§ 530.12 — Protection for victims of family offenses

New York § 530.12

• 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

§ 530.12 Protection for victims of family offenses.\n 1. When a criminal action is pending involving a complaint charging\nany crime or violation between spouses, former spouses, parent and\nchild, or between members of the same family or household, as members of\nthe same family or household are defined in subdivision one of section\n530.11 of this article, the court, in addition to any other powers\nconferred upon it by this chapter may issue a temporary order of\nprotection in conjunction with any securing order committing the\ndefendant to the custody of the sheriff or as a condition of any order\nof recognizance or bail or an adjournment in contemplation of dismissal.\n (a) In addition to any other conditions, such an order may require the\ndefendant: (1) to stay away from the home, school, business or place of\nemployment of the family or household member or of any designated\nwitness, provided that the court shall make a determination, and shall\nstate such determination in a written decision or on the record, whether\nto impose a condition pursuant to this paragraph, provided further,\nhowever, that failure to make such a determination shall not affect the\nvalidity of such temporary order of protection. In making such\ndetermination, the court shall consider, but shall not be limited to\nconsideration of, whether the temporary order of protection is likely to\nachieve its purpose in the absence of such a condition, conduct subject\nto prior orders of protection, prior incidents of abuse, past or present\ninjury, threats, drug or alcohol abuse, and access to weapons;\n (2) to permit a parent, or a person entitled to visitation by a court\norder or a separation agreement, to visit the child at stated periods;\n (3) to refrain from committing a family offense, as defined in\nsubdivision one of section 530.11 of this article, or any criminal\noffense against the child or against the family or household member or\nagainst any person to whom custody of the child is awarded, or from\nharassing, intimidating or threatening such persons;\n (4) to refrain from acts of commission or omission that create an\nunreasonable risk to the health, safety and welfare of a child, family\nor household member's life or health;\n (5) to permit a designated party to enter the residence during a\nspecified period of time in order to remove personal belongings not in\nissue in this proceeding or in any other proceeding or action under this\nchapter, the family court act or the domestic relations law;\n (6) (A) to refrain from intentionally injuring or killing, without\njustification, any companion animal the defendant knows to be owned,\npossessed, leased, kept or held by the victim or a minor child residing\nin the household.\n (B) "Companion animal", as used in this section, shall have the same\nmeaning as in subdivision five of section three hundred fifty of the\nagriculture and markets law;\n (7) (A) to promptly return specified identification documents to the\nprotected party, in whose favor the order of protection or temporary\norder of protection is issued; provided, however, that such order may:\n(i) include any appropriate provision designed to ensure that any such\ndocument is available for use as evidence in this proceeding, and\navailable if necessary for legitimate use by the party against whom such\norder is issued; and (ii) specify the manner in which such return shall\nbe accomplished.\n (B) For purposes of this subparagraph, "identification document" shall\nmean any of the following: (i) exclusively in the name of the protected\nparty: birth certificate, passport, social security card, health\ninsurance or other benefits card, a card or document used to access\nbank, credit or other financial accounts or records, tax returns, any\ndriver's license, and immigration documents including but not limited to\na United States permanent resident card and employment authorization\ndocument; and (ii) upon motion and after notice and an opportunity to be\nheard, any of the following, including those that may reflect joint use\nor ownership, that the court determines are necessary and are\nappropriately transferred to the protected party: any card or document\nused to access bank, credit or other financial accounts or records, tax\nreturns, and any other identifying cards and documents;\n (8) (A) to refrain from remotely controlling any connected devices\naffecting the home, vehicle or property of the person protected by the\norder.\n (B) For purposes of this subparagraph, "connected device" shall mean\nany device, or other physical object that is capable of connecting to\nthe internet, directly or indirectly, and that is assigned an internet\nprotocol address or bluetooth address.\n (b) The court may issue an order, pursuant to section two hundred\ntwenty-seven-c of the real property law, authorizing the party for whose\nbenefit any order of protection has been issued to terminate a lease or\nrental agreement pursuant to section two hundred twenty-seven-c of the\nreal property law.\n 2. Notwithstanding any other provision of law, a temporary order of\nprotection issued or continued by a family court pursuant to section\neight hundred thirteen of the family court act shall continue in effect,\nabsent action by the appropriate criminal court pursuant to subdivision\nthree of this section, until the defendant is arraigned upon an\naccusatory instrument filed pursuant to section eight hundred thirteen\nof the family court act in such criminal court.\n 3. The court may issue a temporary order of protection ex parte upon\nthe filing of an accusatory instrument and for good cause shown. When a\nfamily court order of protection is modified, the criminal court shall\nforward a copy of such modified order to the family court issuing the\noriginal order of protection; provided, however, that where a copy of\nthe modified order is transmitted to the family court by facsimile or\nother electronic means, the original copy of such modified order and\naccompanying affidavit shall be forwarded immediately thereafter.\n 3-a. Emergency powers when family court not in session; issuance of\ntemporary orders of protection. Upon the request of the petitioner, a\nlocal criminal court may on an ex parte basis issue a temporary order of\nprotection pending a hearing in family court, provided that a sworn\naffidavit, verified in accordance with subdivision one of section 100.30\nof this chapter, is submitted: (i) alleging that the family court is not\nin session; (ii) alleging that a family offense, as defined in\nsubdivision one of section eight hundred twelve of the family court act\nand subdivision one of section 530.11 of this article, has been\ncommitted; (iii) alleging that a family offense petition has been filed\nor will be filed in family court on the next day the court is in\nsession; and (iv) showing good cause. Upon appearance in a local\ncriminal court, the petitioner shall be advised that he or she may\ncontinue with the proceeding either in family court or upon the filing\nof a local criminal court accusatory instrument in criminal court or\nboth. Upon issuance of a temporary order of protection where petitioner\nrequests that it be returnable in family court, the local criminal court\nshall transfer the matter forthwith to the family court and shall make\nthe matter returnable in family court on the next day the family court\nis in session, or as soon thereafter as practicable, but in no event\nmore than four calendar days after issuance of the order. The local\ncriminal court, upon issuing a temporary order of protection returnable\nin family court pursuant to this subdivision, shall immediately forward,\nin a manner designed to insure arrival before the return date set in the\norder, a copy of the temporary order of protection and sworn affidavit\nto the family court and shall provide a copy of such temporary order of\nprotection to the petitioner; provided, however, that where a copy of\nthe temporary order of protection and affidavit are transmitted to the\nfamily court by facsimile or other electronic means, the original order\nand affidavit shall be forwarded to the family court immediately\nthereafter. Any temporary order of protection issued pursuant to this\nsubdivision shall be issued to the respondent, and copies shall be filed\nas required in subdivisions six and eight of this section for orders of\nprotection issued pursuant to this section. Any temporary order of\nprotection issued pursuant to this subdivision shall plainly state the\ndate that such order expires which, in the case of an order returnable\nin family court, shall be not more than four calendar days after its\nissuance, unless sooner vacated or modified by the family court. A\npetitioner requesting a temporary order of protection returnable in\nfamily court pursuant to this subdivision in a case in which a family\ncourt petition has not been filed shall be informed that such temporary\norder of protection shall expire as provided for herein, unless the\npetitioner files a petition pursuant to subdivision one of section eight\nhundred twenty-one of the family court act on or before the return date\nin family court and the family court issues a temporary order of\nprotection or order of protection as authorized under article eight of\nthe family court act. Nothing in this subdivision shall limit or\nrestrict the petitioner's right to proceed directly and without court\nreferral in either a criminal or family court, or both, as provided for\nin section one hundred fifteen of the family court act and section\n100.07 of this chapter.\n 3-b. Emergency powers when family court not in session; modifications\nof orders of protection or temporary orders of protection. Upon the\nrequest of the petitioner, a local criminal court may on an ex parte\nbasis modify a temporary order of protection or order of protection\nwhich has been issued under article four, five, six or eight of the\nfamily court act pending a hearing in family court, provided that a\nsworn affidavit verified in accordance with subdivision one of section\n100.30 of this chapter is submitted: (i) alleging that the family court\nis not in session and (ii) showing good cause, including a showing that\nthe existing order is insufficient for the purposes of protection of the\npetitioner, the petitioner's child or children or other members of the\npetitioner's family or household. The local criminal court shall make\nthe matter regarding the modification of the order returnable in family\ncourt on the next day the family court is in session, or as soon\nthereafter as practicable, but in no event more than four calendar days\nafter issuance of the modified order. The court shall immediately\nforward a copy of the modified order, if any, and sworn affidavit to the\nfamily court and shall provide a copy of such modified order, if any,\nand affidavit to the petitioner; provided, however, that where copies of\nsuch modified order and affidavit are transmitted to the family court by\nfacsimile or other electronic means, the original copies of such\nmodified order and affidavit shall be forwarded to the family court\nimmediately thereafter. Any modified temporary order of protection or\norder of protection issued pursuant to this subdivision shall be issued\nto the respondent and copies shall be filed as required in subdivisions\nsix and eight of this section for orders of protection issued pursuant\nto this section.\n 4. The court may issue or extend a temporary order of protection ex\nparte or on notice simultaneously with the issuance of a warrant for the\narrest of defendant. Such temporary order of protection may continue in\neffect until the day the defendant subsequently appears in court\npursuant to such warrant or voluntarily or otherwise.\n 5. * Upon sentencing on a conviction for any crime or violation\nbetween spouses, between a parent and child, or between members of the\nsame family or household as defined in subdivision one of section 530.11\nof this article, the court may in addition to any other disposition,\nincluding a conditional discharge or youthful offender adjudication,\nenter an order of protection. Where a temporary order of protection was\nissued, the court shall state on the record the reasons for issuing or\nnot issuing an order of protection. The duration of such an order shall\nbe fixed by the court and: (A) in the case of a felony conviction, shall\nnot exceed the greater of: (i) eight years from the date of such\nsentencing, except where the sentence is or includes a sentence of\nprobation on a conviction for a felony sexual assault, as provided in\nsubparagraph (iii) of paragraph (a) of subdivision three of section\n65.00 of the penal law, in which case, ten years from the date of such\nsentencing, or (ii) eight years from the date of the expiration of the\nmaximum term of an indeterminate or the term of a determinate sentence\nof imprisonment actually imposed; or (B) in the case of a conviction for\na class A misdemeanor, shall not exceed the greater of: (i) five years\nfrom the date of such sentencing, except where the sentence is or\nincludes a sentence of probation on a conviction for a misdemeanor\nsexual assault, as provided in subparagraph (ii) of paragraph (b) of\nsubdivision three of section 65.00 of the penal law, in which case, six\nyears from the date of such sentencing, or (ii) five years from the date\nof the expiration of the maximum term of a definite or intermittent term\nactually imposed; or (C) in the case of a conviction for any other\noffense, shall not exceed the greater of: (i) two years from the date of\nsentencing, or (ii) two years from the date of the expiration of the\nmaximum term of a definite or intermittent term actually imposed. For\npurposes of determining the duration of an order of protection entered\npursuant to this subdivision, a conviction shall be deemed to include a\nconviction that has been replaced by a youthful offender adjudication.\nIn addition to any other conditions, such an order may require the\ndefendant:\n * NB Effective until September 1, 2027\n * Upon sentencing on a conviction for any crime or violation between\nspouses, between a parent and child, or between members of the same\nfamily or household as defined in subdivision one of section 530.11 of\nthis article, the court may in addition to any other disposition,\nincluding a conditional discharge or youthful offender adjudication,\nenter an order of protection. Where a temporary order of protection was\nissued, the court shall state on the record the reasons for issuing or\nnot issuing an order of protection. The duration of such an order shall\nbe fixed by the court and, in the case of a felony conviction, shall not\nexceed the greater of: (i) five years from the date of such sentencing,\nor (ii) three years from the date of the expiration of the maximum term\nof an indeterminate sentence of imprisonment actually imposed; or in the\ncase of a conviction for a class A misdemeanor, shall not exceed three\nyears from the date of such sentencing; or in the case of a conviction\nfor any other offense, shall not exceed one year from the date of\nsentencing. For purposes of determining the duration of an order of\nprotection entered pursuant to this subdivision, a conviction shall be\ndeemed to include a conviction that has been replaced by a youthful\noffender adjudication. In addition to any other conditions, such an\norder may require the defendant:\n * NB Effective September 1, 2027\n (a) to stay away from the home, school, business or place of\nemployment of the family or household member, the other spouse or the\nchild, or of any witness designated by the court, provided that the\ncourt shall make a determination, and shall state such determination in\na written decision or on the record, whether to impose a condition\npursuant to this paragraph, provided further, however, that failure to\nmake such a determination shall not affect the validity of such order of\nprotection. In making such determination, the court shall consider, but\nshall not be limited to consideration of, whether the order of\nprotection is likely to achieve its purpose in the absence of such a\ncondition, conduct subject to prior orders of protection, prior\nincidents of abuse, extent of past or present injury, threats, drug or\nalcohol abuse, and access to weapons;\n (b) to permit a parent, or a person entitled to visitation by a court\norder or a separation agreement, to visit the child at stated periods;\n (c) to refrain from committing a family offense, as defined in\nsubdivision one of section 530.11 of this article, or any criminal\noffense against the child or against the family or household member or\nagainst any person to whom custody of the child is awarded, or from\nharassing, intimidating or threatening such persons;\n (d) to refrain from acts of commission or omission that create an\nunreasonable risk to the health, safety and welfare of a child, family\nor household member's life or health;\n (e) to permit a designated party to enter the residence during a\nspecified period of time in order to remove personal belongings not in\nissue in this proceeding or in any other proceeding or action under this\nchapter, the family court act or the domestic relations law; or\n (f) (i) to refrain from remotely controlling any connected devices\naffecting the home, vehicle or property of the person protected by the\norder.\n (ii) For purposes of this paragraph, "connected device" shall mean any\ndevice, or other physical object that is capable of connecting to the\ninternet, directly or indirectly, and that is assigned an internet\nprotocol address or bluetooth address.\n 6. An order of protection or a temporary order of protection issued\npursuant to subdivision one, two, three, four or five of this section\nshall bear in a conspicuous manner the term "order of protection" or\n"temporary order of protection" as the case may be and a copy shall be\nfiled by the clerk of the court with the sheriff's office in the county\nin which the complainant resides, or, if the complainant resides within\na city, with the police department of such city. The order of protection\nor temporary order of protection shall also contain the following\nnotice: "This order of protection will remain in effect even if the\nprotected party has, or consents to have, contact or communication with\nthe party against whom the order is issued. This order of protection can\nonly be modified or terminated by the court. The protected party cannot\nbe held to violate this order nor be arrested for violating this\norder.". The absence of such language shall not affect the validity of\nsuch order. A copy of such order of protection or temporary order of\nprotection may from time to time be filed by the clerk of the court with\nany other police department or sheriff's office having jurisdiction of\nthe residence, work place, and school of anyone intended to be protected\nby such order. A copy of the order may also be filed by the complainant\nat the appropriate police department or sheriff's office having\njurisdiction. Any subsequent amendment or revocation of such order shall\nbe filed in the same manner as herein provided.\n Such order of protection shall plainly state the date that such order\nexpires.\n 6-a. The court shall inquire as to the existence of any other orders\nof protection between the defendant and the person or persons for whom\nthe order of protection is sought.\n 7. A family offense subject to the provisions of this section which\noccurs subsequent to the issuance of an order of protection under this\nchapter shall be deemed a new offense for which the complainant may seek\nto file a new accusatory instrument and may file a family court petition\nunder article eight of the family court act as provided for in section\n100.07 of this chapter.\n 8. In any proceeding in which an order of protection or temporary\norder of protection or a warrant has been issued under this section, the\nclerk of the court shall issue to the complainant and defendant and\ndefense counsel and to any other person affected by the order a copy of\nthe order of protection or temporary order of protection and ensure that\na copy of the order of protection or temporary order of protection be\ntransmitted to the local correctional facility where the individual is\nor will be detained, the state or local correctional facility where the\nindividual is or will be imprisoned, and the supervising probation\ndepartment or department of corrections and community supervision where\nthe individual is under probation or parole supervision. The\npresentation of a copy of such order or a warrant to any peace officer\nacting pursuant to his or her special duties or police officer shall\nconstitute authority for him or her to arrest a person who has violated\nthe terms of such order and bring such person before the court and,\notherwise, so far as lies within his or her power, to aid in securing\nthe protection such order was intended to afford. The protected party in\nwhose favor the order of protection or temporary order of protection is\nissued may not be held to violate an order issued in his or her favor\nnor may such protected party be arrested for violating such order.\n 9. If no warrant, order or temporary order of protection has been\nissued by the court, and an act alleged to be a family offense as\ndefined in section 530.11 of this chapter is the basis of the arrest,\nthe magistrate shall permit the complainant to file a petition,\ninformation or accusatory instrument and for reasonable cause shown,\nshall thereupon hold such respondent or defendant, admit to, fix or\naccept bail, or parole him or her for hearing before the family court or\nappropriate criminal court as the complainant shall choose in accordance\nwith the provisions of section 530.11 of this chapter.\n 10. Punishment for contempt based on a violation of an order of\nprotection or temporary order of protection shall not affect the\noriginal criminal action, nor reduce or diminish a sentence upon\nconviction for the original crime or violation alleged therein or for a\nlesser included offense thereof.\n 11. If a defendant is brought before the court for failure to obey any\nlawful order issued under this section, or an order of protection issued\nby a court of competent jurisdiction in another state, territorial or\ntribal jurisdiction, and if, after hearing, the court is satisfied by\ncompetent proof that the defendant has willfully failed to obey any such\norder, the court may:\n (a) revoke an order of recognizance or release under non-monetary\nconditions or revoke an order of bail or order forfeiture of such bail\nand commit the defendant to custody; or\n (b) restore the case to the calendar when there has been an\nadjournment in contemplation of dismissal and commit the defendant to\ncustody; or\n (c) revoke a conditional discharge in accordance with section 410.70\nof this chapter and impose probation supervision or impose a sentence of\nimprisonment in accordance with the penal law based on the original\nconviction; or\n (d) revoke probation in accordance with section 410.70 of this chapter\nand impose a sentence of imprisonment in accordance with the penal law\nbased on the original conviction. In addition, if the act which\nconstitutes the violation of the order of protection or temporary order\nof protection is a crime or a violation the defendant may be charged\nwith and tried for that crime or violation.\n 12. The chief administrator of the courts shall promulgate appropriate\nuniform temporary orders of protection and orders of protection forms to\nbe used throughout the state. Such forms shall be promulgated and\ndeveloped in a manner to ensure the compatability of such forms with the\nstatewide computerized registry established pursuant to section two\nhundred twenty-one-a of the executive law.\n 13. Notwithstanding the foregoing provisions, an order of protection,\nor temporary order of protection when applicable, may be entered against\na former spouse and persons who have a child in common, regardless of\nwhether such persons have been married or have lived together at any\ntime, or against a member of the same family or household as defined in\nsubdivision one of section 530.11 of this article.\n 14. The people shall make reasonable efforts to notify the complainant\nalleging a crime constituting a family offense when the people have\ndecided to decline prosecution of such crime, to dismiss the criminal\ncharges against the defendant or to enter into a plea agreement. The\npeople shall advise the complainant of the right to file a petition in\nthe family court pursuant to section 100.07 of this chapter and section\none hundred fifteen of the family court act.\n In any case where allegations of criminal conduct are transferred from\nthe family court to the criminal court pursuant to paragraph (ii) of\nsubdivision (b) of section eight hundred forty-six of the family court\nact, the people shall advise the family court making the transfer of any\ndecision to file an accusatory instrument against the family court\nrespondent and shall notify such court of the disposition of such\ninstrument and the sentence, if any, imposed upon such respondent.\n Release of a defendant from custody shall not be delayed because of\nthe requirements of this subdivision.\n 15. Any motion to vacate or modify an order of protection or temporary\norder of protection shall be on notice to the non-moving party, except\nas provided in subdivision three-b of this section.\n