N.Y. CPL. LAW § 530.12 : NY Code - Section 530.12: Protection for victims of family offenses

Search N.Y. CPL. LAW § 530.12 : NY Code - Section 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  in  conjunction  with  any  securing  order  committing  the
  defendant  to  the custody of the sheriff or 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;
    (f) 1. to refrain from  intentionally  injuring  or  killing,  without
  justification,  any  companion  animal  the defendant knows to be owned,
  possessed, leased, kept or held by the victim or a minor child  residing
  in the household.
    2.  "Companion  animal",  as used in this section, shall have the same
  meaning as in subdivision five of section three  hundred  fifty  of  the
  agriculture and markets law.
    (g)  The  court  may  issue  an order, pursuant to section two hundred
  twenty-seven-c of the real property law, authorizing the party for whose
  benefit any order of protection has been issued to terminate a lease  or
  rental  agreement  pursuant to section two hundred twenty-seven-c of the
  real property 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)  eight years from the date of such conviction, or (ii)
  eight 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  five  years  from  the  date  of  such
  conviction; or in the case of a conviction for any other offense,  shall
  not  exceed  two  years  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, 2011
    * 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, 2011
    (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 and ensure that
  a copy of the order of protection or temporary order  of  protection  be
  transmitted  to  the local correctional facility where the individual is
  or will be detained, the state or local correctional facility where  the
  individual  is  or  will  be  imprisoned,  and the supervising probation
  department or division of parole where the individual is under probation
  or parole supervision. 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 of
  whether such persons have been married or have  lived  together  at  any
  time,  or against a member of the same family or household as defined in
  subdivision one of section 530.11 of this article.
    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.