S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2243
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 14, 2021
                                ___________
 
 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.
                                                            LBD01228-01-1
              

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 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. 2243                             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
 amended  by  section  1  of part Q of chapter 55 of the laws of 2020, is
 amended to read as follows:
   1. When a defendant has been charged with assault in the third degree,
 menacing in the third degree, menacing in the  second  degree,  DOMESTIC
 ABUSE  IN  THE SECOND DEGREE, criminal obstruction of breathing or blood
 circulation, unlawful imprisonment in the second degree, coercion in the
 third degree, criminal tampering in the third degree, criminal  contempt
 in the second degree, harassment in the first degree, aggravated harass-
 ment in the second degree, criminal trespass in the third degree, crimi-
 nal trespass in the second degree, arson in the fifth degree, or attempt
 to  commit  any  of  the  above-listed  offenses,  the  people shall, at
 arraignment or no later than forty-five days after arraignment, serve on
 the defendant and file with the court a notice alleging that the defend-
 ant and the person alleged to be the victim of such crime  were  members
 of the same family or household as defined in subdivision one of section
 530.11 of this chapter.
   § 4. Section 380.97 of the criminal procedure law, as added by chapter
 60 of the laws of 2018, is amended to read as follows:
 § 380.97 Notification  to  division  of  criminal  justice  services  of
            certain misdemeanor convictions.
   Upon judgment of conviction of assault in the third  degree,  menacing
 in  the  third  degree, menacing in the second degree, DOMESTIC ABUSE IN
 THE SECOND DEGREE, criminal obstruction of  breathing  or  blood  circu-
 lation,  unlawful  imprisonment  in  the  second degree, coercion in the
 third degree, criminal tampering in the third degree, criminal  contempt
 in  the  second  degree,  harassment  in the first degree, or aggravated
 harassment in the second degree, criminal trespass in the third  degree,
 criminal  trespass  in  the second degree, arson in the fifth degree, or
 attempt to commit any of the above-listed offenses, when  the  defendant
 and  victim  have  been  determined,  pursuant to section 370.15 of this
 part, to be members of the same family or household as defined in subdi-
 vision one of section 530.11 of this chapter, 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 or other weapon due
 to conviction of an offense specified in paragraph [c] (C)  of  subdivi-
 sion seventeen of section 265.00 of the penal law.
   §  5.  The opening paragraph of subdivision 1 of section 530.11 of the
 criminal procedure law, as amended by chapter 109 of the laws  of  2019,
 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, unlawful dissemination or publication of an intimate
 image,  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

 A. 2243                             5
 
 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, stalk-
 ing  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 circu-
 lation, 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,  coercion  in  the
 second  degree  or coercion in the third degree as set forth in subdivi-
 sions 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 criminal courts shall mean the following:
   § 6. The opening paragraph of subdivision 1  of  section  812  of  the
 family  court  act,  as  amended  by chapter 109 of the laws of 2019, 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, unlawful dissemination or publication of an intimate
 image, 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, stalk-
 ing 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 breathing or blood circu-
 lation, strangulation in the second degree, strangulation 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, coercion in the
 second degree or coercion in the third degree as set forth  in  subdivi-
 sions  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. 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

 A. 2243                             6
 
 conclusion  of  the dispositional hearing. For purposes of this article,
 "disorderly conduct" includes disorderly conduct not in a public  place.
 For  purposes 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.