S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          844
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  Sen.  PARKER -- read twice and ordered printed, and when
         printed to be committed to the Committee on Children and Families
       AN ACT to amend the domestic relations law, the family court act and the
         criminal procedure law, in  relation  to  requiring  mandatory  prison
         sentences for repeat violators of orders of protection
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The closing paragraph of subdivision 3 of  section  240  of
    2  the domestic relations law, as added by chapter 606 of the laws of 1999,
    3  is amended to read as follows:
    4    Upon  issuance  of  an  order  of  protection  or  temporary  order of
    5  protection or upon a violation of such order,  the  court  may  make  an
    6  order in accordance with section eight hundred forty-two-a of the family
    7  court  act directing the surrender of firearms, revoking or suspending a
    8  party's firearms license, and/or directing that such party be ineligible
    9  to receive a firearms license. Upon issuance of an order  of  protection
   10  pursuant  to  this section or upon a finding of a violation thereof, the
   11  court also may direct payment of restitution in an amount not to  exceed
   12  ten thousand dollars in accordance with subdivision (e) of section eight
   13  hundred  forty-one of such act; provided, however, that in no case shall
   14  an order of restitution be issued where the court  determines  that  the
   15  party against whom the order would be issued has already compensated the
   16  injured  party  or  where  such  compensation is incorporated in a final
   17  judgment or settlement of the action.  IF THE PERSON  SO  VIOLATING  THE
   18  ORDER  HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER ON MORE THAN ONE OCCA-
   19  SION, AND THIS VIOLATION CONSISTED OF COMMITTING  A  FAMILY  OFFENSE  AS
   20  DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
   21  COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
   22  LAW,  THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF NO
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02881-01-3
       S. 844                              2
    1  LESS THAN THIRTY DAYS, WHICH MAY BE SERVED UPON CERTAIN  SPECIFIED  DAYS
    2  OR PARTS OF DAYS AS THE COURT MAY DIRECT.
    3    S  2.  Subdivision  9 of section 252 of the domestic relations law, as
    4  added by chapter 606   of the laws  of  1999,  is  amended  to  read  as
    5  follows:
    6    9.  Upon  issuance  of  an  order  of protection or temporary order of
    7  protection or upon a violation of such order, the court may [take]  MAKE
    8  an  order  in  accordance  with section eight hundred forty-two-a of the
    9  family court act  directing  the  surrender  of  firearms,  revoking  or
   10  suspending  a party's firearms license, and/or directing that such party
   11  be ineligible to receive a firearms license. Upon issuance of  an  order
   12  of  protection pursuant to this section or upon a finding of a violation
   13  thereof, the court also may direct payment of restitution in  an  amount
   14  not to exceed ten thousand dollars in accordance with subdivision (e) of
   15  section  eight hundred forty-one of such act; provided, however, that in
   16  no case shall an order of restitution be issued where the  court  deter-
   17  mines  that the party against whom the order would be issued has already
   18  compensated the injured party or where such compensation is incorporated
   19  in a final [judgement] JUDGMENT or settlement of the  action.    IF  THE
   20  PERSON SO VIOLATING THE ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER
   21  ON  MORE THAN ONE OCCASION, AND THIS VIOLATION CONSISTED OF COMMITTING A
   22  FAMILY OFFENSE AS DEFINED IN SUBDIVISION ONE OF  SECTION  EIGHT  HUNDRED
   23  TWELVE  OF  THE FAMILY COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF
   24  THE CRIMINAL PROCEDURE LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM
   25  OF IMPRISONMENT OF NO LESS THAN THIRTY DAYS, WHICH MAY  BE  SERVED  UPON
   26  CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE COURT MAY DIRECT.
   27    S  3. Section 846-a of the family court act, as amended by chapter 597
   28  of the laws of 1998, is amended to read as follows:
   29    S 846-a. Powers on failure to obey order. If a respondent  is  brought
   30  before  the court for failure to obey any lawful order issued under this
   31  article or an order of protection issued by a court of competent  juris-
   32  diction  of  another  state,  territorial  or  tribal  jurisdiction in a
   33  proceeding and if, after hearing, the court is  satisfied  by  competent
   34  proof  that  the respondent has willfully failed to obey any such order,
   35  the court may modify an existing order to add reasonable  conditions  of
   36  behavior  to  the  existing  order  of  protection,  make a new order of
   37  protection in accordance with section eight hundred  forty-two  OF  THIS
   38  PART, may order the forfeiture of bail in a manner consistent with arti-
   39  cle  five  hundred  forty of the criminal procedure law if bail has been
   40  ordered pursuant to this act,  may  order  the  respondent  to  pay  the
   41  petitioner's  reasonable  and  necessary counsel fees in connection with
   42  the violation petition where the court finds that the violation  of  its
   43  order  was willful, and may commit the respondent to jail for a term not
   44  to exceed six months.  IF THE RESPONDENT HAS  BEEN  FOUND  BY  COMPETENT
   45  PROOF  TO HAVE WILLFULLY FAILED TO OBEY SUCH ORDER OF PROTECTION ON MORE
   46  THAN ONE OCCASION, AND THIS WILLFUL FAILURE CONSISTED  OF  COMMITTING  A
   47  FAMILY  OFFENSE  AS  DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED
   48  TWELVE OF THIS ARTICLE OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIM-
   49  INAL PROCEDURE LAW, THE COURT SHALL COMMIT SUCH  PERSON  TO  A  TERM  OF
   50  IMPRISONMENT OF NOT LESS THAN THIRTY DAYS. Such commitment may be served
   51  upon  certain  specified  days or parts of days as the court may direct,
   52  and the court may, at any time within the term of such sentence,  revoke
   53  such  suspension  and  commit  the  respondent  for the remainder of the
   54  original sentence, or suspend the remainder of  such  sentence.  If  the
   55  court  determines  that  the willful failure to obey such order involves
   56  violent behavior constituting the crimes of menacing, reckless endanger-
       S. 844                              3
    1  ment, assault or attempted assault and if such a respondent is  licensed
    2  to  carry,  possess,  repair and dispose of firearms pursuant to section
    3  400.00 of the penal law, the court  may  also  immediately  revoke  such
    4  license  and may arrange for the immediate surrender and disposal of any
    5  firearm such respondent owns or possesses.   If the willful  failure  to
    6  obey  such  order  involves the infliction of serious physical injury as
    7  defined in subdivision ten of section 10.00 of the penal law or the  use
    8  or  threatened  use of a deadly weapon or dangerous instrument, as those
    9  terms are defined in subdivisions twelve and thirteen of  section  10.00
   10  of  the  penal law, such revocation and immediate surrender and disposal
   11  of any firearm owned or possessed  by  respondent  shall  be  mandatory,
   12  pursuant to subdivision eleven of section 400.00 of the penal law.
   13    S  4.  Subdivision 11 of section 530.12 of the criminal procedure law,
   14  as amended by chapter 498 of the laws of 1993, the opening paragraph  as
   15  amended  by chapter 597 of the laws of 1998, paragraph (a) as amended by
   16  chapter 222 of the laws of 1994 and paragraph (d) as amended by  chapter
   17  644 of the laws of 1996, is amended to read as follows:
   18    11.    If  a defendant is brought before the court for failure to obey
   19  any lawful order issued under this section, or an  order  of  protection
   20  issued  by  a court of competent jurisdiction in another state, territo-
   21  rial or tribal jurisdiction, and if, after hearing, the court is  satis-
   22  fied  by competent proof that the defendant has willfully failed to obey
   23  any such order, (A) the court may:
   24    [(a)] (I) revoke an order of recognizance or revoke an order  of  bail
   25  or order forfeiture of such bail and commit the defendant to custody; or
   26    [(b)]  (II)  restore  the  case to the calendar when there has been an
   27  adjournment in contemplation of dismissal and commit  the  defendant  to
   28  custody; or
   29    [(c)]  (III) revoke a conditional discharge in accordance with section
   30  410.70 of this chapter and impose  probation  supervision  or  impose  a
   31  sentence  of  imprisonment in accordance with the penal law based on the
   32  original conviction; or
   33    [(d)] (IV) revoke probation in accordance with section 410.70 of  this
   34  chapter  and  impose  a  sentence of imprisonment in accordance with the
   35  penal law based on the original conviction.  In  addition,  if  the  act
   36  which  constitutes the violation of the order of protection or temporary
   37  order of protection is a crime or  a  violation  the  defendant  may  be
   38  charged with and tried for that crime or violation; AND
   39    (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
   40  SUCH  ORDER  OF  PROTECTION  ON  MORE THAN ONE OCCASION AND THIS WILLFUL
   41  FAILURE CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN  SUBDIVI-
   42  SION  ONE  OF  THIS  SECTION OR SUBDIVISION ONE OF SECTION EIGHT HUNDRED
   43  TWELVE OF THE FAMILY COURT ACT, THE COURT SHALL COMMIT SUCH PERSON TO  A
   44  TERM  OF  IMPRISONMENT OF NOT LESS THAN THIRTY DAYS, WHICH MAY BE SERVED
   45  UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE COURT MAY DIRECT.
   46    S 5. Subdivision 8 of section 530.13 of the criminal procedure law, as
   47  added by chapter 388 of the laws of 1984, is amended to read as follows:
   48    8. If a defendant is brought before the court for failure to obey  any
   49  lawful  order issued under this section and if, after hearing, the court
   50  is satisfied by competent proof that the defendant has willfully  failed
   51  to obey any such order, (A) the court may:
   52    [(a)]  (I)  revoke  an  order  of  recognizance or bail and commit the
   53  defendant to custody; or
   54    [(b)] (II) restore the case to the calendar when  there  has  been  an
   55  adjournment  in  contemplation  of dismissal and commit the defendant to
       S. 844                              4
    1  custody or impose or increase bail pending a trial of the original crime
    2  or violation; or
    3    [(c)]  (III) revoke a conditional discharge in accordance with section
    4  410.70 of this chapter and impose  probation  supervision  or  impose  a
    5  sentence  of  imprisonment in accordance with the penal law based on the
    6  original conviction; or
    7    [(d)] (IV) revoke probation in accordance with section 410.70 of  this
    8  chapter  and  impose  a  sentence of imprisonment in accordance with the
    9  penal law based on the original conviction.  In  addition,  if  the  act
   10  which  constitutes the violation of the order of protection or temporary
   11  order of protection is a crime or  a  violation  the  defendant  may  be
   12  charged with and tried for that crime or violation; AND
   13    (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
   14  SUCH  ORDER  OF  PROTECTION  ON  MORE THAN ONE OCCASION AND THIS WILLFUL
   15  FAILURE CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN  SUBDIVI-
   16  SION ONE OF SECTION 530.12 OF THIS ARTICLE OR SUBDIVISION ONE OF SECTION
   17  EIGHT  HUNDRED  TWELVE  OF  THE FAMILY COURT ACT, THE COURT SHALL COMMIT
   18  SUCH PERSON TO A TERM OF IMPRISONMENT OF  NOT  LESS  THAN  THIRTY  DAYS,
   19  WHICH  MAY BE SERVED UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE
   20  COURT MAY DIRECT.
   21    S 6. This act shall take effect on the first of November next succeed-
   22  ing the date on which it shall have become a law.