2006 New York Code - Protection For Victims Of Family Offenses.

 
  § 530.12 Protection for victims of family offenses.
    1.  When  a  criminal action is pending involving a complaint charging
  any crime or violation  between  spouses,  former  spouses,  parent  and
  child, or between members of the same family or household, as members of
  the  same  family or household are defined in subdivision one of section
  530.11 of this article, the court,  in  addition  to  any  other  powers
  conferred  upon  it  by  this  chapter  may  issue  a temporary order of
  protection as a condition of any order of recognizance  or  bail  or  an
  adjournment  in  contemplation  of  dismissal.  In addition to any other
  conditions, such an order may require the defendant:
    (a) to  stay  away  from  the  home,  school,  business  or  place  of
  employment  of  the  family  or  household  member  or of any designated
  witness, provided that the court shall make a determination,  and  shall
  state such determination in a written decision or on the record, whether
  to  impose  a  condition  pursuant  to this paragraph, provided further,
  however, that failure to make such a determination shall not affect  the
  validity   of  such  temporary  order  of  protection.  In  making  such
  determination, the court shall consider, but shall  not  be  limited  to
  consideration of, whether the temporary order of protection is likely to
  achieve  its purpose in the absence of such a condition, conduct subject
  to prior orders of protection, prior incidents of abuse, past or present
  injury, threats, drug or alcohol abuse, and access to weapons;
    (b) to permit a parent, or a person entitled to visitation by a  court
  order or a separation agreement, to visit the child at stated periods;
    (c)  to  refrain  from  committing  a  family  offense,  as defined in
  subdivision one of section 530.11  of  this  article,  or  any  criminal
  offense  against  the child or against the family or household member or
  against any person to whom custody of the  child  is  awarded,  or  from
  harassing, intimidating or threatening such persons;
    (d)  to  refrain  from  acts  of commission or omission that create an
  unreasonable risk to the health, safety and welfare of a  child,  family
  or household member's life or health;
    (e)  to  permit  a  designated  party  to enter the residence during a
  specified period of time in order to remove personal belongings  not  in
  issue in this proceeding or in any other proceeding or action under this
  chapter, the family court act or the domestic relations law.
    2.  Notwithstanding  any  other provision of law, a temporary order of
  protection issued or continued by a family  court  pursuant  to  section
  eight hundred thirteen of the family court act shall continue in effect,
  absent  action by the appropriate criminal court pursuant to subdivision
  three of  this  section,  until  the  defendant  is  arraigned  upon  an
  accusatory  instrument  filed pursuant to section eight hundred thirteen
  of the family court act in such criminal court.
    3. The court may issue a temporary order of protection ex  parte  upon
  the  filing of an accusatory instrument and for good cause shown. When a
  family court order of protection is modified, the criminal  court  shall
  forward  a  copy  of such modified order to the family court issuing the
  original order of protection; provided, however, that where  a  copy  of
  the  modified  order  is transmitted to the family court by facsimile or
  other electronic means, the original copy of  such  modified  order  and
  accompanying affidavit shall be forwarded immediately thereafter.
    3-a.  Emergency  powers  when family court not in session; issuance of
  temporary orders of protection. Upon the request of  the  petitioner,  a
  local criminal court may on an ex parte basis issue a temporary order of
  protection  pending  a  hearing  in  family court, provided that a sworn
  affidavit, verified in accordance with subdivision one of section 100.30
  of this chapter, is submitted: (i) alleging that the family court is not
  in  session;  (ii)  alleging  that  a  family  offense,  as  defined  in
  subdivision  one of section eight hundred twelve of the family court act
  and subdivision  one  of  section  530.11  of  this  article,  has  been
  committed;  (iii) alleging that a family offense petition has been filed
  or  will  be  filed  in  family  court  on  the next day the court is in
  session; and (iv)  showing  good  cause.  Upon  appearance  in  a  local
  criminal  court,  the  petitioner  shall  be  advised that he or she may
  continue with the proceeding either in family court or upon  the  filing
  of  a  local  criminal  court accusatory instrument in criminal court or
  both. Upon issuance of a temporary order of protection where  petitioner
  requests that it be returnable in family court, the local criminal court
  shall  transfer  the matter forthwith to the family court and shall make
  the matter returnable in family court on the next day the  family  court
  is  in  session,  or  as soon thereafter as practicable, but in no event
  more than four calendar days after issuance  of  the  order.  The  local
  criminal  court, upon issuing a temporary order of protection returnable
  in family court pursuant to this subdivision, shall immediately forward,
  in a manner designed to insure arrival before the return date set in the
  order, a copy of the temporary order of protection and  sworn  affidavit
  to  the family court and shall provide a copy of such temporary order of
  protection to the petitioner; provided, however, that where  a  copy  of
  the  temporary  order of protection and affidavit are transmitted to the
  family court by facsimile or other electronic means, the original  order
  and  affidavit  shall  be  forwarded  to  the  family  court immediately
  thereafter. Any temporary order of protection issued  pursuant  to  this
  subdivision shall be issued to the respondent, and copies shall be filed
  as  required in subdivisions six and eight of this section for orders of
  protection issued pursuant to  this  section.  Any  temporary  order  of
  protection  issued  pursuant to this subdivision shall plainly state the
  date that such order expires which, in the case of an  order  returnable
  in  family  court,  shall  be not more than four calendar days after its
  issuance, unless sooner vacated or  modified  by  the  family  court.  A
  petitioner  requesting  a  temporary  order  of protection returnable in
  family court pursuant to this subdivision in a case in  which  a  family
  court  petition has not been filed shall be informed that such temporary
  order of protection shall expire as  provided  for  herein,  unless  the
  petitioner files a petition pursuant to subdivision one of section eight
  hundred  twenty-one of the family court act on or before the return date
  in family court and  the  family  court  issues  a  temporary  order  of
  protection  or  order of protection as authorized under article eight of
  the family court  act.  Nothing  in  this  subdivision  shall  limit  or
  restrict  the  petitioner's  right 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.
    3-b. Emergency powers when family court not in session;  modifications
  of  orders  of  protection  or  temporary orders of protection. Upon the
  request of the petitioner, a local criminal court may  on  an  ex  parte
  basis  modify  a  temporary  order  of protection or order of protection
  which has been issued under article four, five,  six  or  eight  of  the
  family  court  act  pending  a  hearing in family court, provided that a
  sworn affidavit verified in accordance with subdivision one  of  section
  100.30  of this chapter is submitted: (i) alleging that the family court
  is not in session and (ii) showing good cause, including a showing  that
  the existing order is insufficient for the purposes of protection of the
  petitioner,  the  petitioner's child or children or other members of the
  petitioner's family or household. The local criminal  court  shall  make
  the  matter regarding the modification of the order returnable in family
  court on the next day the  family  court  is  in  session,  or  as  soon
  thereafter  as practicable, but in no event more than four calendar days
  after issuance of  the  modified  order.  The  court  shall  immediately
  forward a copy of the modified order, if any, and sworn affidavit to the
  family  court  and  shall provide a copy of such modified order, if any,
  and affidavit to the petitioner; provided, however, that where copies of
  such modified order and affidavit are transmitted to the family court by
  facsimile or  other  electronic  means,  the  original  copies  of  such
  modified  order  and  affidavit  shall  be forwarded to the family court
  immediately thereafter. Any modified temporary order  of  protection  or
  order  of protection issued pursuant to this subdivision shall be issued
  to the respondent and copies shall be filed as required in  subdivisions
  six  and  eight of this section for orders of protection issued pursuant
  to this section.
    4. The court may issue or extend a temporary order  of  protection  ex
  parte or on notice simultaneously with the issuance of a warrant for the
  arrest  of defendant. Such temporary order of protection may continue in
  effect until  the  day  the  defendant  subsequently  appears  in  court
  pursuant to such warrant or voluntarily or otherwise.
    5. * Upon conviction of any crime or violation between spouses, parent
  and child, or between members of the same family or household, the court
  may  in  addition  to  any  other  disposition,  including a conditional
  discharge  or  youthful  offender  adjudication,  enter  an   order   of
  protection.  Where a temporary order of protection was issued, the court
  shall state on the record the reasons for  issuing  or  not  issuing  an
  order of protection. The duration of such an order shall be fixed by the
  court  and,  in  the  case  of a felony conviction, shall not exceed the
  greater of: (i) five years from the date of  such  conviction,  or  (ii)
  three  years  from  the date of the expiration of the maximum term of an
  indeterminate or the term of  a  determinate  sentence  of  imprisonment
  actually  imposed;  or  in  the  case  of  a  conviction  for  a class A
  misdemeanor, shall  not  exceed  three  years  from  the  date  of  such
  conviction;  or in the case of a conviction for any other offense, shall
  not exceed one year  from  the  date  of  conviction.  For  purposes  of
  determining  the  duration of an order of protection entered pursuant to
  this subdivision, a conviction shall be deemed to include  a  conviction
  that  has been replaced by a youthful offender adjudication. In addition
  to any other conditions, such an order may require the defendant:
    * NB Effective until September 1, 2009
    * Upon conviction of any crime or violation  between  spouses,  parent
  and child, or between members of the same family or household, the court
  may  in  addition  to  any  other  disposition,  including a conditional
  discharge  or  youthful  offender  adjudication,  enter  an   order   of
  protection.  Where a temporary order of protection was issued, the court
  shall state on the record the reasons for  issuing  or  not  issuing  an
  order  of  protection.   The duration of such an order shall be fixed by
  the court and, in the case of a felony conviction, shall not exceed  the
  greater  of:  (i)  five  years from the date of such conviction, or (ii)
  three years from the date of the expiration of the maximum  term  of  an
  indeterminate  sentence of imprisonment actually imposed; or in the case
  of a conviction for a class A misdemeanor, shall not exceed three  years
  from the date of such conviction; or in the case of a conviction for any
  other  offense,  shall  not exceed one year from the date of conviction.
  For purposes of determining the  duration  of  an  order  of  protection
  entered  pursuant  to  this subdivision, a conviction shall be deemed to
  include a conviction that has  been  replaced  by  a  youthful  offender
  adjudication.  In  addition  to  any other conditions, such an order may
  require the defendant:
    * NB Effective September 1, 2009
    (a) to  stay  away  from  the  home,  school,  business  or  place  of
  employment  of  the  family or household member, the other spouse or the
  child, or of any witness designated by  the  court,  provided  that  the
  court  shall make a determination, and shall state such determination in
  a  written  decision  or  on  the  record, whether to impose a condition
  pursuant to this paragraph, provided further, however, that  failure  to
  make such a determination shall not affect the validity of such order of
  protection.  In making such determination, the court shall consider, but
  shall  not  be  limited  to  consideration  of,  whether  the  order  of
  protection is likely to achieve its purpose in the  absence  of  such  a
  condition,   conduct  subject  to  prior  orders  of  protection,  prior
  incidents of abuse, extent of past or present injury, threats,  drug  or
  alcohol abuse, and access to weapons;
    (b)  to permit a parent, or a person entitled to visitation by a court
  order or a separation agreement, to visit the child at stated periods;
    (c) to refrain  from  committing  a  family  offense,  as  defined  in
  subdivision  one  of  section  530.11  of  this article, or any criminal
  offense against the child or against the family or household  member  or
  against  any  person  to  whom  custody of the child is awarded, or from
  harassing, intimidating or threatening such persons; or
    (d) to refrain from acts of commission  or  omission  that  create  an
  unreasonable  risk  to the health, safety and welfare of a child, family
  or household member's life or health;
    (e) to permit a designated party  to  enter  the  residence  during  a
  specified  period  of time in order to remove personal belongings not in
  issue in this proceeding or in any other proceeding or action under this
  chapter, the family court act or the domestic relations law.
    6. An order of protection or a temporary order  of  protection  issued
  pursuant  to  subdivision  one, two, three, four or five of this section
  shall bear in a conspicuous manner the term  "order  of  protection"  or
  "temporary  order  of protection" as the case may be and a copy shall be
  filed by the clerk of the court with the sheriff's office in the  county
  in  which the complainant resides, or, if the complainant resides within
  a city, with the police department of such city.  The  absence  of  such
  language  shall  not  affect  the validity of such order. A copy of such
  order of protection or temporary order of protection may  from  time  to
  time be filed by the clerk of the court with any other police department
  or  sheriff's  office  having jurisdiction of the residence, work place,
  and school of anyone intended to be protected by such order. A  copy  of
  the order may also be filed by the complainant at the appropriate police
  department  or  sheriff's  office  having  jurisdiction.  Any subsequent
  amendment or revocation of such order shall be filed in the same  manner
  as herein provided.
    Such  order of protection shall plainly state the date that such order
  expires.
    6-a. The court shall inquire as to the existence of any  other  orders
  of  protection  between the defendant and the person or persons for whom
  the order of protection is sought.
    7. A family offense subject to the provisions of  this  section  which
  occurs  subsequent  to the issuance of an order of protection under this
  chapter shall be deemed a new offense for which the complainant may seek
  to file a new accusatory instrument and may file a family court petition
  under article eight of the family court act as provided for  in  section
  100.07 of this chapter.
    8.  In  any  proceeding  in  which an order of protection or temporary
  order of protection or a warrant has been issued under this section, the
  clerk of the court shall issue to  the  complainant  and  defendant  and
  defense  counsel and to any other person affected by the order a copy of
  the  order  of  protection  or  temporary  order  of   protection.   The
  presentation  of  a copy of such order or a warrant to any peace officer
  acting pursuant to his special duties or police officer shall constitute
  authority  for him to arrest a person who has violated the terms of such
  order and bring such person before the court and, otherwise, so  far  as
  lies  within his power, to aid in securing the protection such order was
  intended to afford.
    9. If no warrant, order or temporary  order  of  protection  has  been
  issued  by  the  court,  and  an  act  alleged to be a family offense as
  defined in section 530.11 of this chapter is the basis  of  the  arrest,
  the  magistrate  shall  permit  the  complainant  to  file  a  petition,
  information or accusatory instrument and  for  reasonable  cause  shown,
  shall  thereupon  hold  such  respondent  or defendant, admit to, fix or
  accept bail, or parole him  for  hearing  before  the  family  court  or
  appropriate criminal court as the complainant shall choose in accordance
  with the provisions of section 530.11 of this chapter.
    10.  Punishment  for  contempt  based  on  a  violation of an order of
  protection or  temporary  order  of  protection  shall  not  affect  the
  original  criminal  action,  nor  reduce  or  diminish  a  sentence upon
  conviction for the original crime or violation alleged therein or for  a
  lesser included offense thereof.
    11. If a defendant is brought before the court for failure to obey any
  lawful order issued under this section, or an order of protection issued
  by  a  court  of competent jurisdiction in another state, territorial or
  tribal jurisdiction, and if, after hearing, the court  is  satisfied  by
  competent proof that the defendant has willfully failed to obey any such
  order, the court may:
    (a)  revoke  an  order  of  recognizance or revoke an order of bail or
  order forfeiture of such bail and commit the defendant to custody; or
    (b)  restore  the  case  to  the  calendar  when  there  has  been  an
  adjournment  in  contemplation  of dismissal and commit the defendant to
  custody; or
    (c) revoke a conditional discharge in accordance with  section  410.70
  of this chapter and impose probation supervision or impose a sentence of
  imprisonment  in  accordance  with  the  penal law based on the original
  conviction; or
    (d) revoke probation in accordance with section 410.70 of this chapter
  and impose a sentence of imprisonment in accordance with the  penal  law
  based  on  the  original  conviction.  In  addition,  if  the  act which
  constitutes the violation of the order of protection or temporary  order
  of  protection  is  a  crime or a violation the defendant may be charged
  with and tried for that crime or violation.
    12. The chief administrator of the courts shall promulgate appropriate
  uniform temporary orders of protection and orders of protection forms to
  be used throughout the  state.  Such  forms  shall  be  promulgated  and
  developed in a manner to ensure the compatability of such forms with the
  statewide  computerized  registry  established  pursuant  to section two
  hundred twenty-one-a of the executive law.
    13. Notwithstanding the foregoing provisions, an order of  protection,
  or temporary order of protection when applicable, may be entered against
  a  former  spouse  and  persons  who  have a child in common, regardless
  whether such persons have been married or have  lived  together  at  any
  time.
    14. The people shall make reasonable efforts to notify the complainant
  alleging  a  crime  constituting  a  family offense when the people have
  decided to decline prosecution of such crime, to  dismiss  the  criminal
  charges  against  the  defendant  or to enter into a plea agreement. The
  people shall advise the complainant of the right to file a  petition  in
  the  family court pursuant to section 100.07 of this chapter and section
  one hundred fifteen of the family court act.
    In any case where allegations of criminal conduct are transferred from
  the  family  court  to  the criminal court pursuant to paragraph (ii) of
  subdivision (b) of section eight hundred forty-six of the  family  court
  act, the people shall advise the family court making the transfer of any
  decision  to  file  an  accusatory  instrument  against the family court
  respondent and shall notify  such  court  of  the  disposition  of  such
  instrument and the sentence, if any, imposed upon such respondent.
    Release  of  a  defendant from custody shall not be delayed because of
  the requirements of this subdivision.
    15. Any motion to vacate or modify an order of protection or temporary
  order of protection shall be on notice to the non-moving  party,  except
  as provided in subdivision three-b of this section.