2006 New York Code - Procedures For Family Offense Matters.

 
  § 530.11 Procedures for family offense matters.
    1.  Jurisdiction.  The family court and the criminal courts shall have
  concurrent jurisdiction 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,  stalking  in  the  first degree, stalking in the second degree,
  stalking in the third degree, stalking in the fourth degree, menacing in
  the second degree, menacing in the third degree, reckless  endangerment,
  assault  in  the  second  degree,  assault  in  the  third  degree or an
  attempted assault 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:
    (a) persons related by consanguinity or affinity;
    (b) persons legally married to one another;
    (c) persons formerly married to one another; and
    (d) persons who have  a  child  in  common,  regardless  whether  such
  persons have been married or have lived together at any time.
    2.  Information  to petitioner or complainant. The chief administrator
  of the  courts  shall  designate  the  appropriate  probation  officers,
  warrant  officers,  sheriffs, police officers, district attorneys or any
  other law enforcement officials, to inform any petitioner or complainant
  bringing a proceeding under  this  section  before  such  proceeding  is
  commenced,  of  the  procedures  available for the institution of family
  offense proceedings, including but not limited to the following:
    (a) That there is  concurrent  jurisdiction  with  respect  to  family
  offenses in both family court and the criminal courts;
    (b)  That  a  family court proceeding is a civil proceeding and is for
  the purpose of attempting to stop the violence,  end  family  disruption
  and  obtain  protection.  That  referrals  for counseling, or counseling
  services, are available through probation for this purpose;
    (c) That a proceeding in the criminal courts is  for  the  purpose  of
  prosecution  of  the offender and can result in a criminal conviction of
  the offender;
    (d) That a proceeding or action subject  to  the  provisions  of  this
  section  is  initiated  at  the  time  of  the  filing  of an accusatory
  instrument or family court petition, not  at  the  time  of  arrest,  or
  request for arrest, if any;
    (f) That an arrest may precede the commencement of a family court or a
  criminal  court  proceeding,  but  an  arrest  is  not a requirement for
  commencing either proceeding.
    (h) At such time as the complainant first appears before the court  on
  a  complaint or information, the court shall advise the complainant that
  the complainant may: continue with the proceeding in criminal court;  or
  have   the  allegations  contained  therein  heard  in  a  family  court
  proceeding; or proceed concurrently in both criminal and  family  court.
  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;
    (i) Nothing herein shall be deemed to limit or restrict  complainant's
  rights  to  proceed  directly  and  without  court  referral in either a
  criminal or family court, or  both,  as  provided  for  in  section  one
  hundred  fifteen  of  the  family  court  act and section 100.07 of this
  chapter;
    2-a.  Upon  the filing of an accusatory instrument charging a crime or
  violation described in subdivision one of this section  between  members
  of  the  same  family  or  household,  as such terms are defined in this
  section, or as soon as the complainant first appears before  the  court,
  whichever is sooner, the court shall advise the complainant of the right
  to  proceed  in both the criminal and family courts, pursuant to section
  100.07 of this chapter.
    3. Official responsibility.  No official or  other  person  designated
  pursuant  to subdivision two of this section shall discourage or prevent
  any person who wishes to file a petition or sign a complaint from having
  access to any court for that purpose.
    4. When a person is arrested for  an  alleged  family  offense  or  an
  alleged  violation  of  an  order  of  protection  or temporary order of
  protection or arrested pursuant to a warrant issued by  the  supreme  or
  family  court, and the supreme or family court, as applicable, is not in
  session, such person shall be brought before a local criminal  court  in
  the  county  of  arrest  or  in  the  county  in  which  such warrant is
  returnable pursuant to article one hundred twenty of this chapter.  Such
  local  criminal  court  may issue any order authorized under subdivision
  eleven  of  section  530.12  of  this  article,  section   one   hundred
  fifty-four-d  or  one  hundred  fifty-five  of  the  family court act or
  subdivision three-b of section two hundred forty or subdivision two-a of
  section two hundred fifty-two of the domestic relations law, in addition
  to discharging other arraignment responsibilities as set forth  in  this
  chapter.  In  making such order, the local criminal court shall consider
  the bail recommendation, if any, made by the supreme or family court  as
  indicated   on  the  warrant  or  certificate  of  warrant.  Unless  the
  petitioner or complainant requests otherwise, the court, in addition  to
  scheduling  further criminal proceedings, if any, regarding such alleged
  family  offense  or  violation  allegation,  shall  make   such   matter
  returnable  in  the  supreme or family court, as applicable, on the next
  day such court is in session.
    5. Filing and enforcement of  out-of-state  orders  of  protection.  A
  valid  order  of protection or temporary order of protection issued by a
  court of competent jurisdiction in another state, territorial or  tribal
  jurisdiction  shall be accorded full faith and credit and enforced as if
  it were issued by a court within the state for  as  long  as  the  order
  remains  in  effect  in  the  issuing  jurisdiction  in  accordance with
  sections two thousand  two  hundred  sixty-five  and  two  thousand  two
  hundred sixty-six of title eighteen of the United States Code.
    (a)  An  order  issued by a court of competent jurisdiction in another
  state, territorial or tribal jurisdiction shall be deemed valid if:
    (i) the issuing court had personal jurisdiction over the  parties  and
  over the subject matter under the law of the issuing jurisdiction;
    (ii)  the  person  against  whom  the  order was issued had reasonable
  notice and an opportunity to be heard prior to issuance  of  the  order;
  provided, however, that if the order was a temporary order of protection
  issued  in  the  absence  of such person, that notice had been given and
  that an opportunity to be heard had been provided  within  a  reasonable
  period of time after the issuance of the order; and
    (iii)  in  the  case  of  orders  of protection or temporary orders of
  protection issued against both a petitioner,  plaintiff  or  complainant
  and  respondent  or defendant, the order or portion thereof sought to be
  enforced was  supported  by:  (A)  a  pleading  requesting  such  order,
  including,   but   not   limited   to,  a  petition,  cross-petition  or
  counterclaim; and (B) a judicial finding that the  requesting  party  is
  entitled  to  the issuance of the order which may result from a judicial
  finding of fact, judicial  acceptance  of  an  admission  by  the  party
  against  whom  the  order  was issued or judicial finding that the party
  against whom the order was issued had  given  knowing,  intelligent  and
  voluntary consent to its issuance.
    (b)  Notwithstanding the provisions of article fifty-four of the civil
  practice law and rules, an order of protection  or  temporary  order  of
  protection issued by a court of competent jurisdiction in another state,
  territorial  or  tribal  jurisdiction,  accompanied by a sworn affidavit
  that upon information and belief such order is in effect as written  and
  has  not  been  vacated  or  modified, may be filed without fee with the
  clerk of the court, who shall transmit information regarding such  order
  to   the  statewide  registry  of  orders  of  protection  and  warrants
  established  pursuant  to  section  two  hundred  twenty-one-a  of   the
  executive  law;  provided,  however, that such filing and registry entry
  shall not be required for enforcement of the order.
    6. Notice. Every police officer, peace officer  or  district  attorney
  investigating  a  family  offense  under  this  article shall advise the
  victim of the availability  of  a  shelter  or  other  services  in  the
  community,  and  shall immediately give the victim written notice of the
  legal rights and remedies available to a  victim  of  a  family  offense
  under  the relevant provisions of the criminal procedure law, the family
  court act and the domestic relations law. Such notice shall be  prepared
  in  Spanish and English and if necessary, shall be delivered orally, and
  shall include but not be limited to the following statement:
    "If you are the victim of domestic violence, you may request that  the
  officer  assist  in providing for your safety and that of your children,
  including providing information on how to obtain a  temporary  order  of
  protection.  You  may  also  request  that  the  officer  assist  you in
  obtaining your essential personal effects and locating and  taking  you,
  or  assist  in  making  arrangements to take you, and your children to a
  safe place within such officer's jurisdiction, including but not limited
  to a  domestic  violence  program,  a  family  member's  or  a  friend's
  residence, or a similar place of safety. When the officer's jurisdiction
  is  more  than  a  single county, you may ask the officer to take you or
  make arrangements to take you and your children to a place of safety  in
  the  county  where the incident occurred. If you or your children are in
  need of medical treatment, you  have  the  right  to  request  that  the
  officer  assist you in obtaining such medical treatment. You may request
  a copy of any incident reports at  no  cost  from  the  law  enforcement
  agency.  You  have  the right to seek legal counsel of your own choosing
  and if you proceed in family court and if  it  is  determined  that  you
  cannot  afford  an  attorney,  one  must  be  appointed to represent you
  without cost to you.
    You may ask the district attorney or a law enforcement officer to file
  a criminal complaint. You also have the right to file a petition in  the
  family  court  when a family offense has been committed against you. You
  have the right to have  your  petition  and  request  for  an  order  of
  protection  filed  on the same day you appear in court, and such request
  must be heard that same day or the next day court is in session.  Either
  court  may  issue  an  order  of  protection from conduct constituting a
  family offense which could include, among other provisions, an order for
  the respondent or defendant to stay away from you and your children. The
  family court may also order the payment of temporary child  support  and
  award  temporary custody of your children. If the family court is not in
  session, you may seek immediate assistance from the  criminal  court  in
  obtaining an order of protection.
    The forms you need to obtain an order of protection are available from
  the  family  court  and  the  local  criminal  court  (the addresses and
  telephone numbers shall be listed).  The  resources  available  in  this
  community  for  information  relating to domestic violence, treatment of
  injuries, and places of safety and shelters can be accessed  by  calling
  the  following  800  numbers (the statewide English and Spanish language
  800 numbers shall be listed  and  space  shall  be  provided  for  local
  domestic violence hotline telephone numbers).
    Filing  a  criminal  complaint  or  a family court petition containing
  allegations that are knowingly false is a crime."
    The division of criminal justice services  in  consultation  with  the
  state  office  for the prevention of domestic violence shall prepare the
  form of such written notice consistent with provisions of  this  section
  and  distribute  copies  thereof  to  the  appropriate  law  enforcement
  officials  pursuant  to  subdivision  nine  of  section  eight   hundred
  forty-one of the executive law.
    Additionally,  copies  of  such  notice shall be provided to the chief
  administrator of the courts to  be  distributed  to  victims  of  family
  offenses  through  the criminal court at such time as such persons first
  come before the  court  and  to  the  state  department  of  health  for
  distribution  to all hospitals defined under article twenty-eight of the
  public health law. No cause of action for damages shall arise  in  favor
  of  any person by reason of any failure to comply with the provisions of
  this subdivision except upon a showing of gross  negligence  or  willful
  misconduct.
    7.  Rules  of  court  regarding  concurrent  jurisdiction.  The  chief
  administrator of the courts, pursuant to paragraph  (e)  of  subdivision
  two of section two hundred twelve of the judiciary law, shall promulgate
  rules  to  facilitate record sharing and other communication between the
  criminal and family courts, subject to  applicable  provisions  of  this
  chapter  and  the  family  court  act pertaining to the confidentiality,
  expungement and sealing of records, when such courts exercise concurrent
  jurisdiction over family offense proceedings.