S. 3478 2
PHYSICAL INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD
IN COMMON OR DOMESTIC PARTNER.
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. WITH INTENT TO CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER
SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, HE OR
SHE CAUSES SUCH INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A
CHILD IN COMMON OR DOMESTIC PARTNER, OR TO A THIRD PERSON; OR
2. HE OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE,
FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER;
OR
3. 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 BY MEANS OF A DEADLY WEAPON OR DANGEROUS INSTRUMENT; OR
4. HE OR SHE COMMITS A CRIME AGAINST HIS OR HER SPOUSE, FORMER SPOUSE,
FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, AND HE OR SHE
HAS PREVIOUSLY BEEN CONVICTED OF A CRIME AGAINST HIS OR HER SPOUSE,
FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER
WITHIN THE PRECEDING FIVE YEARS. THE PERSON AGAINST WHOM A CRIME HAS
BEEN COMMITTED FOR PURPOSES OF CULPABILITY UNDER THIS SUBDIVISION MAY BE
A DIFFERENT PERSON THAN WHOM THE PREDICATE CRIME WAS COMMITTED AGAINST
DURING THE PRECEDING FIVE YEARS. FOR PURPOSES OF THIS SUBDIVISION, ANY
PERIOD OF TIME DURING WHICH THE DEFENDANT WAS INCARCERATED FOR ANY
REASON BETWEEN THE COMMISSION OF ANY PREVIOUS CRIMES AND THE COMMISSION
OF THE CRIME IN VIOLATION OF THIS SUBDIVISION SHALL BE EXCLUDED AND SUCH
FIVE YEAR PERIOD SHALL BE EXTENDED BY THE PERIOD OR PERIOD OF TIME
DURING WHICH THE DEFENDANT WAS INCARCERATED.
DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY.
S 2. The criminal procedure law is amended by adding a new section
200.64 to read as follows:
S 200.64 INDICTMENT; SPECIAL INFORMATION FOR DOMESTIC ABUSE OFFENDER.
1. WHENEVER A PERSON IS CHARGED WITH THE COMMISSION OR ATTEMPTED
COMMISSION OF DOMESTIC ABUSE IN THE FIRST DEGREE AS DEFINED IN SUBDIVI-
SION FOUR OF SECTION 120.85 OF THE PENAL LAW, AN INDICTMENT OR INFORMA-
TION FOR SUCH OFFENSE SHALL BE ACCOMPANIED BY A SPECIAL INFORMATION,
FILED BY THE DISTRICT ATTORNEY WITH THE COURT, ALLEGING THAT THE DEFEND-
ANT WAS PREVIOUSLY CONVICTED OF A CRIME, THAT AT THE TIME OF THE PREVI-
OUS CRIME OR AT AN EARLIER TIME THE DEFENDANT WAS THE SPOUSE, FORMER
SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, AS
DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH CRIME,
AND THAT SUCH PREVIOUS CONVICTION TOOK PLACE WITHIN THE TIME PERIOD
SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW.
EXCEPT AS PROVIDED IN THIS SECTION, THE PEOPLE MAY NOT REFER TO SUCH
SPECIAL INFORMATION DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING THE
ALLEGATIONS 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 OF DOMESTIC ABUSE IN THE SECOND
DEGREE AS DEFINED BY SECTION 120.80 OF THE PENAL LAW, AND THE DEFENDANT
ADMITS THE PREVIOUS CONVICTION OR THAT IT TOOK PLACE WITHIN THE TIME
PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW,
S. 3478 3
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 FOUR OF SECTION 120.85
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 CRIME OTHER THAN DOMESTIC
ABUSE IN THE SECOND DEGREE AS DEFINED BY SECTION 120.80 OF THE PENAL
LAW, AND THE DEFENDANT ADMITS THE PREVIOUS CONVICTION, THAT IT TOOK
PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION
120.85 OF THE PENAL LAW, OR THAT THE DEFENDANT WAS THE SPOUSE, FORMER
SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER AS
DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH CRIME,
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 FOUR OF SECTION 120.85
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 WAS THE SPOUSE, FORMER
SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER AS
DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH PREVI-
OUS CRIME, 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 WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR
DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE
VICTIM OF SUCH PREVIOUS CRIME, 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
WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR
S. 3478 4
DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE
VICTIM OF SUCH PREVIOUS CRIME, OR THAT THE PREVIOUS CONVICTION TOOK
PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION
120.85 OF THE PENAL LAW, SHALL BE BINDING IN ANY FUTURE PROCEEDING IN
WHICH THE ISSUE MAY ARISE UNLESS THE CONVICTION FOR THE DOMESTIC ABUSE
OFFENSE CHARGED IN THE INDICTMENT OR INFORMATION IS VACATED OR REVERSED.
S 3. Subdivision 1 of section 370.15 of the criminal procedure law, as
added by chapter 258 of the laws of 2011, is amended to read as follows:
1. When a defendant has been charged with assault or attempted assault
in the third degree as defined in sections 120.00 and 110.00 of the
penal law, menacing or attempted menacing in the second degree as
defined in sections 120.14 and 110.00 of the penal law, DOMESTIC ABUSE
OR ATTEMPTED DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED IN SECTIONS
120.80 AND 110.00 OF THE PENAL LAW, criminal obstruction of breathing or
blood circulation or attempted criminal obstruction of breathing or
blood circulation as defined in sections 121.11 and 110.00 of the penal
law, or forcible touching or attempted forcible touching as defined in
sections 130.52 and 110.00 of the penal law, the people may, at arraign-
ment or no later than forty-five days after arraignment, for the purpose
of notification to the division of criminal justice services pursuant to
section 380.97 of this part, serve on the defendant and file with the
court a notice alleging that the defendant is related or situated to the
victim of the crime in the manner specified in 18 U.S.C.
921(a)(33)(A)(ii).
S 4. Section 380.97 of the criminal procedure law, as added by chapter
258 of the laws of 2011, is amended to read as follows:
S 380.97 Notification to division of criminal justice services of deter-
minations in certain misdemeanor cases.
Upon judgment of conviction of assault or attempted assault in the
third degree, as defined in sections 120.00 and 110.00 of the penal law,
menacing or attempted menacing in the second degree, as defined in
section 120.14 and 110.00 of the penal law, DOMESTIC ABUSE OR ATTEMPTED
DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED IN SECTIONS 120.80 AND
110.00 OF THE PENAL LAW, criminal obstruction of breathing or blood
circulation or attempted criminal obstruction of breathing or blood
circulation, as defined in sections 121.11 and 110.00 of the penal law,
forcible touching or attempted forcible touching, as defined in sections
130.52 and 110.00 of the penal law, when the defendant has been deter-
mined, pursuant to section 370.15 of this part, to be related or situ-
ated to the victim of the offense in the manner specified in 18 U.S.C.
921(a)(33)(A)(ii), the clerk of the court shall include notification and
a copy of the written determination in a report of such conviction to
the division of criminal justice services to enable the division to
report such determination to the federal bureau of investigation and
assist the bureau in identifying persons prohibited from purchasing and
possessing a firearm pursuant to the provisions of 18 U.S.C. 922.
S 5. The opening paragraph of subdivision 1 of section 530.11 of the
criminal procedure law, as amended by chapter 526 of the laws of 2013,
is amended to read as follows:
The family court and the criminal courts shall have concurrent juris-
diction over any proceeding concerning acts which would constitute
disorderly conduct, harassment in the first degree, harassment in the
second degree, aggravated harassment in the second degree, DOMESTIC
ABUSE IN THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND DEGREE, sexual
misconduct, forcible touching, sexual abuse in the third degree, sexual
abuse in the second degree as set forth in subdivision one of section
S. 3478 5
130.60 of the penal law, stalking in the first degree, stalking in the
second degree, stalking in the third degree, stalking in the fourth
degree, criminal mischief, menacing in the second degree, menacing in
the third degree, reckless endangerment, strangulation in the first
degree, strangulation in the second degree, criminal obstruction of
breathing or blood circulation, assault in the second degree, assault in
the third degree, an attempted assault, identity theft in the first
degree, identity theft in the second degree, identity theft in the third
degree, grand larceny in the fourth degree, grand larceny in the third
degree or coercion in the second degree as set forth in subdivisions
one, two and three of section 135.60 of the penal law between spouses or
former spouses, or between parent and child or between members of the
same family or household except that if the respondent would not be
criminally responsible by reason of age pursuant to section 30.00 of the
penal law, then the family court shall have exclusive jurisdiction over
such proceeding. Notwithstanding a complainant's election to proceed in
family court, the criminal court shall not be divested of jurisdiction
to hear a family offense proceeding pursuant to this section. For
purposes of this section, "disorderly conduct" includes disorderly
conduct not in a public place. For purposes of this section, "members of
the same family or household" with respect to a proceeding in the crimi-
nal courts shall mean the following:
S 6. The opening paragraph of subdivision 1 of section 812 of the
family court act, as amended by chapter 526 of the laws of 2013, is
amended to read as follows:
The family court and the criminal courts shall have concurrent juris-
diction over any proceeding concerning acts which would constitute
disorderly conduct, harassment in the first degree, harassment in the
second degree, aggravated harassment in the second degree, DOMESTIC
ABUSE IN THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND DEGREE, sexual
misconduct, forcible touching, sexual abuse in the third degree, sexual
abuse in the second degree as set forth in subdivision one of section
130.60 of the penal law, stalking in the first degree, stalking in the
second degree, stalking in the third degree, stalking in the fourth
degree, criminal mischief, menacing in the second degree, menacing in
the third degree, reckless endangerment, criminal obstruction of breath-
ing or blood circulation, strangulation in the second degree, strangula-
tion in the first degree, assault in the second degree, assault in the
third degree, an attempted assault, identity theft in the first degree,
identity theft in the second degree, identity theft in the third degree,
grand larceny in the fourth degree, grand larceny in the third degree or
coercion in the second degree as set forth in subdivisions one, two and
three of section 135.60 of the penal law between spouses or former
spouses, or between parent and child or between members of the same
family or household except that if the respondent would not be criminal-
ly responsible by reason of age pursuant to section 30.00 of the penal
law, then the family court shall have exclusive jurisdiction over such
proceeding. Notwithstanding a complainant's election to proceed in fami-
ly court, the criminal court shall not be divested of jurisdiction to
hear a family offense proceeding pursuant to this section. In any
proceeding pursuant to this article, a court shall not deny an order of
protection, or dismiss a petition, solely on the basis that the acts or
events alleged are not relatively contemporaneous with the date of the
petition, the conclusion of the fact-finding or the conclusion of the
dispositional hearing. For purposes of this article, "disorderly
conduct" includes disorderly conduct not in a public place. For purposes
S. 3478 6
of this article, "members of the same family or household" shall mean
the following:
S 7. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.