S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3340
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 24, 2013
                                      ___________
       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:
    1    Section  1.  The  penal  law  is  amended by adding three new sections
    2  120.75, 120.80 and 120.85 to read as follows:
    3  S 120.75 DEFINITIONS; DOMESTIC ABUSE.
    4    FOR THE PURPOSES OF SECTIONS 120.80 AND 120.85 OF THIS ARTICLE:
    5    1. "DOMESTIC PARTNER" SHALL MEAN A PERSON WHO IS LIVING OR  HAS  LIVED
    6  TOGETHER  WITH  ANOTHER  PERSON  FOR AN EXTENDED DURATION IN AN INTIMATE
    7  RELATIONSHIP MARKED BY SEXUAL, PHYSICAL OR FINANCIAL INTERDEPENDENCE.
    8    2. "FELLOW PARENT OF A CHILD IN COMMON" SHALL MEAN A PERSON WHO HAS  A
    9  CHILD  IN  COMMON WITH ANOTHER PERSON REGARDLESS OF WHETHER SUCH PERSONS
   10  WERE MARRIED OR HAVE LIVED TOGETHER.
   11    3. "FORMER SPOUSE" SHALL MEAN A PERSON  FORMERLY  MARRIED  TO  ANOTHER
   12  PERSON  REGARDLESS  OF  WHETHER  SUCH  PERSONS  STILL RESIDE IN THE SAME
   13  HOUSEHOLD.
   14    4. "SPOUSE" SHALL MEAN A PERSON LEGALLY MARRIED TO ANOTHER PERSON.
   15  S 120.80 DOMESTIC ABUSE IN THE SECOND DEGREE.
   16    A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE SECOND DEGREE  WHEN,  WITH
   17  INTENT  TO  HARASS,  ANNOY  OR  ALARM  HIS OR HER SPOUSE, FORMER SPOUSE,
   18  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.
                                                                  LBD00816-01-3
       A. 3340                             2
    1  PHYSICAL INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A  CHILD
    2  IN COMMON OR DOMESTIC PARTNER.
    3    DOMESTIC ABUSE IN THE SECOND DEGREE IS A CLASS A MISDEMEANOR.
    4  S 120.85 DOMESTIC ABUSE IN THE FIRST DEGREE.
    5    A PERSON IS GUILTY OF DOMESTIC ABUSE IN THE FIRST DEGREE WHEN:
    6    1.  WITH  INTENT TO CAUSE PHYSICAL INJURY TO HIS OR HER SPOUSE, FORMER
    7  SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR DOMESTIC  PARTNER,  HE  OR
    8  SHE CAUSES SUCH INJURY TO SUCH SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A
    9  CHILD IN COMMON OR DOMESTIC PARTNER, OR TO A THIRD PERSON; OR
   10    2.  HE  OR SHE RECKLESSLY CAUSES PHYSICAL INJURY TO HIS OR HER SPOUSE,
   11  FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR  DOMESTIC  PARTNER;
   12  OR
   13    3.  WITH  CRIMINAL NEGLIGENCE, HE OR SHE CAUSES PHYSICAL INJURY TO HIS
   14  OR HER SPOUSE, FORMER SPOUSE, FELLOW PARENT OF  A  CHILD  IN  COMMON  OR
   15  DOMESTIC PARTNER BY MEANS OF A DEADLY WEAPON OR DANGEROUS INSTRUMENT; OR
   16    4. HE OR SHE COMMITS A CRIME AGAINST HIS OR HER SPOUSE, FORMER SPOUSE,
   17  FELLOW  PARENT  OF  A CHILD IN COMMON OR DOMESTIC PARTNER, AND HE OR SHE
   18  HAS PREVIOUSLY BEEN CONVICTED OF A CRIME  AGAINST  HIS  OR  HER  SPOUSE,
   19  FORMER  SPOUSE,  FELLOW  PARENT OF A CHILD IN COMMON OR DOMESTIC PARTNER
   20  WITHIN THE PRECEDING FIVE YEARS. THE PERSON AGAINST  WHOM  A  CRIME  HAS
   21  BEEN COMMITTED FOR PURPOSES OF CULPABILITY UNDER THIS SUBDIVISION MAY BE
   22  A  DIFFERENT  PERSON THAN WHOM THE PREDICATE CRIME WAS COMMITTED AGAINST
   23  DURING THE PRECEDING FIVE YEARS. FOR PURPOSES OF THIS  SUBDIVISION,  ANY
   24  PERIOD  OF  TIME  DURING  WHICH  THE  DEFENDANT WAS INCARCERATED FOR ANY
   25  REASON BETWEEN THE COMMISSION OF ANY PREVIOUS CRIMES AND THE  COMMISSION
   26  OF THE CRIME IN VIOLATION OF THIS SUBDIVISION SHALL BE EXCLUDED AND SUCH
   27  FIVE  YEAR  PERIOD  SHALL  BE  EXTENDED  BY THE PERIOD OR PERIOD OF TIME
   28  DURING WHICH THE DEFENDANT WAS INCARCERATED.
   29    DOMESTIC ABUSE IN THE FIRST DEGREE IS A CLASS E FELONY.
   30    S 2. The criminal procedure law is amended by  adding  a  new  section
   31  200.64 to read as follows:
   32  S 200.64 INDICTMENT; SPECIAL INFORMATION FOR DOMESTIC ABUSE OFFENDER.
   33    1.  WHENEVER  A  PERSON  IS  CHARGED  WITH THE COMMISSION OR ATTEMPTED
   34  COMMISSION OF DOMESTIC ABUSE IN THE FIRST DEGREE AS DEFINED IN  SUBDIVI-
   35  SION  FOUR OF SECTION 120.85 OF THE PENAL LAW, AN INDICTMENT OR INFORMA-
   36  TION FOR SUCH OFFENSE SHALL BE ACCOMPANIED  BY  A  SPECIAL  INFORMATION,
   37  FILED BY THE DISTRICT ATTORNEY WITH THE COURT, ALLEGING THAT THE DEFEND-
   38  ANT  WAS PREVIOUSLY CONVICTED OF A CRIME, THAT AT THE TIME OF THE PREVI-
   39  OUS CRIME OR AT AN EARLIER TIME THE DEFENDANT  WAS  THE  SPOUSE,  FORMER
   40  SPOUSE,  FELLOW  PARENT  OF  A  CHILD  IN COMMON OR DOMESTIC PARTNER, AS
   41  DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH  CRIME,
   42  AND  THAT  SUCH  PREVIOUS  CONVICTION  TOOK PLACE WITHIN THE TIME PERIOD
   43  SPECIFIED IN SUBDIVISION FOUR  OF  SECTION  120.85  OF  THE  PENAL  LAW.
   44  EXCEPT  AS  PROVIDED  IN  THIS SECTION, THE PEOPLE MAY NOT REFER TO SUCH
   45  SPECIAL INFORMATION DURING TRIAL NOR ADDUCE ANY EVIDENCE CONCERNING  THE
   46  ALLEGATIONS THEREIN.
   47    2.  AT  ANY  TIME BEFORE THE CLOSE OF THE PEOPLE'S CASE, THE COURT, IN
   48  THE ABSENCE OF THE JURY, MUST ARRAIGN THE DEFENDANT UPON  SUCH  INFORMA-
   49  TION  AND  ADVISE  HIM OR HER THAT HE OR SHE MAY ADMIT EACH SUCH ALLEGA-
   50  TION, DENY ANY SUCH ALLEGATION OR REMAIN MUTE WITH RESPECT TO  ANY  SUCH
   51  ALLEGATION.  DEPENDING  UPON  THE DEFENDANT'S RESPONSE, THE TRIAL OF THE
   52  INDICTMENT OR INFORMATION MUST THEN PROCEED AS FOLLOWS:
   53    (A) (I) IF THE PREVIOUS CONVICTION IS OF DOMESTIC ABUSE IN THE  SECOND
   54  DEGREE  AS DEFINED BY SECTION 120.80 OF THE PENAL LAW, AND THE DEFENDANT
   55  ADMITS THE PREVIOUS CONVICTION OR THAT IT TOOK  PLACE  WITHIN  THE  TIME
   56  PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85 OF THE PENAL LAW,
       A. 3340                             3
    1  THE  ADMITTED  ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR
    2  ALL SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION  70.00
    3  OF  THE  PENAL LAW. THE COURT MUST SUBMIT THE CASE TO THE JURY AS IF THE
    4  ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE
    5  COURT  MAY  NOT  SUBMIT TO THE JURY ANY LESSER INCLUDED OFFENSE WHICH IS
    6  DISTINGUISHED FROM THE OFFENSE CHARGED  SOLELY  BY  THE  FACT  THAT  THE
    7  PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF.
    8    (II)  IF  THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR REMAINS MUTE
    9  WITH RESPECT TO IT, THE PEOPLE MAY PROVE THAT  ELEMENT  OF  THE  OFFENSE
   10  BEFORE THE JURY AS A PART OF THEIR CASE.
   11    (III)  IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK PLACE
   12  WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF  SECTION  120.85
   13  OF  THE  PENAL  LAW,  OR  REMAINS  MUTE WITH RESPECT TO THAT MATTER, THE
   14  PEOPLE MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART  OF
   15  THEIR  CASE,  THAT  THE  PREVIOUS  CONVICTION TOOK PLACE WITHIN THE TIME
   16  PERIOD SPECIFIED.
   17    (B) (I) IF THE PREVIOUS CONVICTION IS FOR A CRIME OTHER THAN  DOMESTIC
   18  ABUSE  IN  THE  SECOND  DEGREE AS DEFINED BY SECTION 120.80 OF THE PENAL
   19  LAW, AND THE DEFENDANT ADMITS THE  PREVIOUS  CONVICTION,  THAT  IT  TOOK
   20  PLACE  WITHIN  THE  TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION
   21  120.85 OF THE PENAL LAW, OR THAT THE DEFENDANT WAS  THE  SPOUSE,  FORMER
   22  SPOUSE,  FELLOW  PARENT  OF  A  CHILD  IN  COMMON OR DOMESTIC PARTNER AS
   23  DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH  CRIME,
   24  THE  ADMITTED  ALLEGATION OR ALLEGATIONS SHALL BE DEEMED ESTABLISHED FOR
   25  ALL SUBSEQUENT PURPOSES, INCLUDING SENTENCING PURSUANT TO SECTION  70.00
   26  OF  THE  PENAL LAW. THE COURT MUST SUBMIT THE CASE TO THE JURY AS IF THE
   27  ADMITTED ALLEGATION OR ALLEGATIONS WERE NOT ELEMENTS OF THE OFFENSE. THE
   28  COURT MAY NOT SUBMIT TO THE JURY ANY LESSER INCLUDED  OFFENSE  WHICH  IS
   29  DISTINGUISHED  FROM  THE  OFFENSE  CHARGED  SOLELY  BY THE FACT THAT THE
   30  PREVIOUS CONVICTION IS NOT AN ELEMENT THEREOF.
   31    (II) IF THE DEFENDANT DENIES THE PREVIOUS CONVICTION OR  REMAINS  MUTE
   32  WITH  RESPECT  TO  IT,  THE PEOPLE MAY PROVE THAT ELEMENT OF THE OFFENSE
   33  BEFORE THE JURY AS A PART OF THEIR CASE.
   34    (III) IF THE DEFENDANT DENIES THAT THE PREVIOUS CONVICTION TOOK  PLACE
   35  WITHIN  THE  TIME PERIOD SPECIFIED IN SUBDIVISION FOUR OF SECTION 120.85
   36  OF THE PENAL LAW, OR REMAINS MUTE  WITH  RESPECT  TO  THAT  MATTER,  THE
   37  PEOPLE  MAY PROVE, BEYOND A REASONABLE DOUBT, BEFORE THE JURY AS PART OF
   38  THEIR CASE, THAT THE PREVIOUS CONVICTION  TOOK  PLACE  WITHIN  THE  TIME
   39  PERIOD SPECIFIED.
   40    (IV) IF THE DEFENDANT DENIES THAT THE DEFENDANT WAS THE SPOUSE, FORMER
   41  SPOUSE,  FELLOW  PARENT  OF  A  CHILD  IN  COMMON OR DOMESTIC PARTNER AS
   42  DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE VICTIM OF SUCH  PREVI-
   43  OUS  CRIME,  OR REMAINS MUTE WITH RESPECT TO THAT MATTER, THE PEOPLE MAY
   44  PROVE THAT ELEMENT OF THE OFFENSE BEFORE THE JURY AS  A  PART  OF  THEIR
   45  CASE.
   46    3.  NOTWITHSTANDING SUBDIVISION ONE, AND SUBPARAGRAPH (I) OF PARAGRAPH
   47  (A) AND SUBPARAGRAPH (I) OF PARAGRAPH (B) OF  SUBDIVISION  TWO  OF  THIS
   48  SECTION, IF EVIDENCE REGARDING THE PRIOR CONVICTION, OR THAT THE DEFEND-
   49  ANT WAS THE SPOUSE, FORMER SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR
   50  DOMESTIC  PARTNER  AS  DEFINED IN SECTION 120.75 OF THE PENAL LAW OF THE
   51  VICTIM OF SUCH PREVIOUS CRIME, IS RELEVANT TO HELP PROVE  THE  CRIME  OR
   52  CRIMES  CHARGED IN THE INDICTMENT OR INFORMATION, SUCH EVIDENCE SHALL BE
   53  ADMISSIBLE.
   54    4. A DETERMINATION PURSUANT TO THIS SECTION THAT THE DEFENDANT  HAS  A
   55  PREVIOUS CONVICTION, THAT AT THE TIME OF THE PRIOR OFFENSE THE DEFENDANT
   56  WAS  THE  SPOUSE,  FORMER  SPOUSE, FELLOW PARENT OF A CHILD IN COMMON OR
       A. 3340                             4
    1  DOMESTIC PARTNER AS DEFINED IN SECTION 120.75 OF THE PENAL  LAW  OF  THE
    2  VICTIM  OF  SUCH  PREVIOUS  CRIME,  OR THAT THE PREVIOUS CONVICTION TOOK
    3  PLACE WITHIN THE TIME PERIOD SPECIFIED IN SUBDIVISION  FOUR  OF  SECTION
    4  120.85  OF  THE  PENAL LAW, SHALL BE BINDING IN ANY FUTURE PROCEEDING IN
    5  WHICH THE ISSUE MAY ARISE UNLESS THE CONVICTION FOR THE  DOMESTIC  ABUSE
    6  OFFENSE CHARGED IN THE INDICTMENT OR INFORMATION IS VACATED OR REVERSED.
    7    S 3. Subdivision 1 of section 370.15 of the criminal procedure law, as
    8  added by chapter 258 of the laws of 2011, is amended to read as follows:
    9    1. When a defendant has been charged with assault or attempted assault
   10  in  the  third  degree  as  defined in sections 120.00 and 110.00 of the
   11  penal law, menacing or  attempted  menacing  in  the  second  degree  as
   12  defined  in  sections 120.14 and 110.00 of the penal law, DOMESTIC ABUSE
   13  OR ATTEMPTED DOMESTIC ABUSE IN THE SECOND DEGREE AS DEFINED IN  SECTIONS
   14  120.80 AND 110.00 OF THE PENAL LAW, criminal obstruction of breathing or
   15  blood  circulation  or  attempted  criminal  obstruction of breathing or
   16  blood circulation as defined in sections 121.11 and 110.00 of the  penal
   17  law,  or  forcible touching or attempted forcible touching as defined in
   18  sections 130.52 and 110.00 of the penal law, the people may, at arraign-
   19  ment or no later than forty-five days after arraignment, for the purpose
   20  of notification to the division of criminal justice services pursuant to
   21  section 380.97 of this part, serve on the defendant and  file  with  the
   22  court a notice alleging that the defendant is related or situated to the
   23  victim   of   the   crime   in   the   manner  specified  in  18  U.S.C.
   24  921(a)(33)(A)(ii).
   25    S 4. Section 380.97 of the criminal procedure law, as added by chapter
   26  258 of the laws of 2011, is amended to read as follows:
   27  S 380.97 Notification to division of criminal justice services of deter-
   28               minations in certain misdemeanor cases.
   29    Upon judgment of conviction of assault or  attempted  assault  in  the
   30  third degree, as defined in sections 120.00 and 110.00 of the penal law,
   31  menacing  or  attempted  menacing  in  the  second degree, as defined in
   32  section 120.14 and 110.00 of the penal law, DOMESTIC ABUSE OR  ATTEMPTED
   33  DOMESTIC  ABUSE  IN  THE SECOND DEGREE AS DEFINED IN SECTIONS 120.80 AND
   34  110.00 OF THE PENAL LAW, criminal  obstruction  of  breathing  or  blood
   35  circulation  or  attempted  criminal  obstruction  of breathing or blood
   36  circulation, as defined in sections 121.11 and 110.00 of the penal  law,
   37  forcible touching or attempted forcible touching, as defined in sections
   38  130.52  and  110.00 of the penal law, when the defendant has been deter-
   39  mined, pursuant to section 370.15 of this part, to be related  or  situ-
   40  ated  to  the victim of the offense in the manner specified in 18 U.S.C.
   41  921(a)(33)(A)(ii), the clerk of the court shall include notification and
   42  a copy of the written determination in a report of  such  conviction  to
   43  the  division  of  criminal  justice  services to enable the division to
   44  report such determination to the federal  bureau  of  investigation  and
   45  assist  the bureau in identifying persons prohibited from purchasing and
   46  possessing a firearm pursuant to the provisions of 18 U.S.C. 922.
   47    S 5. The opening paragraph of subdivision 1 of section 530.11  of  the
   48  criminal  procedure  law, as amended by chapter 405 of the laws of 2010,
   49  is amended to read as follows:
   50    The family court and the criminal courts shall have concurrent  juris-
   51  diction  over  any  proceeding  concerning  acts  which would constitute
   52  disorderly conduct, harassment in the first degree,  harassment  in  the
   53  second  degree,  aggravated  harassment  in  the second degree, DOMESTIC
   54  ABUSE IN THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND  DEGREE,  sexual
   55  misconduct,  forcible touching, sexual abuse in the third degree, sexual
   56  abuse in the second degree as set forth in subdivision  one  of  section
       A. 3340                             5
    1  130.60  of  the penal law, stalking in the first degree, stalking in the
    2  second degree, stalking in the third  degree,  stalking  in  the  fourth
    3  degree,  criminal  mischief,  menacing in the second degree, menacing in
    4  the  third  degree,  reckless  endangerment,  strangulation in the first
    5  degree, strangulation in the  second  degree,  criminal  obstruction  of
    6  breathing or blood circulation, assault in the second degree, assault in
    7  the  third  degree  or  an  attempted  assault between spouses or former
    8  spouses, or between parent and child or  between  members  of  the  same
    9  family or household except that if the respondent would not be criminal-
   10  ly  responsible  by reason of age pursuant to section 30.00 of the penal
   11  law, then the family court shall have exclusive jurisdiction  over  such
   12  proceeding. Notwithstanding a complainant's election to proceed in fami-
   13  ly  court,  the  criminal court shall not be divested of jurisdiction to
   14  hear a family offense proceeding pursuant to this section. For  purposes
   15  of this section, "disorderly conduct" includes disorderly conduct not in
   16  a public place. For purposes of this section, "members of the same fami-
   17  ly  or  household"  with  respect to a proceeding in the criminal courts
   18  shall mean the following:
   19    S 6. The opening paragraph of subdivision 1  of  section  812  of  the
   20  family  court  act, as separately amended by chapters 341 and 405 of the
   21  laws of 2010, is amended to read as follows:
   22    The family court and the criminal courts shall have concurrent  juris-
   23  diction  over  any  proceeding  concerning  acts  which would constitute
   24  disorderly conduct, harassment in the first degree,  harassment  in  the
   25  second  degree,  aggravated  harassment  in  the second degree, DOMESTIC
   26  ABUSE IN THE FIRST DEGREE, DOMESTIC ABUSE IN THE SECOND  DEGREE,  sexual
   27  misconduct,  forcible touching, sexual abuse in the third degree, sexual
   28  abuse in the second degree as set forth in subdivision  one  of  section
   29  130.60  of  the penal law, stalking in the first degree, stalking in the
   30  second degree, stalking in the third  degree,  stalking  in  the  fourth
   31  degree,  criminal  mischief,  menacing in the second degree, menacing in
   32  the third degree, reckless endangerment, criminal obstruction of breath-
   33  ing or blood circulation, strangulation in the second degree, strangula-
   34  tion in the first degree, assault in the second degree, assault  in  the
   35  third  degree or an attempted assault, criminal obstruction of breathing
   36  or blood circulation or strangulation between spouses or former spouses,
   37  or between parent and child or between members of  the  same  family  or
   38  household  except that if the respondent would not be criminally respon-
   39  sible by reason of age pursuant to section 30.00 of the penal law,  then
   40  the family court shall have exclusive jurisdiction over such proceeding.
   41  Notwithstanding a complainant's election to proceed in family court, the
   42  criminal  court  shall  not be divested of jurisdiction to hear a family
   43  offense proceeding pursuant to this section. In any proceeding  pursuant
   44  to  this  article,  a  court  shall  not deny an order of protection, or
   45  dismiss a petition, solely on the basis that the acts or events  alleged
   46  are  not  relatively  contemporaneous with the date of the petition, the
   47  conclusion of the fact-finding or the conclusion  of  the  dispositional
   48  hearing.  For  purposes  of  this article, "disorderly conduct" includes
   49  disorderly conduct not in a public place. For purposes of this  article,
   50  "members of the same family or household" shall mean the following:
   51    S 7. This act shall take effect on the first of November next succeed-
   52  ing the date on which it shall have become a law.