Relates to criminal contempt in the first degree

This bill would enhance the protection of domestic violence victims and their children by amending criminal contempt in the first degree to address repeated violations of orders of protection.

Summary of Provisions:

Section 1 of the bill would amend Penal Law § 215.51(c) to provide that a second violation of an order of protection within five years consti- tutes the felony offense of criminal contempt in the first degree when the conduct violates the provision requiring an individual to stay away from the home, business, school or place of employment of the victim. The proposal also deletes the language "as described herein."

Section 2 of the bill would set an effective date of 90 days.

Existing law:

Any intentional violation of an order of protection constitutes at least the misdemeanor of criminal contempt in the second degree under Penal Law § 215.50. Such violations are elevated to the felony of criminal contempt in the first degree under Penal Law § 215.51(c) when the violations are of the "stay away from the person" provision of orders of protection issued under the Domestic Relations Law, the Family Court Act, or Criminal Procedure Law § 530.12, which apply to crimes between members of the same family or household. However, the felony contempt provisions of Penal Law § 215.51(c) do not apply when the violations, even though repeated, are for conduct other than failing to stay away from the victim, i.e., staying away from the home, business, school or place of employment of the victim. In these cases, the second violation of the other stay away portions of an order of protection remains a misdemeanor.

Legislative history:

This bill was introduced in 2008 (A.10492/ S.7411) and passed the Senate, but was held in the Assembly Codes Committee.

Statement in support:

Domestic violence typically consists of a pattern of behavior, often escalating in severity. Repeated violations of orders of protection must be taken seriously, as they indicate that the defendant's conduct could escalate into more violent activities, and because they demonstrate that the abuser does not feel restrained by an order of the court.

However, the Penal Law imposes heightened sanctions for violations of orders of protection only when they are violations of the "stay away from the person" provision. As a result, no heightened sanction can be applied even when an individual repeatedly violates other provisions of an order of protection.

In People v. Dewall, 15 A.D.3d 498 (2d Dept. 2005), appeal denied, 5 N.Y.3d 787 (2005), the defendant waited outside of the victim's apart- ment in violation of an order of protection. The defendant was convicted after a jury trial of criminal contempt in the first degree. The Second Department overturned the conviction stating that the "stay away from the person" provision was not violated since the victim was not phys- ically home when the defendant was stalking her. What is most notable about this case is that the defendant was previously convicted of violating orders of protection against the same victim. Adding the "stay away from the home, school, business or place of employment of the person" language to the felony provision would address this loophole and properly sanction individuals who repeatedly flout orders of protection.

Under criminal contempt in the first degree (Penal Law §215.51(c)) the necessary underlying conviction must be a violation of an order of protection "as described herein." Some courts have interpreted this language to mean that both the current violation and the underlying violation must be for violation of the "stay away from the person" provision. Removing the "described herein" language would enable prose- cutors to use convictions for violations of any provision of prior orders of protection under criminal contempt in the second degree.

Budget implications:

None

Effective date:

This bill would be effective 90 days after it becomes a law.