit  to  the  petitioner;
provided,  however,  that if the modified order and affidavit are trans-

A. 2309                             3

mitted to the family court by facsimile or other electronic  means,  the
original copy of such modified order and affidavit shall be forwarded to
the family court immediately thereafter. Any modified temporary order of
protection  or  order  of protection issued pursuant to this subdivision
shall be issued to the respondent  AND  THE  ATTORNEY  REPRESENTING  THE
RESPONDENT,  and  copies  shall be filed as provided in subdivisions six
and eight of section 530.12 of the criminal procedure law for orders  of
protection issued pursuant to such section.  NO ATTORNEY SHALL REFUSE TO
ACCEPT  ANY  SUCH  ORDER  ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND
SUCH ATTORNEY SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER  CLIENT  OF
THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER.
  S  2. Subdivision 1 of section 168 of the family court act, as amended
by chapter 416 of the laws of 1981, is amended to read as follows:
  1. In any case in which an order of protection or temporary  order  of
protection  has  been  made  by the family court, the clerk of the court
shall  issue  a  copy  of  such  order  to  the  petitioner  [and],  THE
respondent,  THE  ATTORNEY  REPRESENTING THE RESPONDENT and to any other
person affected by the order. NO ATTORNEY SHALL  REFUSE  TO  ACCEPT  ANY
SUCH  ORDER ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY
SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE OF
THE ORDER AND THE TERMS OF SUCH ORDER. The presentation of a copy of  an
order  of  protection or temporary order of protection or a warrant or a
certificate of warrant to any peace officer, acting pursuant to  his  OR
HER special duties, or police officer shall constitute authority for him
OR HER to arrest a person charged with violating the terms of such order
of  protection  or  temporary  order of protection and bring such person
before the court and, otherwise, so far as lies within his OR HER power,
to aid in securing the protection such order  was  intended  to  afford,
provided,  however, that any outstanding, unexpired certificate of order
of protection or temporary order of protection shall have the same force
and effect as a copy of such order or temporary order.
  S 3. Subdivisions 3-a, 3-b and 8 of section  530.12  of  the  criminal
procedure  law,  subdivisions 3-a and 3-b as added by chapter 186 of the
laws of 1997 and subdivision 8 as amended by section 81 of subpart B  of
part  C  of  chapter  62  of  the  laws  of 2011, are amended to read as
follows:
  3-a. Emergency powers when family court not in  session;  issuance  of
temporary  orders  of  protection. Upon the request of the petitioner, a
local criminal court may on an ex parte basis issue a temporary order of
protection pending a hearing in family  court,  provided  that  a  sworn
affidavit, verified in accordance with subdivision one of section 100.30
of this chapter, is submitted: (i) alleging that the family court is not
in  session; (ii) alleging that a family offense, as defined in subdivi-
sion one of section eight hundred twelve of the  family  court  act  and
subdivision  one  of section 530.11 of this article, has been committed;
(iii) alleging that a family offense petition has been filed or will  be
filed  in family court on the next day the court is in session; and (iv)
showing good cause. Upon appearance in a local criminal court, the peti-
tioner shall be advised that he or she may continue with the  proceeding
either  in  family  court  or  upon the filing of a local criminal court
accusatory instrument in criminal court or  both.  Upon  issuance  of  a
temporary  order  of  protection  where  petitioner  requests that it be
returnable in family court, the local criminal court shall transfer  the
matter  forthwith  to the family court and shall make the matter return-
able in family court on the next day the family court is in session,  or
as soon thereafter as practicable, but in no event more than four calen-

A. 2309                             4

dar  days  after  issuance  of the order. The local criminal court, upon
issuing a temporary order  of  protection  returnable  in  family  court
pursuant  to  this  subdivision,  shall immediately forward, in a manner
designed  to  insure  arrival before the return date set in the order, a
copy of the temporary order of protection and  sworn  affidavit  to  the
family  court  and  shall  provide  a  copy  of  such temporary order of
protection to the petitioner; provided, however, that where  a  copy  of
the  temporary  order of protection and affidavit are transmitted to the
family court by facsimile or other electronic means, the original  order
and  affidavit shall be forwarded to the family court immediately there-
after. Any temporary order of protection issued pursuant to this  subdi-
vision  shall  be issued to the respondent AND THE ATTORNEY REPRESENTING
THE RESPONDENT, and copies shall be filed as  required  in  subdivisions
six  and  eight of this section for orders of protection issued pursuant
to this section.   NO ATTORNEY SHALL REFUSE TO  ACCEPT  ANY  SUCH  ORDER
ADDRESSED TO HIS OR HER RESPONDENT CLIENT, AND SUCH ATTORNEY SHALL IMME-
DIATELY PROVIDE NOTICE TO HIS OR HER CLIENT OF THE ISSUANCE OF THE ORDER
AND  THE  TERMS  OF SUCH ORDER. Any temporary order of protection issued
pursuant to this subdivision shall plainly  state  the  date  that  such
order expires which, in the case of an order returnable in family court,
shall  be  not  more  than four calendar days after its issuance, unless
sooner vacated or modified by the family court. A petitioner  requesting
a  temporary  order of protection returnable in family court pursuant to
this subdivision in a case in which a family court petition has not been
filed shall be informed that such temporary order  of  protection  shall
expire  as  provided  for herein, unless the petitioner files a petition
pursuant to subdivision one of section eight hundred twenty-one  of  the
family  court  act  on or before the return date in family court and the
family court  issues  a  temporary  order  of  protection  or  order  of
protection  as  authorized  under article eight of the family court act.
Nothing in this subdivision shall limit  or  restrict  the  petitioner's
right  to proceed directly and without court referral in either a crimi-
nal or family court, or both, as provided for  in  section  one  hundred
fifteen of the family court act and section 100.07 of this chapter.
  3-b.  Emergency powers when family court not in session; modifications
of orders of protection or temporary  orders  of  protection.  Upon  the
request  of  the  petitioner,  a local criminal court may on an ex parte
basis modify a temporary order of  protection  or  order  of  protection
which  has  been  issued  under  article four, five, six or eight of the
family court act pending a hearing in  family  court,  provided  that  a
sworn  affidavit  verified in accordance with subdivision one of section
100.30 of this chapter is submitted: (i) alleging that the family  court
is  not in session and (ii) showing good cause, including a showing that
the existing order is insufficient for the purposes of protection of the
petitioner, the petitioner's child or children or other members  of  the
petitioner's  family  or  household. The local criminal court shall make
the matter regarding the modification of the order returnable in  family
court  on the next day the family court is in session, or as soon there-
after as practicable, but in no event more than four calendar days after
issuance of the modified order. The court shall  immediately  forward  a
copy  of  the  modified order, if any, and sworn affidavit to the family
court and shall provide a copy of such modified order, if any, and affi-
davit to the petitioner; provided, however, that where  copies  of  such
modified  order  and  affidavit  are  transmitted to the family court by
facsimile or other electronic means, the original copies of  such  modi-
fied  order  and  affidavit shall be forwarded to the family court imme-

A. 2309                             5

diately thereafter. Any modified temporary order of protection or  order
of protection issued pursuant to this subdivision shall be issued to the
respondent AND THE ATTORNEY REPRESENTING THE RESPONDENT and copies shall
be  filed  as required in subdivisions six and eight of this section for
orders of protection issued pursuant to this section.  NO ATTORNEY SHALL
REFUSE TO ACCEPT ANY SUCH ORDER  ADDRESSED  TO  HIS  OR  HER  RESPONDENT
CLIENT, AND SUCH ATTORNEY SHALL IMMEDIATELY PROVIDE NOTICE TO HIS OR HER
CLIENT OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER.
  8.  In  any  proceeding  in  which an order of protection or temporary
order of protection or a warrant has been issued under this section, the
clerk of the court shall issue to  the  complainant  and  defendant  and
defense  counsel and to any other person affected by the order a copy of
the order of protection or temporary order of protection and ensure that
a copy of the order of protection or temporary order  of  protection  be
transmitted  to  the local correctional facility where the individual is
or will be detained, the state or local correctional facility where  the
individual  is  or  will  be  imprisoned,  and the supervising probation
department or department of corrections and community supervision  where
the  individual  is  under  probation or parole supervision.  NO DEFENSE
COUNSEL SHALL REFUSE TO ACCEPT ANY SUCH ORDER ADDRESSED TO  HIS  OR  HER
CLIENT, AND SUCH COUNSEL SHALL IMMEDIATELY PROVIDE NOTICE TO THE DEFEND-
ANT  OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER. The pres-
entation of a copy of such order or  a  warrant  to  any  peace  officer
acting  pursuant  to  his  or her special duties or police officer shall
constitute authority for him or her to arrest a person who has  violated
the  terms  of  such  order  and bring such person before the court and,
otherwise, so far as lies within his or her power, to  aid  in  securing
the protection such order was intended to afford.
  S 4. Subdivision 6 of section 530.13 of the criminal procedure law, as
amended  by  section 82 of subpart B of part C of chapter 62 of the laws
of 2011, is amended to read as follows:
  6. In any proceeding in which an  order  of  protection  or  temporary
order of protection or a warrant has been issued under this section, the
clerk  of  the  court  shall  issue  to the victim and the defendant and
defense counsel and to any other person affected by the order, a copy of
the order of protection or temporary order of protection and ensure that
a copy of the order of protection or temporary order  of  protection  be
transmitted  to  the local correctional facility where the individual is
or will be detained, the state or local correctional facility where  the
individual  is  or  will  be  imprisoned,  and the supervising probation
department or department of corrections and community supervision  where
the  individual  is  under  probation or parole supervision.  NO DEFENSE
COUNSEL SHALL REFUSE TO ACCEPT ANY SUCH ORDER ADDRESSED TO  HIS  OR  HER
CLIENT, AND SUCH COUNSEL SHALL IMMEDIATELY PROVIDE NOTICE TO THE DEFEND-
ANT  OF THE ISSUANCE OF THE ORDER AND THE TERMS OF SUCH ORDER. The pres-
entation of a copy of such order or a warrant to any police  officer  or
peace officer acting pursuant to his or her special duties shall consti-
tute  authority  for  him or her to arrest a person who has violated the
terms of such order and bring such person before the court  and,  other-
wise,  so  far  as  lies within his or her power, to aid in securing the
protection such order was intended to afford.
  S 5. This act shall take effect  on the first of October next succeed-
ing the date on which it shall have become a law.