2006 New York Code - Procedures For Family Offense Proceedings.

 
    §  812.  Procedures  for  family offense proceedings. 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  article,
  "disorderly  conduct" includes disorderly conduct not in a public place.
  For purposes of this article, "members of the same family or  household"
  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  persons,  including,  but
  not  limited  to  district  attorneys, criminal and family court clerks,
  corporation counsels, county attorneys, victims assistance  unit  staff,
  probation  officers,  warrant officers, sheriffs, police officers or any
  other law enforcement officials, to inform any petitioner or complainant
  bringing a proceeding under this  article,  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  the  family
  disruption   and   obtain   protection.  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; provided, however, that the arrest  of  an
  alleged  offender  shall  be  made  under the circumstances described in
  subdivision four of section 140.10 of the criminal procedure law;
    (g) That 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.
    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.  Official  forms.  The  chief  administrator  of  the  courts shall
  prescribe an appropriate form  to  implement  subdivision  two  of  this
  section.
    5.  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 available
  in  English and Spanish 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 arrangement 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  the  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  family  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.