S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6170
 
                        2017-2018 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 27, 2017
                                ___________
 
 Introduced  by  M.  of A. CUSICK, O'DONNELL -- read once and referred to
   the Committee on Codes
 
 AN ACT to amend the penal law,  in  relation  to  establishing  domestic
   abuse  offenses;  to  amend the criminal procedure law, in relation to
   providing for a special information in the indictment of certain felo-
   ny domestic abuse offenses  and  procedures  for  determining  whether
   domestic  abuse  misdemeanors  are  crimes  of  domestic  violence for
   purposes of federal law; and to amend the criminal procedure  law  and
   the  family  court act, in relation to including domestic abuse in the
   first and second degrees as family offenses
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  penal  law  is  amended by adding three new sections
 120.75, 120.80 and 120.85 to read as follows:
 § 120.75 DEFINITIONS; DOMESTIC ABUSE.
   FOR THE PURPOSES OF SECTIONS 120.80 AND 120.85 OF THIS ARTICLE:
   1. "DOMESTIC PARTNER" SHALL MEAN A PERSON WHO IS LIVING OR  HAS  LIVED
 TOGETHER  WITH  ANOTHER  PERSON  FOR AN EXTENDED DURATION IN AN INTIMATE
 RELATIONSHIP MARKED BY SEXUAL, PHYSICAL OR FINANCIAL INTERDEPENDENCE.
   2. "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN A PERSON WHO HAS  A
 CHILD  IN  COMMON WITH ANOTHER PERSON REGARDLESS OF WHETHER SUCH PERSONS
 WERE MARRIED OR HAVE LIVED TOGETHER.
   3. "FORMER SPOUSE" SHALL MEAN A PERSON  FORMERLY  MARRIED  TO  ANOTHER
 PERSON  REGARDLESS  OF  WHETHER  SUCH  PERSONS  STILL RESIDE IN THE SAME
 HOUSEHOLD.
   4. "SPOUSE" SHALL MEAN A PERSON LEGALLY MARRIED TO ANOTHER PERSON.
 § 120.80 DOMESTIC ABUSE IN THE SECOND DEGREE.
   A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE SECOND DEGREE  WHEN,  WITH
 INTENT  TO  HARASS,  ANNOY  OR  ALARM  HIS OR HER SPOUSE, FORMER SPOUSE,
 FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER, HE OR SHE CAUSES
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02244-01-7
              

 A. 6170                             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.
 § 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.
   § 2. The criminal procedure law is amended by  adding  a  new  section
 200.64 to read as follows:
 § 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,

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 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

 A. 6170                             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.
   § 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).
   § 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:
 § 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.
   § 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

 A. 6170                             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:
   §  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

 A. 6170                             6
 
 of  this  article,  "members of the same family or household" shall mean
 the following:
   § 7. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.