S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        844--A
                              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  --
         recommitted  to  the  Committee on Children and Families in accordance
         with Senate Rule 6, sec. 8  --  committee  discharged,  bill  amended,
         ordered reprinted as amended and recommitted to said committee
       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. Paragraph h of subdivision 3 of section 240 of the domestic
    2  relations  law,  as amended by chapter 1 of the laws of 2013, is amended
    3  to read as follows:
    4    h. Upon issuance of an order  of  protection  or  temporary  order  of
    5  protection  or  upon  a  violation of such order, the court shall make a
    6  determination regarding the suspension and revocation of  a  license  to
    7  carry,  possess, repair or dispose of a firearm or firearms, ineligibil-
    8  ity for such a license and the surrender of firearms in accordance  with
    9  sections  eight hundred forty-two-a and eight hundred forty-six-a of the
   10  family court act, as applicable. Upon issuance of an order of protection
   11  pursuant to this section or upon a finding of a violation  thereof,  the
   12  court  also may direct payment of restitution in an amount not to exceed
   13  ten thousand dollars in accordance with subdivision (e) of section eight
   14  hundred forty-one of such act; provided, however, that in no case  shall
   15  an  order  of  restitution be issued where the court determines that the
   16  party against whom the order would be issued has already compensated the
   17  injured party or where such compensation  is  incorporated  in  a  final
   18  judgment  or  settlement  of the action.  IF THE PERSON SO VIOLATING THE
   19  ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER ON MORE THAN ONE  OCCA-
   20  SION,  AND  THIS  VIOLATION  CONSISTED OF COMMITTING A FAMILY OFFENSE AS
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD02881-02-4
       S. 844--A                           2
    1  DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
    2  COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
    3  LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF  NO
    4  LESS  THAN  THIRTY DAYS, WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS
    5  OR PARTS OF DAYS AS THE COURT MAY DIRECT.
    6    S 2. Subdivision 9 of section 252 of the domestic  relations  law,  as
    7  amended  by  chapter  1    of  the  laws  of 2013, is amended to read as
    8  follows:
    9    9. Upon issuance of an order  of  protection  or  temporary  order  of
   10  protection  or  upon  a  violation of such order, the court shall make a
   11  determination regarding the suspension and revocation of  a  license  to
   12  carry,  possess, repair or dispose of a firearm or firearms, ineligibil-
   13  ity for such a license and the surrender of firearms in accordance  with
   14  sections  eight hundred forty-two-a and eight hundred forty-six-a of the
   15  family court act, as applicable. Upon issuance of an order of protection
   16  pursuant to this section or upon a finding of a violation  thereof,  the
   17  court  also may direct payment of restitution in an amount not to exceed
   18  ten thousand dollars in accordance with subdivision (e) of section eight
   19  hundred forty-one of such act; provided, however, that in no case  shall
   20  an  order  of  restitution be issued where the court determines that the
   21  party against whom the order would be issued has already compensated the
   22  injured party or where such compensation  is  incorporated  in  a  final
   23  judgment  or  settlement  of the action.  IF THE PERSON SO VIOLATING THE
   24  ORDER HAS BEEN FOUND TO HAVE VIOLATED SUCH ORDER ON MORE THAN ONE  OCCA-
   25  SION,  AND  THIS  VIOLATION  CONSISTED OF COMMITTING A FAMILY OFFENSE AS
   26  DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED TWELVE OF THE FAMILY
   27  COURT ACT OR SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
   28  LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF  NO
   29  LESS  THAN  THIRTY DAYS, WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS
   30  OR PARTS OF DAYS AS THE COURT MAY DIRECT.
   31    S 3. Section 846-a of the family court act, as amended by chapter 1 of
   32  the laws of 2013, is amended to read as follows:
   33    S 846-a. Powers on failure to obey order. If a respondent  is  brought
   34  before  the court for failure to obey any lawful order issued under this
   35  article or an order of  protection  or  temporary  order  of  protection
   36  issued  pursuant to this act or issued by a court of competent jurisdic-
   37  tion of another state, territorial or tribal jurisdiction and if,  after
   38  hearing,  the  court is satisfied by competent proof that the respondent
   39  has willfully failed to obey any such order, the  court  may  modify  an
   40  existing order or temporary order of protection to add reasonable condi-
   41  tions  of behavior to the existing order, make a new order of protection
   42  in accordance with section eight hundred forty-two  of  this  part,  may
   43  order  the  forfeiture  of bail in a manner consistent with article five
   44  hundred forty of the criminal procedure law if  bail  has  been  ordered
   45  pursuant  to  this act, may order the respondent to pay the petitioner's
   46  reasonable and necessary counsel fees in connection with  the  violation
   47  petition where the court finds that the violation of its order was will-
   48  ful,  and may commit the respondent to jail for a term not to exceed six
   49  months.  IF THE RESPONDENT HAS BEEN FOUND BY  COMPETENT  PROOF  TO  HAVE
   50  WILLFULLY FAILED TO OBEY SUCH ORDER OF PROTECTION ON MORE THAN ONE OCCA-
   51  SION,  AND THIS WILLFUL FAILURE CONSISTED OF COMMITTING A FAMILY OFFENSE
   52  AS DEFINED IN SUBDIVISION ONE OF SECTION EIGHT HUNDRED  TWELVE  OF  THIS
   53  ARTICLE  OR  SUBDIVISION ONE OF SECTION 530.12 OF THE CRIMINAL PROCEDURE
   54  LAW, THE COURT SHALL COMMIT SUCH PERSON TO A TERM OF IMPRISONMENT OF NOT
   55  LESS THAN THIRTY DAYS. Such commitment may be served upon certain speci-
   56  fied days or parts of days as the court may direct, and the  court  may,
       S. 844--A                           3
    1  at any time within the term of such sentence, revoke such suspension and
    2  commit  the  respondent  for  the remainder of the original sentence, or
    3  suspend the remainder of such sentence. If the court determines that the
    4  willful  failure to obey such order involves violent behavior constitut-
    5  ing the crimes of menacing, reckless endangerment, assault or  attempted
    6  assault  and  if such a respondent is licensed to carry, possess, repair
    7  and dispose of firearms pursuant to section 400.00 of the penal law, the
    8  court may also immediately revoke such license and may arrange  for  the
    9  immediate  surrender  pursuant  to  subparagraph (f) of paragraph one of
   10  subdivision a of section 265.20 and subdivision six of section 400.05 of
   11  the penal law, and disposal of  any  firearm  such  respondent  owns  or
   12  possesses.  If  the  willful  failure  to  obey  such order involves the
   13  infliction of physical injury as defined in subdivision nine of  section
   14  10.00  of  the penal law or the use or threatened use of a deadly weapon
   15  or dangerous instrument, as those  terms  are  defined  in  subdivisions
   16  twelve  and  thirteen of section 10.00 of the penal law, such revocation
   17  and immediate surrender pursuant to subparagraph (f) of paragraph one of
   18  subdivision a of section 265.20 and subdivision six of section 400.05 of
   19  the penal law [six] and disposal of any firearm owned  or  possessed  by
   20  respondent shall be mandatory, pursuant to subdivision eleven of section
   21  400.00 of the penal law.
   22    S  4.  Subdivision 11 of section 530.12 of the criminal procedure law,
   23  as amended by chapter 498 of the laws of 1993, the opening paragraph  as
   24  amended  by chapter 597 of the laws of 1998, paragraph (a) as amended by
   25  chapter 222 of the laws of 1994 and paragraph (d) as amended by  chapter
   26  644 of the laws of 1996, is amended to read as follows:
   27    11.    If  a defendant is brought before the court for failure to obey
   28  any lawful order issued under this section, or an  order  of  protection
   29  issued  by  a court of competent jurisdiction in another state, territo-
   30  rial or tribal jurisdiction, and if, after hearing, the court is  satis-
   31  fied  by competent proof that the defendant has willfully failed to obey
   32  any such order, (A) the court may:
   33    [(a)] (I) revoke an order of recognizance or revoke an order  of  bail
   34  or order forfeiture of such bail and commit the defendant to custody; or
   35    [(b)]  (II)  restore  the  case to the calendar when there has been an
   36  adjournment in contemplation of dismissal and commit  the  defendant  to
   37  custody; or
   38    [(c)]  (III) revoke a conditional discharge in accordance with section
   39  410.70 of this chapter and impose  probation  supervision  or  impose  a
   40  sentence  of  imprisonment in accordance with the penal law based on the
   41  original conviction; or
   42    [(d)] (IV) revoke probation in accordance with section 410.70 of  this
   43  chapter  and  impose  a  sentence of imprisonment in accordance with the
   44  penal law based on the original conviction.  In  addition,  if  the  act
   45  which  constitutes the violation of the order of protection or temporary
   46  order of protection is a crime or  a  violation  the  defendant  may  be
   47  charged with and tried for that crime or violation; AND
   48    (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
   49  SUCH  ORDER  OF  PROTECTION  ON  MORE THAN ONE OCCASION AND THIS WILLFUL
   50  FAILURE CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN  SUBDIVI-
   51  SION  ONE  OF  THIS  SECTION OR SUBDIVISION ONE OF SECTION EIGHT HUNDRED
   52  TWELVE OF THE FAMILY COURT ACT, THE COURT SHALL COMMIT SUCH PERSON TO  A
   53  TERM  OF  IMPRISONMENT OF NOT LESS THAN THIRTY DAYS, WHICH MAY BE SERVED
   54  UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS THE COURT MAY DIRECT.
   55    S 5. Subdivision 8 of section 530.13 of the criminal procedure law, as
   56  added by chapter 388 of the laws of 1984, is amended to read as follows:
       S. 844--A                           4
    1    8. If a defendant is brought before the court for failure to obey  any
    2  lawful  order issued under this section and if, after hearing, the court
    3  is satisfied by competent proof that the defendant has willfully  failed
    4  to obey any such order, (A) the court may:
    5    [(a)]  (I)  revoke  an  order  of  recognizance or bail and commit the
    6  defendant to custody; or
    7    [(b)] (II) restore the case to the calendar when  there  has  been  an
    8  adjournment  in  contemplation  of dismissal and commit the defendant to
    9  custody or impose or increase bail pending a trial of the original crime
   10  or violation; or
   11    [(c)] (III) revoke a conditional discharge in accordance with  section
   12  410.70  of  this  chapter  and  impose probation supervision or impose a
   13  sentence of imprisonment in accordance with the penal law based  on  the
   14  original conviction; or
   15    [(d)]  (IV) revoke probation in accordance with section 410.70 of this
   16  chapter and impose a sentence of imprisonment  in  accordance  with  the
   17  penal  law  based  on  the  original conviction. In addition, if the act
   18  which constitutes the violation of the order of protection or  temporary
   19  order  of  protection  is  a  crime  or a violation the defendant may be
   20  charged with and tried for that crime or violation; AND
   21    (B) IF THE COURT FINDS THAT THE DEFENDANT HAS WILLFULLY FAILED TO OBEY
   22  SUCH ORDER OF PROTECTION ON MORE THAN  ONE  OCCASION  AND  THIS  WILLFUL
   23  FAILURE  CONSISTED OF COMMITTING A FAMILY OFFENSE AS DEFINED IN SUBDIVI-
   24  SION ONE OF SECTION 530.12 OF THIS ARTICLE OR SUBDIVISION ONE OF SECTION
   25  EIGHT HUNDRED TWELVE OF THE FAMILY COURT ACT,  THE  COURT  SHALL  COMMIT
   26  SUCH  PERSON  TO  A  TERM  OF IMPRISONMENT OF NOT LESS THAN THIRTY DAYS,
   27  WHICH MAY BE SERVED UPON CERTAIN SPECIFIED DAYS OR PARTS OF DAYS AS  THE
   28  COURT MAY DIRECT.
   29    S 6. This act shall take effect on the first of November next succeed-
   30  ing the date on which it shall have become a law.