§ 154-D — Emergency powers; local criminal courts

§ 154-d. Emergency powers; local criminal courts. 1. 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, certified in accordance with subdivision one of section\n100.30 of the criminal procedure law is submitted: (i) alleging that the\nfamily court is not in session; (ii) alleging that a family offense, as\ndefined in subdivision one of section eight hundred twelve of this act\nor subdivision one of section 530.11 of the criminal procedure law, has\nbeen committed; (iii) alleging that a family offense petition has been\nfiled or 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 ensure 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 if the temporary\norder of protection and affidavit are transmitted by facsimile or other\nelectronic means, the original order and affidavit shall be forwarded to\nthe family court immediately thereafter. Any temporary order of\nprotection issued pursuant to this subdivision shall be issued to the\nrespondent and copies shall be filed as required in subdivisions six and\neight of section 530.12 of the criminal procedure law for orders of\nprotection issued pursuant to such 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 this act on or before the return date in family\ncourt and the family court issues a temporary order of protection as\nauthorized under article eight of this act. Nothing in this subdivision\nshall limit or restrict the petitioner's right to proceed directly and\nwithout court referral in either a criminal or family court, or both, as\nprovided for in section one hundred fifteen of this act and section\n100.07 of the criminal procedure law.\n 2. Modifications of orders of protection or temporary orders of\nprotection. Upon the request of the petitioner, a local criminal court\nmay on an ex parte basis modify a temporary order of protection or order\nof protection which has been issued under article four, five, six or\neight of this act pending a hearing in family court, provided that a\nsworn affidavit, verified in accordance with subdivision one of section\n100.30 of the criminal procedure law, is submitted: (i) alleging that\nthe family court is not in session and (ii) showing good cause,\nincluding a showing that the existing order is insufficient for the\npurposes of protection of the petitioner, the petitioner's child or\nchildren or other members of the petitioner's family or household. The\nlocal criminal court shall make the matter regarding the modification of\nthe order returnable in family court on the next day the family court is\nin session, or as soon thereafter as practicable, but in no event more\nthan four calendar days after issuance of the modified order. The local\ncriminal court shall immediately forward, in a manner designed to ensure\narrival before the return date set in the order, a copy of the modified\norder if any and sworn affidavit to the family court and shall provide a\ncopy of such modified order, if any, and affidavit to the petitioner;\nprovided, however, that if the modified order and affidavit are\ntransmitted to the family court by facsimile or other electronic means,\nthe original copy of such modified order and affidavit shall be\nforwarded to the family court immediately thereafter. Any modified\ntemporary order of protection or order of protection issued pursuant to\nthis subdivision shall be issued to the respondent, and copies shall be\nfiled as provided in subdivisions six and eight of section 530.12 of the\ncriminal procedure law for orders of protection issued pursuant to such\nsection.\n