Provides clarification on determining the expiration date of an order of protection issued in relation to a family offense

Section two amends the opening paragraph of subdivision four of section 530.13 of the criminal procedure law, as amended by chapter 215 of the laws of2006, to provide for the entering of an order of protection upon sentencing on a conviction of any offense. In the case of a felony conviction, the court shall fix the duration of an order of protection at not more than eight years from the date of sentencing, except where the sentence is or includes a sentence of probation on a conviction for a felony sexual assault, as defined in subdivision three of section 65.00 of the penal law, in which case, ten years from the date of such sentencing, or 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. In the case of a conviction for a class A misdemeanor, the duration of an order of protection shall be fixed at not more than five years from the date of sentencing, except where the sentence is or includes a sentence of probation on a conviction for a class A misdemeanor sexual assault, as defined in subdivision three of section 65.00 of the penal law, in which case, six years from the date of such sentencing, and in the case of a conviction for any other offense, not more than two years from the date of sentencing. This section further provides that in calculating the expiration date of the maximum term of an indeterminate or the term of a determinate sentence of imprisonment actually imposed, the court shall disregard any jail time credit that may be applied against the defendant's sentence, and shall, in addition, with respect to a determinate sentence, calculate the expiration date of the term of such sentence by adding the full term of the imprisonment portion of such sentence as imposed by the court and the full period of post-release supervision imposed.

Section three establishes an effective date of thirty days after becoming law, and would apply to all criminal actions whenever commenced provided the sentence therein has not been imposed prior to such date.

Justification

Pursuant to subdivision five of Criminal Procedure Law section 530.12, a criminal court, "upon conviction of a defendant of any crime or violation between spouses, parent and child, or between members of the same family or household," may, in addition to any other disposition, issue a final order of protection. Similarly, pursuant to subdivision four of CPL section 530.13, a criminal court, "upon conviction* of a defendant of any offense, where the court has not issued an order of protection pursuant to CPL section 530.12," may, in addition to any other disposition, issue a final order of protection. With respect to the permissible duration of a final order of protection, both CPL sections 530.12(5) and 530.13(4) also provide that "the duration of such an order must 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." CPL sections 530.12(5) and 530.13(4).

Under a separate provision of both CPL sections 530.12 and 530.13, every order of protection issued under those sections must "plainly state the date that such order expires." CPL sections 530.12(6) and 530.13(5). The provisions for calculating the maximum permissible duration of a final order of protection seem relatively straightforward, but can be difficult to apply, especially in cases where the order is imposed in conjunction with a prison sentence. A court, for example, that imposes a determinate or indeterminate sentence of imprisonment, must, in determining the exact expiration date of the term or maximum term of such sentence for purposes of calculating the maximum permissible expiration date of a final order of protection, take into account any jail time credit the defendant may have earned prior to sentence. See, generally, People v. Nieves, 2 N.Y.3d 310 (2004). The exact amount of jail time credit a defendant has earned, however, is ordinarily not available to the court at the time of sentencing. Id., at 317. This may result in the court setting an expiration date on the order of protection that exceeds the statutory maximum, thus requiring that the defendant be returned to the sentencing court (once the correct jail credit information is obtained by the Department of Corrections) so the order can be amended and a new (i.e. earlier) expiration date set. As with the original order of protection, a copy of the amended order must then be provided to the protected party or parties and to the appropriate law enforcement authorities. See, generally, CPL sections 530.12(6) and (8); and 530.13(5) and (6).

This bill would eliminate the need for this cumbersome and costly procedure by amending CPL sections 530.12(5) and 530.13(4) to expressly provide that, for purposes of calculating the maximum permissible duration of a final order of protection, the sentencing court "shall disregard any jail time credit that may be applied against the defendant's sentence." In addition, the bill would amend these same two CPL provisions to clarify that, for purposes of calculating the maximum expiration date of a final order of protection, the expiration date of a term of a determinate sentence shall be calculated by adding the full term of the imprisonment portion of such sentence as imposed by the court and the full period of post-release supervision imposed. The latter amendment, which codifies a 2002 ruling of the Appellate Division, Third Department (see, People v. Goodband, 291 A.D.2d 584 3d Dept., 2002; but see, People v. Wheeler, 268 A.D.2d 448 2d Dept., 2000, leave to appeal denied, 94 N.Y.2d 926), is intended to both clarify the law in this area and further simplify the process of calculating the maximum permissible expiration date of a final order of protection issued in a case where a determinate sentence is imposed. Together, these amendments will help to ensure that all orders of protection "contain specific and correct expiration dates to provide certainty for defendants, the protected victims and witnesses, and law enforcement authorities who may be called to enforce them." Nieves, supra., at 317.

In addition to simplifying the process of calculating the maximum permissible duration of a final order of protection, the bill would correct another anomaly in CPL sections 530.12(5) and 530.13(4). Specifically, the bill would amend these two provisions to provide that a final order of protection shall be issued not on the date of conviction, as is currently required under the statutes, but on the date of sentencing. A final order of protection is intended to provide protection to a victim or witness during the period following disposition of the case, when the defendant may no longer be subject to a temporary order of protection issued as a condition of bail or recognizance (see, CPL sections 530.12(1) and 530.13(1). It makes no sense, therefore, to require that the final order be issued "upon conviction," when the defendant may lawfully be subject to a temporary order of protection (i.e. one issued as a condition of bail or recognizance) right up until the date of sentencing.

In 2006. the criminal procedure law was amended to extend the permissible duration of a final order of protection issued in criminal cases. However the amendments did not account fully for the statutorily required longer probation periods for class A misdemeanor sexual assault convictions and felon sexual assault convictions. Thus when a final order of protection is issued on a sexual assault conviction where probation is imposed the order will expire before the defendant has completed his probation. This bill would amend CPL sections 530.12 5 and 530.13( 4) to provide that the duration of a final order of protection issued in a case where the defendant is convicted of sexual assault and probation is ordered or is ordered as part of his sentence a final order of protection shall not exceed ten ears in the case of a felon sexual assault. or six years in the case of a class A misdemeanor sexual assault.

Finally, this bill makes a technical amendment to the opening sentence of subdivision five of CPL section 530.12 to clarify that a final order of protection may also be issued under that subdivision where the conviction is for a crime or violation between former spouses. See, CPL section 530.12(13) providing, in relevant part, that a temporary or final order of protection issued under that section "may be entered against a former spouse"; and CPL section 530.11 (l)(c) including within the definition of "members of the same family or household" "persons formerly married to one another."

This bill will take effect thirty days after it becomes law, and would apply to all criminal actions whenever commenced provided sentence therein has not been imposed prior to such date.

*Both subdivision five of CPL section 530.12 and subdivision four of CPL section 530.13 provide that, for purposes of determining the duration of a final order of protection under those subdivisions, "a conviction shall be deemed to include a conviction that has been replaced by a youthful offender adjudication." CPL sections 530.12(5) and 530.13(4).

Legislative history

A.6824, 2007 and 2008 referred to codes. Same as S.4693, 2007 and 2008 passed senate.

Fiscal implications

None.

Effective date

This act shall take effect thirty days after becoming law, and would apply to all criminal actions whenever commenced provided sentence therein has not been imposed prior to such date.