STATE OF NEW YORK ________________________________________________________________________ 9596 IN SENATE May 16, 2024 ___________ Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the civil practice law and rules, the penal law and the criminal procedure law, in relation to anti-stalking orders The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the "ceasing 2 repeated and extremely egregious predatory (CREEP) behavior act". 3 § 2. The civil practice law and rules is amended by adding a new arti- 4 cle 63-B to read as follows: 5 ARTICLE 63-B 6 ANTI-STALKING ORDERS 7 Section 6349. Definitions. 8 6350. Application for an anti-stalking order. 9 6351. Issuance of a temporary anti-stalking order. 10 6352. Issuance of a final anti-stalking order. 11 6353. Service of an anti-stalking order. 12 6354. Modification or vacation of an anti-stalking order. 13 6355. Translation and interpretation of an anti-stalking order. 14 6356. Enforcement. 15 6357. Filing and enforcement of out-of-state orders. 16 § 6349. Definitions. For the purposes of this article: 17 1. "Anti-stalking order" shall mean an order of protection, either 18 temporary or final, that entitles the petitioner to certain protections 19 prescribed in sections sixty-three hundred fifty-one or sixty-three 20 hundred fifty-two of this article. An anti-stalking order shall be a 21 form of an order of protection and the terms "anti-stalking order" and 22 "order of protection" may be used interchangeably throughout this arti- 23 cle. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15581-02-4
S. 9596 2 1 2. "Connected device" shall mean any device, or other physical object 2 that is capable of connecting to the internet, directly or indirectly, 3 and that is assigned an internet protocol address or bluetooth address. 4 3. "Course of conduct" shall mean two or more acts over a period of 5 time, however short, which evidence a continuity of purpose. A course of 6 conduct shall not include conduct that was necessary to accomplish a 7 legitimate purpose independent of making contact with the targeted 8 person. 9 4. "Respondent" shall mean the person against whom an anti-stalking 10 order may be sought under this article. 11 5. "Stalking" shall mean when the respondent purposely or knowingly 12 engages in a course of conduct targeted at the petitioner which would 13 constitute stalking in the first degree, as described in section 120.60 14 of the penal law, stalking in the second degree, as described in section 15 120.55 of the penal law, stalking in the third degree, as described in 16 section 120.50 of the penal law, stalking in the fourth degree, as 17 described in section 120.45 of the penal law, menacing in the first 18 degree, as described in section 120.13 of the penal law, menacing in the 19 second degree, as described in section 120.14 of the penal law, menacing 20 in the third degree, as described in section 120.15 of the penal law, 21 assault in the first degree, as described in section 120.10 of the penal 22 law, assault in the second degree, as described in section 120.05 of the 23 penal law, assault in the third degree, as described in section 120.00 24 of the penal law, an attempted assault, harassment in the first degree, 25 as described in section 240.25 of the penal law, harassment in the 26 second degree, as described in section 240.26 of the penal law, aggra- 27 vated harassment in the first degree, as described in section 240.31 of 28 the penal law, aggravated harassment in the second degree, as described 29 in section 240.30 of the penal law, unlawful dissemination or publica- 30 tion of an intimate image, as described in section 245.15 of the penal 31 law, reckless endangerment in the first degree, as described in section 32 120.25 of the penal law, reckless endangerment in the second degree, as 33 described in section 120.20 of the penal law, identity theft in the 34 first degree, as described in section 190.80 of the penal law, identity 35 theft in the second degree, as described in section 190.79 of the penal 36 law, identity theft in the third degree, as described in section 190.78 37 of the penal law, coercion in the first degree, as described in section 38 135.65 of the penal law, coercion in the second degree, as described in 39 section 135.61 of the penal law, and/or coercion in the third degree, as 40 described in section 135.60 of the penal law. 41 6. "Petitioner" shall mean the person seeking the anti-stalking order 42 under this article. 43 § 6350. Application for an anti-stalking order. In accordance with 44 this article, a petitioner who believes they have been subject to stalk- 45 ing by another individual may file a sworn application setting forth the 46 facts and circumstances justifying the issuance of an anti-stalking 47 order. Such application shall be filed in the supreme court in a county 48 of the petitioner's choosing. 49 § 6351. Issuance of a temporary anti-stalking order. 1. Upon applica- 50 tion of a petitioner pursuant to this article, the court may issue a 51 temporary anti-stalking order, ex parte or otherwise, upon a finding on 52 the record that the petitioner is entitled to issuance of such an order 53 which may result from a judicial finding of fact, judicial acceptance of 54 an admission by the respondent, or judicial finding that the respondent 55 has given knowing, intelligent, and voluntary consent to its issuance. 56 The provisions of this section shall not preclude the court from issuing
S. 9596 3 1 a temporary anti-stalking order upon the court's own motion or where a 2 motion for such relief is made to the court, for good cause shown. The 3 duration of any temporary anti-stalking order shall not by itself be a 4 factor in determining the length or issuance of any final anti-stalking 5 order. 6 2. Any person appearing at supreme court when the court is open 7 requesting a temporary anti-stalking order under this article shall be 8 entitled to file a petition without delay on the same day such person 9 first appears at the court, and a hearing on that request shall be held 10 on the same day or the next day that the court is open following the 11 filing of such petition. 12 3. A temporary anti-stalking order issued pursuant to this section may 13 require that the respondent: 14 (a) cease all contact, by electronic means, telephone, mail, or any 15 other means, with the petitioner and/or another person; 16 (b) remove or delete any texts, images, videos, or other pieces of 17 media relating to the petitioner; 18 (c) refrain from following, monitoring, or keeping the petitioner 19 under physical or electronic surveillance, or using telephonic, audi- 20 ovisual, or other electronic means to monitor the actions, location, or 21 communication of the petitioner and/or another person; 22 (d) refrain from remotely controlling any connected devices affecting 23 the home, vehicle, or property of the petitioner and/or another person; 24 and/or 25 (e) stay away from the home, school, business, motor vehicle, or place 26 of employment of the petitioner and/or any other person, or any other 27 specified location as designated by the court; 28 until the date of the hearing on a final anti-stalking order. Such 29 hearing shall be scheduled as soon as practicable after the issuance of 30 a temporary anti-stalking order pursuant to this section. Provided, 31 however, that any requirements in a temporary anti-stalking order 32 imposed on the respondent which involve a person other than the peti- 33 tioner may only be made if and to the extent that such requirements 34 further the purpose of protecting the petitioner. 35 4. The court shall notify the petitioner and respondent of the date, 36 time, and location of a hearing on a final anti-stalking order upon the 37 issuance of a temporary anti-stalking order. In the event that the court 38 fails to issue an anti-stalking order that has been sought by the peti- 39 tioner, the court shall notify such petitioner that such order is not 40 issued, a statement of the grounds for the failure to issue such order, 41 and the date, time, and location of a hearing on a final anti-stalking 42 order, which shall proceed unless the application for such order is 43 voluntarily withdrawn by the petitioner. 44 § 6352. Issuance of a final anti-stalking order. 1. In accordance with 45 this article, after the issuance of a temporary anti-stalking order or 46 after the issuance of a statement explaining the grounds for failure to 47 issue such temporary order, as prescribed in subdivision four of section 48 sixty-three hundred fifty-one of this article, the court shall hold a 49 hearing to determine whether to issue a final anti-stalking order. If 50 issued, such final anti-stalking order may require that the respondent: 51 (a) cease all contact, by electronic means, telephone, mail, or any 52 other means, with the petitioner and/or another person; 53 (b) remove or delete any texts, images, videos, or other pieces of 54 media relating to the petitioner; 55 (c) refrain from following, monitoring, or keeping the petitioner 56 under physical or electronic surveillance, or using telephonic, audi-
S. 9596 4 1 ovisual, or other electronic means to monitor the actions, location, or 2 communication of the petitioner and/or another person; 3 (d) refrain from remotely controlling any connected devices affecting 4 the home, vehicle or property of the petitioner and/or another person; 5 (e) stay away from the home, school, business, motor vehicle, or place 6 of employment of the petitioner and/or any other person, or any other 7 specified location as designated by the court; 8 (f) pay the reasonable counsel fees and disbursement involved in 9 obtaining or enforcing the anti-stalking order which the petitioner has 10 sought; 11 (g) provide, either directly or by means of medical and health insur- 12 ance, for expenses incurred for medical care and treatment arising from 13 the incident or incidents forming the basis for the issuance of the 14 anti-stalking order; 15 (h) provide monetary compensation for other losses suffered as a 16 direct result of the stalking, which may include but not be limited to 17 loss of earnings, out-of-pocket expenses for injuries sustained or prop- 18 erty damaged, costs of lock replacement, or costs of obtaining an unlim- 19 ited phone number; 20 (i) undergo a mental health evaluation and treatment; and/or 21 (j) engage or cease engaging in any other behavior which the court 22 determines will meet the objective of protecting the petitioner; 23 for a specified period of time as declared by the court. Provided, 24 however, that any requirements in a final anti-stalking order imposed on 25 the respondent which involve a person other than the petitioner may only 26 be made if and to the extent that such requirements further the purpose 27 of protecting the petitioner. 28 § 6353. Service of an anti-stalking order. 1. The court shall arrange 29 for prompt service of a copy of an anti-stalking order issued under this 30 article, the application therefor, any notice of hearing prepared by the 31 court, along with any associated papers including the petition and any 32 supporting documentation, provided that the court may redact identifying 33 information of the petitioner from such application and papers where the 34 court finds that disclosure of such information would pose an unreason- 35 able risk to the health or safety of the petitioner. 36 2. The court shall provide copies of such documents to the appropriate 37 law enforcement agency serving the jurisdiction of the respondent's 38 residence with a direction that such documents be promptly served, at no 39 cost to the petitioner, on the respondent; provided, however, that the 40 petitioner may voluntarily arrange for service of copies of such order 41 and associated papers through a third party, such as a licensed process 42 server. 43 3. Notwithstanding any provisions of section three hundred eight of 44 this chapter or any other law to the contrary, all anti-stalking orders 45 filed and entered along with associated papers may be transmitted via 46 electronic means for expedited service. 47 4. An anti-stalking order issued pursuant to this article shall bear 48 in a conspicuous manner the term "order of protection" or "temporary 49 order of protection" as the case may be and a copy shall be filed by the 50 clerk of the court with the sheriff's office in the county in which the 51 petitioner resides, or, if the petitioner resides within a city, with 52 the police department of such city. The anti-stalking order shall also 53 contain the following notice: "This order of protection will remain in 54 effect even if the protected party has, or consents to have, contact or 55 communication with the party against whom the order is issued. This 56 order of protection can only be modified or terminated by the court.
S. 9596 5 1 The protected party cannot be held to violate this order nor be arrested 2 for violating this order.". The absence of such language shall not 3 affect the validity of such order. Such anti-stalking order shall plain- 4 ly state the date that such order expires, if temporary, or, if the 5 order is a final anti-stalking order issued pursuant to section sixty- 6 three hundred fifty-two of this article, the length of such order. 7 5. The court shall notify the division of state police and any other 8 law enforcement agency with jurisdiction of the issuance of an anti- 9 stalking order and provide a copy of such order no later than the next 10 business day after issuing the order to such division and agency. The 11 court also shall promptly notify such division and agency and provide a 12 copy of any order modifying or vacating such anti-stalking order no 13 later than the next business day after issuing the order. Any notice or 14 report submitted pursuant to this subdivision shall be in an electronic 15 format. 16 § 6354. Modification or vacation of an anti-stalking order. 1. Upon 17 the request of the petitioner, a court may, on an ex parte basis or 18 otherwise, modify or vacate an anti-stalking order which has been issued 19 under this article, provided that a sworn affidavit, verified in 20 accordance with subdivision one of section 100.30 of the criminal 21 procedure law, is submitted, showing good cause, which may include in 22 the case of a modification a showing that the existing order is 23 insufficient for the purpose of protection of the petitioner. The 24 court shall provide a copy of such modified order and affidavit to the 25 petitioner. Any modified anti-stalking order issued pursuant to this 26 section shall be issued to the respondent, and copies shall be filed as 27 provided in subdivision five of section sixty-three hundred fifty-three 28 and subdivision three of section sixty-three hundred fifty-six of this 29 article for anti-stalking orders issued pursuant to this article. 30 § 6355. Translation and interpretation of an anti-stalking order. 1. 31 The office of court administration shall, in accordance with paragraph 32 (t) of subdivision two of section two hundred twelve of the judiciary 33 law, ensure that any anti-stalking order is translated in writing into 34 the appropriate language for a party to a proceeding where the court has 35 appointed an interpreter. The office of court administration shall 36 ensure that the standard language of the office of court administration 37 anti-stalking order forms shall be translated in writing into the 38 languages most frequently used in the courts of each judicial department 39 in accordance with paragraph (t) of subdivision two of section two 40 hundred twelve of the judiciary law. A copy of the written translation 41 shall be given to each party in the proceeding, along with the original 42 anti-stalking order issued in English. A copy of this written trans- 43 lation shall also be included as part of the record of the proceeding. 44 The court shall read the essential terms and conditions of the order 45 aloud on the record and direct the court appointed interpreter to inter- 46 pret the same terms and conditions. Such written translation or inter- 47 pretation shall not affect the validity or enforceability of the order. 48 In every case a party to a proceeding shall be provided with an English 49 copy of any anti-stalking order issued. 50 2. The chief administrator of the courts shall promulgate appropriate 51 uniform temporary anti-stalking order forms, applicable to proceedings 52 under this article, to be used throughout the state. 53 § 6356. Enforcement. 1. Any violations of an anti-stalking order 54 issued by a court under this article shall be subject to the penalties 55 of sections 120.14, 215.50, 215.51, and 215.52 of the penal law, as 56 prescribed by such sections.
S. 9596 6 1 2. Any anti-stalking order issued under this article is a mandate of 2 the court for purposes of the offense of criminal contempt in subdivi- 3 sion three of section 215.50 of the penal law. 4 3. In any proceeding in which an anti-stalking order has been issued 5 under this article, the clerk of the court shall issue to the petitioner 6 and respondent and respondent's counsel and to any other person affected 7 by the order a copy of the anti-stalking order and ensure that a copy of 8 the anti-stalking order be transmitted, if applicable, to the local 9 correctional facility where the individual is or will be detained, the 10 state or local correctional facility where the individual is or will be 11 imprisoned, and the supervising probation department or department of 12 corrections and community supervision where the individual is under 13 probation or parole supervision. The presentation of a copy of such 14 order to any peace officer acting pursuant to their special duties or 15 police officer shall constitute authority for them to arrest a person 16 who has violated the terms of such order and bring such person before 17 the court and, otherwise, so far as lies within their power, to aid in 18 securing the protection such order was intended to afford. The protected 19 party in whose favor the anti-stalking order is issued may not be held 20 to violate an order issued in their favor, nor may such protected party 21 be arrested for violating such order. 22 § 6357. Filing and enforcement of out-of-state orders. 1. A valid 23 order of protection or temporary order of protection that is substan- 24 tially similar to the anti-stalking order described in this article 25 which is issued by court of competent jurisdiction in another state, 26 territorial, or tribal jurisdiction shall be accorded full faith and 27 credit and enforced as if it were issued by a court within the state for 28 as long as the order remains in effect in the issuing jurisdiction in 29 accordance with sections two thousand two hundred sixty-five and two 30 thousand two hundred sixty-six of title eighteen of the United States 31 Code. 32 2. An order issued by a court of competent jurisdiction in another 33 state, territorial, or tribal jurisdiction shall be deemed valid if: 34 (a) the issuing court had personal jurisdiction over the parties and 35 over the subject matter under the law of the issuing jurisdiction; and 36 (b) the person against whom the order was issued had reasonable notice 37 and an opportunity to be heard prior to issuance of the order; provided, 38 however, that if the order was a temporary order of protection issued in 39 the absence of such person, that notice had been given and that an 40 opportunity to be heard had been provided within a reasonable period of 41 time after the issuance of the order. 42 3. Notwithstanding the provisions of article fifty-four of this chap- 43 ter, an order of protection or temporary order of protection issued by a 44 court of competent jurisdiction in another state, territorial, or tribal 45 jurisdiction, accompanied by a sworn affidavit that upon information and 46 belief such order is in effect as written and has not been vacated or 47 modified, may be filed without fee with the clerk of the court. 48 § 3. Section 120.14 of the penal law, as amended by chapter 222 of the 49 laws of 1994, subdivision 3 as amended by chapter 597 of the laws of 50 1998, is amended to read as follows: 51 § 120.14 Menacing in the second degree. 52 A person is guilty of menacing in the second degree when: 53 1. [He or she] They intentionally [places] place or [attempts] attempt 54 to place another person in reasonable fear of physical injury, serious 55 physical injury or death by displaying a deadly weapon, dangerous
S. 9596 7 1 instrument or what appears to be a pistol, revolver, rifle, shotgun, 2 machine gun or other firearm; or 3 2. [He or she] They repeatedly [follows] follow a person or [engages] 4 engage in a course of conduct or repeatedly [commits] commit acts over a 5 period of time intentionally placing or attempting to place another 6 person in reasonable fear of physical injury, serious physical injury or 7 death; or 8 3. [He or she] They [commits] commit the crime of menacing in the 9 third degree in violation of that part of a duly served order of 10 protection, or such order which the defendant has actual knowledge of 11 because [he or she was] they were present in court when such order was 12 issued, pursuant to article eight of the family court act, section 13 530.12 of the criminal procedure law, article sixty-three-B of the civil 14 practice law and rules, or an order of protection issued by a court of 15 competent jurisdiction in another state, territorial or tribal jurisdic- 16 tion, which directed the respondent or defendant to stay away from the 17 person or persons on whose behalf the order was issued. 18 Menacing in the second degree is a class A misdemeanor. 19 § 4. Section 215.51 of the penal law, as amended by chapter 222 of the 20 laws of 1994, subdivision (b) as amended by chapter 353 of the laws of 21 1996, the opening paragraph of subdivision (b) and subdivision (d) as 22 amended by chapter 597 of the laws of 1998, subdivision (c) as amended 23 by chapter 349 of the laws of 2006, is amended to read as follows: 24 § 215.51 Criminal contempt in the first degree. 25 A person is guilty of criminal contempt in the first degree when: 26 (a) [he] they contumaciously and unlawfully [refuses] refuse to be 27 sworn as a witness before a grand jury, or, when after having been sworn 28 as a witness before a grand jury, [he refuses] they refuse to answer any 29 legal and proper interrogatory; or 30 (b) in violation of a duly served order of protection, or such order 31 of which the defendant has actual knowledge because [he or she was] they 32 were present in court when such order was issued, or an order of 33 protection issued by a court of competent jurisdiction in this or anoth- 34 er state, territorial or tribal jurisdiction, [he or she] they: 35 (i) intentionally [places] place or [attempts] attempt to place a 36 person for whose protection such order was issued in reasonable fear of 37 physical injury, serious physical injury or death by displaying a deadly 38 weapon, dangerous instrument or what appears to be a pistol, revolver, 39 rifle, shotgun, machine gun or other firearm or by means of a threat or 40 threats; or 41 (ii) intentionally [places] place or [attempts] attempt to place a 42 person for whose protection such order was issued in reasonable fear of 43 physical injury, serious physical injury, or death by repeatedly follow- 44 ing such person or engaging in a course of conduct or repeatedly commit- 45 ting acts over a period of time; or 46 (iii) intentionally [places] place or [attempts] attempt to place a 47 person for whose protection such order was issued in reasonable fear of 48 physical injury, serious physical injury, or death when [he or she 49 communicates] they communicate or [causes] cause a communication to be 50 initiated with such person by mechanical or electronic means or other- 51 wise, anonymously or otherwise, by telephone, or by telegraph, mail, or 52 any other form of written communication; or 53 (iv) with intent to harass, annoy, threaten or alarm a person for 54 whose protection such order was issued, repeatedly [makes] make tele- 55 phone calls to such person, whether or not a conversation ensues, with 56 no purpose of legitimate communication; or
S. 9596 8 1 (v) with intent to harass, annoy, threaten or alarm a person for whose 2 protection such order was issued, [strikes, shoves, kicks] strike, shove 3 or kick or otherwise [subjects] subject such other person to physical 4 contact or [attempts] attempt or [threatens] threaten to do the same; or 5 (vi) by physical menace, intentionally [places] place or [attempts] 6 attempt to place a person for whose protection such order was issued in 7 reasonable fear of death, imminent serious physical injury, or physical 8 injury. 9 (c) [he or she commits] they commit the crime of criminal contempt in 10 the second degree as defined in subdivision three of section 215.50 of 11 this article by violating that part of a duly served order of 12 protection, or such order of which the defendant has actual knowledge 13 because [he or she was] they were present in court when such order was 14 issued, under sections two hundred forty and two hundred fifty-two of 15 the domestic relations law, articles four, five, six and eight of the 16 family court act, [and] section 530.12 of the criminal procedure law, 17 and article sixty-three-B of the civil practice law and rules, or an 18 order of protection issued by a court of competent jurisdiction in 19 another state, territorial, or tribal jurisdiction, which requires the 20 respondent or defendant to stay away from the person or persons on whose 21 behalf the order was issued, and where the defendant has been previously 22 convicted of the crime of aggravated criminal contempt or criminal 23 contempt in the first or second degree for violating an order of 24 protection as described herein within the preceding five years; or 25 (d) in violation of a duly served order of protection, or such order 26 of which the defendant has actual knowledge because [he or she was] they 27 were present in court when such order was issued, or an order issued by 28 a court of competent jurisdiction in this or another state, territorial 29 or tribal jurisdiction, [he or she] they intentionally or recklessly 30 [damages] damage the property of a person for whose protection such 31 order was issued in an amount exceeding two hundred fifty dollars. 32 Criminal contempt in the first degree is a class E felony. 33 § 5. Subdivision 4 of section 140.10 of the criminal procedure law, as 34 added by chapter 222 of the laws of 1994, paragraph (a) as amended by 35 chapter 511 of the laws of 1996, paragraph (b) as amended by chapter 107 36 of the laws of 2004, paragraph (c) and the third undesignated paragraph 37 as amended by chapter 4 of the laws of 1997, the second undesignated 38 paragraph as added by chapter 480 of the laws of 2013, the closing para- 39 graph as amended by chapter 224 of the laws of 1994, is amended to read 40 as follows: 41 4. Notwithstanding any other provisions of this section, a police 42 officer shall arrest a person, and shall not attempt to reconcile the 43 parties or mediate, where such officer has reasonable cause to believe 44 that: 45 (a) a felony, other than subdivision three, four, nine or ten of 46 section 155.30 of the penal law, has been committed by such person 47 against a member of the same family or household, as member of the same 48 family or household is defined in subdivision one of section 530.11 of 49 this chapter; or 50 (b) a duly served order of protection, anti-stalking order, or special 51 order of conditions issued pursuant to subparagraph (i) or (ii) of para- 52 graph (o) of subdivision one of section 330.20 of this chapter is in 53 effect, or an order of which the respondent or defendant has actual 54 knowledge because [he or she was] they were present in court when such 55 order was issued, where the order appears to have been issued by a court
S. 9596 9 1 of competent jurisdiction of this or another state, territorial or 2 tribal jurisdiction; and 3 (i) Such order directs that the respondent or defendant stay away from 4 persons on whose behalf the order of protection or special order of 5 conditions has been issued and the respondent or defendant committed an 6 act or acts in violation of such "stay away" provision of such order; or 7 (ii) The respondent or defendant commits a family offense as defined 8 in subdivision one of section eight hundred twelve of the family court 9 act or subdivision one of section 530.11 of this chapter in violation of 10 such order of protection or special order of conditions. 11 The provisions of this subdivision shall apply only to orders of 12 protection issued pursuant to sections two hundred forty and two hundred 13 fifty-two of the domestic relations law, articles four, five, six and 14 eight of the family court act and section 530.12 of this chapter, 15 special orders of conditions issued pursuant to subparagraph (i) or (ii) 16 of paragraph (o) of subdivision one of section 330.20 of this chapter 17 insofar as they involve a victim or victims of domestic violence as 18 defined by subdivision one of section four hundred fifty-nine-a of the 19 social services law or a designated witness or witnesses to such domes- 20 tic violence, anti-stalking orders issued pursuant to article sixty- 21 three-B of the civil practice law and rules, and to orders of protection 22 issued by courts of competent jurisdiction in another state, territorial 23 or tribal jurisdiction. In determining whether reasonable cause exists 24 to make an arrest for a violation of an order issued by a court of 25 another state, territorial or tribal jurisdiction, the officer shall 26 consider, among other factors, whether the order, if available, appears 27 to be valid on its face or whether a record of the order exists on the 28 statewide registry of orders of protection and warrants established 29 pursuant to section two hundred twenty-one-a of the executive law or the 30 protection order file maintained by the national crime information 31 center; provided, however, that entry of the order of protection or 32 special order of conditions into the statewide registry or the national 33 protection order file shall not be required for enforcement of the 34 order. When a special order of conditions is in effect and a defendant 35 or respondent has been taken into custody pursuant to this paragraph, 36 nothing contained in this paragraph shall restrict or impair a police 37 officer from acting pursuant to section 9.41 of the mental hygiene law; 38 or 39 (c) a misdemeanor constituting a family offense, as described in 40 subdivision one of section 530.11 of this chapter and section eight 41 hundred twelve of the family court act, has been committed by such 42 person against such family or household member, unless the victim 43 requests otherwise. The officer shall neither inquire as to whether the 44 victim seeks an arrest of such person nor threaten the arrest of any 45 person for the purpose of discouraging requests for police intervention. 46 Notwithstanding the foregoing, when an officer has reasonable cause to 47 believe that more than one family or household member has committed such 48 a misdemeanor, the officer is not required to arrest each such person. 49 In such circumstances, the officer shall attempt to identify and arrest 50 the primary physical aggressor after considering: (i) the comparative 51 extent of any injuries inflicted by and between the parties; (ii) wheth- 52 er any such person is threatening or has threatened future harm against 53 another party or another family or household member; (iii) whether any 54 such person has a prior history of domestic violence that the officer 55 can reasonably ascertain; and (iv) whether any such person acted defen- 56 sively to protect [himself or herself] themselves from injury. The offi-
S. 9596 10 1 cer shall evaluate each complaint separately to determine who is the 2 primary physical aggressor and shall not base the decision to arrest or 3 not to arrest on the willingness of a person to testify or otherwise 4 participate in a judicial proceeding. 5 The protected party in whose favor the order of protection [or], 6 temporary order of protection, or anti-stalking order is issued may not 7 be held to violate an order issued in [his or her] their favor nor may 8 such protected party be arrested for violating such order. 9 Nothing contained in this subdivision shall be deemed to (a) require 10 the arrest of any person when the officer reasonably believes the 11 person's conduct is justifiable under article thirty-five of title C of 12 the penal law; or (b) restrict or impair the authority of any munici- 13 pality, political subdivision, or the division of state police from 14 promulgating rules, regulations and policies requiring the arrest of 15 persons in additional circumstances where domestic violence has alleged- 16 ly occurred. 17 No cause of action for damages shall arise in favor of any person by 18 reason of any arrest made by a police officer pursuant to this subdivi- 19 sion, except as provided in sections seventeen and eighteen of the 20 public officers law and sections fifty-k, fifty-l, fifty-m and fifty-n 21 of the general municipal law, as appropriate. 22 § 6. This act shall take effect on the one hundred eightieth day after 23 it shall have become a law; provided, however, that the amendments to 24 subdivision 4 of section 140.10 of the criminal procedure law made by 25 section five of this act shall not affect the expiration of such subdi- 26 vision and shall expire and be deemed repealed therewith.