§ 530.11 — Procedures for family offense matters

New York § 530.11

• Jurisdiction: New York
• Law CPL: Criminal Procedure
• Title P: Procedures For Securing Attendance At Criminal Actions and Proceedings of Defendants and Witnesses Under Control of Court--recognizance, Bail and Commitment
• Part 3: Special Proceedings and Miscellaneous Procedures
• Art. 530: Orders of Recognizance or Bail With Respect to Defendants In Criminal Actions and Proceedings--when and By What Courts Authorized

Text

§ 530.11 Procedures for family offense matters.\n 1. Jurisdiction. The family court and the criminal courts shall have\nconcurrent jurisdiction over any proceeding concerning acts which would\nconstitute disorderly conduct, unlawful dissemination or publication of\nan intimate image, harassment in the first degree, harassment in the\nsecond degree, aggravated harassment in the second degree, sexual\nmisconduct, forcible touching, sexual abuse in the third degree, sexual\nabuse in the second degree as set forth in subdivision one of section\n130.60 of the penal law, stalking in the first degree, stalking in the\nsecond degree, stalking in the third degree, stalking in the fourth\ndegree, criminal mischief, menacing in the second degree, menacing in\nthe third degree, reckless endangerment, strangulation in the first\ndegree, strangulation in the second degree, criminal obstruction of\nbreathing or blood circulation, assault in the second degree, assault in\nthe third degree, an attempted assault, identity theft in the first\ndegree, identity theft in the second degree, identity theft in the third\ndegree, grand larceny in the fourth degree, grand larceny in the third\ndegree, coercion in the second degree or coercion in the third degree as\nset forth in subdivisions one, two and three of section 135.60 of the\npenal law between spouses or former spouses, or between parent and child\nor between members of the same family or household except that if the\nrespondent would not be criminally responsible by reason of age pursuant\nto section 30.00 of the penal law, then the family court shall have\nexclusive jurisdiction over such proceeding. Notwithstanding a\ncomplainant's election to proceed in family court, the criminal court\nshall not be divested of jurisdiction to hear a family offense\nproceeding pursuant to this section. For purposes of this section,\n"disorderly conduct" includes disorderly conduct not in a public place.\nFor purposes of this section, "members of the same family or household"\nwith respect to a proceeding in the criminal courts shall mean the\nfollowing:\n (a) persons related by consanguinity or affinity;\n (b) persons legally married to one another;\n (c) persons formerly married to one another regardless of whether they\nstill reside in the same household;\n (d) persons who have a child in common, regardless of whether such\npersons have been married or have lived together at any time;\n (e) persons who are not related by consanguinity or affinity and who\nare or have been in an intimate relationship regardless of whether such\npersons have lived together at any time. Factors the court may consider\nin determining whether a relationship is an "intimate relationship"\ninclude but are not limited to: the nature or type of relationship,\nregardless of whether the relationship is sexual in nature; the\nfrequency of interaction between the persons; and the duration of the\nrelationship. Neither a casual acquaintance nor ordinary fraternization\nbetween two individuals in business or social contexts shall be deemed\nto constitute an "intimate relationship"; and\n (f) persons who are related by consanguinity or affinity to parties\nwho are or have been in an intimate relationship as defined in paragraph\n(e) of this subdivision.\n 2. Information to petitioner or complainant. The chief administrator\nof the courts shall designate the appropriate probation officers,\nwarrant officers, sheriffs, police officers, district attorneys or any\nother law enforcement officials, to inform any petitioner or complainant\nbringing a proceeding under this section before such proceeding is\ncommenced, of the procedures available for the institution of family\noffense proceedings, including but not limited to the following:\n (a) That there is concurrent jurisdiction with respect to family\noffenses in both family court and the criminal courts;\n (b) That a family court proceeding is a civil proceeding and is for\nthe purpose of attempting to stop the violence, end family disruption\nand obtain protection. That referrals for counseling, or counseling\nservices, are available through probation for this purpose;\n (c) That a proceeding in the criminal courts is for the purpose of\nprosecution of the offender and can result in a criminal conviction of\nthe offender;\n (d) That a proceeding or action subject to the provisions of this\nsection is initiated at the time of the filing of an accusatory\ninstrument or family court petition, not at the time of arrest, or\nrequest for arrest, if any;\n (f) That an arrest may precede the commencement of a family court or a\ncriminal court proceeding, but an arrest is not a requirement for\ncommencing either proceeding.\n (h) At such time as the complainant first appears before the court on\na complaint or information, the court shall advise the complainant that\nthe complainant may: continue with the proceeding in criminal court; or\nhave the allegations contained therein heard in a family court\nproceeding; or proceed concurrently in both criminal and family court.\nNotwithstanding a complainant's election to proceed in family court, the\ncriminal court shall not be divested of jurisdiction to hear a family\noffense proceeding pursuant to this section;\n (i) Nothing herein shall be deemed to limit or restrict complainant's\nrights to proceed directly and without court referral in either a\ncriminal or family court, or both, as provided for in section one\nhundred fifteen of the family court act and section 100.07 of this\nchapter;\n 2-a. Upon the filing of an accusatory instrument charging a crime or\nviolation described in subdivision one of this section between members\nof the same family or household, as such terms are defined in this\nsection, or as soon as the complainant first appears before the court,\nwhichever is sooner, the court shall advise the complainant of the right\nto proceed in both the criminal and family courts, pursuant to section\n100.07 of this chapter.\n 3. Official responsibility. No official or other person designated\npursuant to subdivision two of this section shall discourage or prevent\nany person who wishes to file a petition or sign a complaint from having\naccess to any court for that purpose.\n 4. When a person is arrested for an alleged family offense or an\nalleged violation of an order of protection or temporary order of\nprotection or arrested pursuant to a warrant issued by the supreme or\nfamily court, and the supreme or family court, as applicable, is not in\nsession, such person shall be brought before a local criminal court in\nthe county of arrest or in the county in which such warrant is\nreturnable pursuant to article one hundred twenty of this chapter. Such\nlocal criminal court may issue any order authorized under subdivision\neleven of section 530.12 of this article, section one hundred\nfifty-four-d or one hundred fifty-five of the family court act or\nsubdivision three-b of section two hundred forty or subdivision two-a of\nsection two hundred fifty-two of the domestic relations law, in addition\nto discharging other arraignment responsibilities as set forth in this\nchapter. In making such order, the local criminal court shall consider\nde novo the recommendation and securing order, if any, made by the\nsupreme or family court as indicated on the warrant or certificate of\nwarrant. Unless the petitioner or complainant requests otherwise, the\ncourt, in addition to scheduling further criminal proceedings, if any,\nregarding such alleged family offense or violation allegation, shall\nmake such matter returnable in the supreme or family court, as\napplicable, on the next day such court is in session.\n 5. Filing and enforcement of out-of-state orders of protection. A\nvalid order of protection or temporary order of protection issued by a\ncourt of competent jurisdiction in another state, territorial or tribal\njurisdiction shall be accorded full faith and credit and enforced as if\nit were issued by a court within the state for as long as the order\nremains in effect in the issuing jurisdiction in accordance with\nsections two thousand two hundred sixty-five and two thousand two\nhundred sixty-six of title eighteen of the United States Code.\n (a) An order issued by a court of competent jurisdiction in another\nstate, territorial or tribal jurisdiction shall be deemed valid if:\n (i) the issuing court had personal jurisdiction over the parties and\nover the subject matter under the law of the issuing jurisdiction;\n (ii) the person against whom the order was issued had reasonable\nnotice and an opportunity to be heard prior to issuance of the order;\nprovided, however, that if the order was a temporary order of protection\nissued in the absence of such person, that notice had been given and\nthat an opportunity to be heard had been provided within a reasonable\nperiod of time after the issuance of the order; and\n (iii) in the case of orders of protection or temporary orders of\nprotection issued against both a petitioner, plaintiff or complainant\nand respondent or defendant, the order or portion thereof sought to be\nenforced was supported by: (A) a pleading requesting such order,\nincluding, but not limited to, a petition, cross-petition or\ncounterclaim; and (B) a judicial finding that the requesting party is\nentitled to the issuance of the order which may result from a judicial\nfinding of fact, judicial acceptance of an admission by the party\nagainst whom the order was issued or judicial finding that the party\nagainst whom the order was issued had given knowing, intelligent and\nvoluntary consent to its issuance.\n (b) Notwithstanding the provisions of article fifty-four of the civil\npractice law and rules, an order of protection or temporary order of\nprotection issued by a court of competent jurisdiction in another state,\nterritorial or tribal jurisdiction, accompanied by a sworn affidavit\nthat upon information and belief such order is in effect as written and\nhas not been vacated or modified, may be filed without fee with the\nclerk of the court, who shall transmit information regarding such order\nto the statewide registry of orders of protection and warrants\nestablished pursuant to section two hundred twenty-one-a of the\nexecutive law; provided, however, that such filing and registry entry\nshall not be required for enforcement of the order.\n 6. Notice. Every police officer, peace officer or district attorney\ninvestigating a family offense under this article shall advise the\nvictim of the availability of a shelter or other services in the\ncommunity, and shall immediately give the victim written notice of the\nlegal rights and remedies available to a victim of a family offense\nunder the relevant provisions of this chapter and the family court act.\nSuch notice shall be prepared, at minimum, in plain English, Spanish,\nChinese and Russian and if necessary, shall be delivered orally, and\nshall include but not be limited to the information contained in the\nfollowing statement:\n "Are you the victim of domestic violence? If you need help now, you\ncan call 911 for the police to come to you. You can also call a domestic\nviolence hotline. You can have a confidential talk with an advocate at\nthe hotline about help you can get in your community including: where\nyou can get treatment for injuries, where you can get shelter, where you\ncan get support, and what you can do to be safe. The New York State\n24-hour Domestic & Sexual Violence Hotline number is (insert the\nstatewide multilingual 800 number). They can give you information in\nmany languages. If you are deaf or hard of hearing, call 711.\n This is what the police can do:\n They can help you and your children find a safe place such as a family\nor friend's house or a shelter in your community.\n You can ask the officer to take you or help you and your children get\nto a safe place in your community.\n They can help connect you to a local domestic violence program.\n They can help you get to a hospital or clinic for medical care.\n They can help you get your personal belongings.\n They must complete a report discussing the incident. They will give\nyou a copy of this police report before they leave the scene. It is\nfree.\n They may, and sometimes must, arrest the person who harmed you if you\nare the victim of a crime. The person arrested could be released at any\ntime, so it is important to plan for your safety.\n If you have been abused or threatened, this is what you can ask the\npolice or district attorney to do:\n File a criminal complaint against the person who harmed you.\n Ask the criminal court to issue an order of protection for you and\nyour child if the district attorney files a criminal case with the\ncourt.\n Give you information about filing a family offense petition in your\nlocal family court.\n You also have the right to ask the family court for an order of\nprotection for you and your children.\n This is what you can ask the family court to do:\n To have your family offense petition filed the same day you go to\ncourt.\n To have your request heard in court the same day you file or the next\nday court is open.\n Only a judge can issue an order of protection. The judge does that as\npart of a criminal or family court case against the person who harmed\nyou. An order of protection in family court or in criminal court can\nsay:\n That the other person have no contact or communication with you by\nmail, phone, computer or through other people.\n That the other person stay away from you and your children, your home,\njob or school.\n That the other person not assault, harass, threaten, strangle, or\ncommit another family offense against you or your children.\n That the other person turn in their firearms and firearms licenses,\nand not get any more firearms.\n That you have temporary custody of your children.\n That the other person pay temporary child support.\n That the other person not harm your pets or service animals.\n If the family court is closed because it is night, a weekend, or a\nholiday, you can go to a criminal court to ask for an order of\nprotection.\n If you do not speak English or cannot speak it well, you can ask the\npolice, the district attorney, or the criminal or family court to get\nyou an interpreter who speaks your language. The interpreter can help\nyou explain what happened.\n You can get the forms you need to ask for an order of protection at\nyour local family court (insert addresses and contact information for\ncourts). You can also get them online: www.NYCourts.gov/forms.\n You do not need a lawyer to ask for an order of protection.\n You have a right to get a lawyer in the family court. If the family\ncourt finds that you cannot afford to pay for a lawyer, it must get you\none for free.\n If you file a complaint or family court petition, you will be asked to\nswear to its truthfulness because it is a crime to file a legal document\nthat you know is false."\n The division of criminal justice services in consultation with the\nstate office for the prevention of domestic violence shall prepare the\nform of such written notice consistent with provisions of this section\nand distribute copies thereof to the appropriate law enforcement\nofficials pursuant to subdivision nine of section eight hundred\nforty-one of the executive law.\n Additionally, copies of such notice shall be provided to the chief\nadministrator of the courts to be distributed to victims of family\noffenses through the criminal court at such time as such persons first\ncome before the court and to the state department of health for\ndistribution to all hospitals defined under article twenty-eight of the\npublic health law. No cause of action for damages shall arise in favor\nof any person by reason of any failure to comply with the provisions of\nthis subdivision except upon a showing of gross negligence or willful\nmisconduct.\n 7. Rules of court regarding concurrent jurisdiction. The chief\nadministrator of the courts, pursuant to paragraph (e) of subdivision\ntwo of section two hundred twelve of the judiciary law, shall promulgate\nrules to facilitate record sharing and other communication between the\ncriminal and family courts, subject to applicable provisions of this\nchapter and the family court act pertaining to the confidentiality,\nexpungement and sealing of records, when such courts exercise concurrent\njurisdiction over family offense proceedings.\n