STATE OF NEW YORK ________________________________________________________________________ 4249 2023-2024 Regular Sessions IN ASSEMBLY February 13, 2023 ___________ Introduced by M. of A. MIKULIN -- read once and referred to the Commit- tee on Judiciary 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 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 one occasion, and 20 this violation consisted of committing a family offense as defined in 21 subdivision one of section eight hundred twelve of the family court act 22 or subdivision one of section 530.11 of the criminal procedure law, the 23 court shall commit such person to a term of imprisonment of no less than 24 five days, which may be served upon certain specified days or parts of EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01806-01-3
A. 4249 2 1 days as the court may direct. If the person so violating the order has 2 been found to have violated such order on two occasions, and this 3 violation consisted of committing a family offense as defined in subdi- 4 vision one of section eight hundred twelve of the family court act or 5 subdivision one of section 530.11 of the criminal procedure law, the 6 court shall commit such person to a term of imprisonment of no less than 7 fifteen days, which may be served upon certain specified days or parts 8 of days as the court may direct. If the person so violating the order 9 has been found to have violated such order on three or more occasions, 10 and this violation consisted of committing a family offense as defined 11 in subdivision one of section eight hundred twelve of the family court 12 act or subdivision one of section 530.11 of the criminal procedure law, 13 the court shall commit such person to a term of imprisonment of no less 14 than thirty days, which may be served upon certain specified days or 15 parts of days as the court may direct. 16 § 2. Subdivision 9 of section 252 of the domestic relations law, as 17 amended by chapter 1 of the laws of 2013, is amended to read as follows: 18 9. Upon issuance of an order of protection or temporary order of 19 protection or upon a violation of such order, the court shall make a 20 determination regarding the suspension and revocation of a license to 21 carry, possess, repair or dispose of a firearm or firearms, ineligibil- 22 ity for such a license and the surrender of firearms in accordance with 23 sections eight hundred forty-two-a and eight hundred forty-six-a of the 24 family court act, as applicable. Upon issuance of an order of protection 25 pursuant to this section or upon a finding of a violation thereof, the 26 court also may direct payment of restitution in an amount not to exceed 27 ten thousand dollars in accordance with subdivision (e) of section eight 28 hundred forty-one of such act; provided, however, that in no case shall 29 an order of restitution be issued where the court determines that the 30 party against whom the order would be issued has already compensated the 31 injured party or where such compensation is incorporated in a final 32 judgment or settlement of the action. If the person so violating the 33 order has been found to have violated such order on one occasion, and 34 this violation consisted of committing a family offense as defined in 35 subdivision one of section eight hundred twelve of the family court act 36 or subdivision one of section 530.11 of the criminal procedure law, the 37 court shall commit such person to a term of imprisonment of no less than 38 five days, which may be served upon certain specified days or parts of 39 days as the court may direct. If the person so violating the order has 40 been found to have violated such order on two occasions, and this 41 violation consisted of committing a family offense as defined in subdi- 42 vision one of section eight hundred twelve of the family court act or 43 subdivision one of section 530.11 of the criminal procedure law, the 44 court shall commit such person to a term of imprisonment of no less than 45 fifteen days, which may be served upon certain specified days or parts 46 of days as the court may direct. If the person so violating the order 47 has been found to have violated such order on three or more occasions, 48 and this violation consisted of committing a family offense as defined 49 in subdivision one of section eight hundred twelve of the family court 50 act or subdivision one of section 530.11 of the criminal procedure law, 51 the court shall commit such person to a term of imprisonment of no less 52 than thirty days, which may be served upon certain specified days or 53 parts of days as the court may direct. 54 § 3. Section 846-a of the family court act, as amended by chapter 1 of 55 the laws of 2013, is amended to read as follows:
A. 4249 3 1 § 846-a. Powers on failure to obey order. If a respondent is brought 2 before the court for failure to obey any lawful order issued under this 3 article or an order of protection or temporary order of protection 4 issued pursuant to this act or issued by a court of competent jurisdic- 5 tion of another state, territorial or tribal jurisdiction and if, after 6 hearing, the court is satisfied by competent proof that the respondent 7 has willfully failed to obey any such order, the court may modify an 8 existing order or temporary order of protection to add reasonable condi- 9 tions of behavior to the existing order, make a new order of protection 10 in accordance with section eight hundred forty-two of this part, may 11 order the forfeiture of bail in a manner consistent with article five 12 hundred forty of the criminal procedure law if bail has been ordered 13 pursuant to this act, may order the respondent to pay the petitioner's 14 reasonable and necessary counsel fees in connection with the violation 15 petition where the court finds that the violation of its order was will- 16 ful, and may commit the respondent to jail for a term not to exceed six 17 months. If the respondent has been found by competent proof to have 18 willfully failed to obey such order of protection on one occasion, and 19 this willful failure consisted of committing a family offense as defined 20 in subdivision one of section eight hundred twelve of this article or 21 subdivision one of section 530.11 of the criminal procedure law, the 22 court shall commit such person to a term of imprisonment of no less than 23 five days. If the respondent has been found by competent proof to have 24 willfully failed to obey such order of protection on two occasions, and 25 this willful failure consisted of committing a family offense as defined 26 in subdivision one of section eight hundred twelve of this article or 27 subdivision one of section 530.11 of the criminal procedure law, the 28 court shall commit such person to a term of imprisonment of no less than 29 fifteen days. If the respondent has been found by competent proof to 30 have willfully failed to obey such order of protection on three or more 31 occasions, and this willful failure consisted of committing a family 32 offense as defined in subdivision one of section eight hundred twelve of 33 this article or subdivision one of section 530.11 of the criminal proce- 34 dure law, the court shall commit such person to a term of imprisonment 35 of no less than thirty days. Such commitment may be served upon certain 36 specified days or parts of days as the court may direct, and the court 37 may, at any time within the term of such sentence, revoke such suspen- 38 sion and commit the respondent for the remainder of the original 39 sentence, or suspend the remainder of such sentence. If the court deter- 40 mines that the willful failure to obey such order involves violent 41 behavior constituting the crimes of menacing, reckless endangerment, 42 assault or attempted assault and if such a respondent is licensed to 43 carry, possess, repair and dispose of firearms pursuant to section 44 400.00 of the penal law, the court may also immediately revoke such 45 license and may arrange for the immediate surrender pursuant to subpara- 46 graph (f) of paragraph one of subdivision a of section 265.20 and subdi- 47 vision six of section 400.05 of the penal law, and disposal of any 48 firearm such respondent owns or possesses. If the willful failure to 49 obey such order involves the infliction of physical injury as defined in 50 subdivision nine of section 10.00 of the penal law or the use or threat- 51 ened use of a deadly weapon or dangerous instrument, as those terms are 52 defined in subdivisions twelve and thirteen of section 10.00 of the 53 penal law, such revocation and immediate surrender pursuant to subpara- 54 graph (f) of paragraph one of subdivision a of section 265.20 and subdi- 55 vision six of section 400.05 of the penal law [six] and disposal of any
A. 4249 4 1 firearm owned or possessed by respondent shall be mandatory, pursuant to 2 subdivision eleven of section 400.00 of the penal law. 3 § 4. Subdivision 11 of section 530.12 of the criminal procedure law, 4 as amended by section 15 of part JJJ of chapter 59 of the laws of 2019, 5 is amended to read as follows: 6 11. If a defendant is brought before the court for failure to obey any 7 lawful order issued under this section, or an order of protection issued 8 by a court of competent jurisdiction in another state, territorial or 9 tribal jurisdiction, and if, after hearing, the court is satisfied by 10 competent proof that the defendant has willfully failed to obey any such 11 order, (a) the court may: 12 [(a)] (i) revoke an order of recognizance or release under non-mone- 13 tary conditions or revoke an order of bail or order forfeiture of such 14 bail and commit the defendant to custody; or 15 [(b)] (ii) restore the case to the calendar when there has been an 16 adjournment in contemplation of dismissal and commit the defendant to 17 custody; or 18 [(c)] (iii) revoke a conditional discharge in accordance with section 19 410.70 of this chapter and impose probation supervision or impose a 20 sentence of imprisonment in accordance with the penal law based on the 21 original conviction; or 22 [(d)] (iv) revoke probation in accordance with section 410.70 of this 23 chapter and impose a sentence of imprisonment in accordance with the 24 penal law based on the original conviction. In addition, if the act 25 which constitutes the violation of the order of protection or temporary 26 order of protection is a crime or a violation the defendant may be 27 charged with and tried for that crime or violation; and 28 (b) if the court finds that the defendant has willfully failed to obey 29 such order of protection on one occasion, and this willful failure 30 consisted of committing a family offense as defined in subdivision one 31 of this section or subdivision one of section eight hundred twelve of 32 the family court act, the court shall commit such person to a term of 33 imprisonment of no less than five days, which may be served upon certain 34 specified days or parts of days as the court may direct. If the court 35 finds that the defendant has willfully failed to obey such order of 36 protection on two occasions, and this willful failure consisted of 37 committing a family offense as defined in subdivision one of this 38 section or subdivision one of section eight hundred twelve of the family 39 court act, the court shall commit such person to a term of imprisonment 40 of no less than fifteen days, which may be served upon certain specified 41 days or parts of days as the court may direct. If the court finds that 42 the defendant has willfully failed to obey such order of protection on 43 three or more occasions, and this willful failure consisted of commit- 44 ting a family offense as defined in subdivision one of this section or 45 subdivision one of section eight hundred twelve of the family court act, 46 the court shall commit such person to a term of imprisonment of no less 47 than thirty days, which may be served upon certain specified days or 48 parts of days as the court may direct. 49 § 5. Subdivision 8 of section 530.13 of the criminal procedure law, as 50 added by chapter 388 of the laws of 1984, paragraph (a) as amended by 51 section 13 of part JJJ of chapter 59 of the laws of 2019, is amended to 52 read as follows: 53 8. If a defendant is brought before the court for failure to obey any 54 lawful order issued under this section and if, after hearing, the court 55 is satisfied by competent proof that the defendant has willfully failed 56 to obey any such order, (a) the court may:
A. 4249 5 1 [(a)] (i) revoke an order of recognizance, release under non-monetary 2 conditions or bail and commit the defendant to custody; or 3 [(b)] (ii) restore the case to the calendar when there has been an 4 adjournment in contemplation of dismissal and commit the defendant to 5 custody or impose or increase bail pending a trial of the original crime 6 or violation; or 7 [(c)] (iii) revoke a conditional discharge in accordance with section 8 410.70 of this chapter and impose probation supervision or impose a 9 sentence of imprisonment in accordance with the penal law based on the 10 original conviction; or 11 [(d)] (iv) revoke probation in accordance with section 410.70 of this 12 chapter and impose a sentence of imprisonment in accordance with the 13 penal law based on the original conviction. In addition, if the act 14 which constitutes the violation of the order of protection or temporary 15 order of protection is a crime or a violation the defendant may be 16 charged with and tried for that crime or violation; and 17 (b) if the court finds that the defendant has willfully failed to obey 18 such order of protection on one occasion, and this willful failure 19 consisted of committing a family offense as defined in subdivision one 20 of section 530.11 of this article or subdivision one of section eight 21 hundred twelve of the family court act, the court shall commit such 22 person to a term of imprisonment of no less than five days, which may be 23 served upon certain specified days or parts of days as the court may 24 direct. If the court finds that the defendant has willfully failed to 25 obey such order of protection on two occasions, and this willful failure 26 consisted of committing a family offense as defined in subdivision one 27 of section 530.11 of this article or subdivision one of section eight 28 hundred twelve of the family court act, the court shall commit such 29 person to a term of imprisonment of no less than fifteen days, which may 30 be served upon certain specified days or parts of days as the court may 31 direct. If the court finds that the defendant has willfully failed to 32 obey such order of protection on three or more occasions, and this will- 33 ful failure consisted of committing a family offense as defined in 34 subdivision one of section 530.11 of this article or subdivision one of 35 section eight hundred twelve of the family court act, the court shall 36 commit such person to a term of imprisonment of no less than thirty 37 days, which may be served upon certain specified days or parts of days 38 as the court may direct. 39 § 6. This act shall take effect on the first of November next succeed- 40 ing the date on which it shall have become a law.