Relates to enhancing penalties and protecting victims of crimes of domestic violence

Summary of provisions

Section 1. Amends Subdivision 4 of Section 240.30 of the Penal law aggravated harassment in the second degree by adding the violation of harassment in the in the second degree as a predicate offense thus elevating a second Harassment in the second degree to an Aggravated Harassment, a class "A" misdemeanor.

Section 2. Amends Penal Law section 240.31 by changing the name of said section to Bias Related Aggravated Harassment.

Section 3. Amends the Penal Law and creates a new subdivision 240.29 Aggravated Harassment in the First degree, which provides that a person is guilty of such harassment when they have previously been convicted of Aggravated Harassment in the Second degree in the previous ten years and presently commits the crime of Aggravated Harassment as defined in subdivision 1, 2 or 4 of 240.30 and the victim of the present crime is a household or family member.

Section 4. Amends section 120.05 Assault in the Second degree by adding a new subdivision which allows felony treatment of a misdemeanor assault when the actor has been previously convicted of a

delineated offense and the present assault is committed against a member of the same family of household.

Section 5. Amends section 121.12 of the Penal Law by adding a second subdivision such that Strangulation in the Second degree the class "D" felony can be charged if a person commits the misdemeanor offenses of criminal obstruction of breathing or blood circulation as defined in section 121.11 and such person has previously been convicted of criminal obstruction of breathing or blood circulation in the preceding ten years and the present crime is committed against a family or household member.

Section 6. Raises the penalty for Menacing in the First degree to a class "D" felony.

Section 7. Amends Penal Law § 215.51(c) to provide that a second violation of a family offense order of protection within ten years constitutes the felony of Criminal Contempt in the First Degree when the new violation includes conduct that violates any part of the order of protection. It would also remove language that may limit the enhancement of the crime when a defendant violates different provisions of the order of protection.

Section 8. Amends Penal Law section 250.51 raising it one degree higher to a "D" felony.

Section 9 and 10 of the bill amend §60.35 of the penal law and create a domestic violence victim assistance fee of $250. This fee is required to be turned over to the Office for the Prevention of Domestic Violence and required to be used for training of law enforcement personnel in issues of domestic violence.

Section 11. Amends §215.52 Aggravated Criminal Contempt raising it from a class "D" to class "C" felony. It also amends the 5 year look back period to ten years providing that any conviction within the previous 10 years for proscribed conduct constitute the crime of Aggravated Criminal Contempt.

Section 12. §215.51 Criminal Contempt in the First degree and §215.52 Aggravated Criminal Contempt are made violent felonies by amending Penal law 70.02.

Section 13. Amends by re-lettering paragraph (b) as paragraph (c) of subdivision 2 of section 510.30 of the criminal procedure law and adds a new paragraph (b). This new paragraph requires the court to consider certain factors when determining recognizance or bail in cases of domestic violence such as prior acts of violence or threats of violence, prior orders of protection, prior arrests or convictions for offenses against family or household members, prior violations of orders of protection, and access to firearms or a history of firearm use.

Section 14. Sets forth the effective date which shall be the first of November after the Bill becomes law.

Justification

Domestic violence is a societal problem of enormous prevalence and impact. It has been identified by the Surgeon General of the United States as the number one health problem affecting American women, and it floods the justice system of New York State as well as the courts of every other state in the nation.

New York State has been in the forefront of addressing this problem by passing many progressive laws over the past few decades, including the mandatory arrest law, the law creating the registry of orders of protection, a stalking law, and laws requiring judges to consider evidence of domestic violence in all child custody and visitation cases.

Further steps must be taken to address the nature of domestic violence and the cycle of violence that often repeatedly victimizes family members of batterers for many years. Strong deterrence for repeated acts of domestic violence is warranted and necessary. This bill provides such deterrence.

The Bill enacts enhanced penalties for violent conduct by previously convicted offenders. These enhanced penalties are for the most common domestic violence crimes - assaults and violation of court orders.

According to the Division of Criminal Justice Services (DCJS), 2010 statistics on domestic violence there were 28,938 domestic violence victims in NYC. Of those victims, 22,945 or virtually 80% were victims of Assault 3rd degree and related offenses or violations of an order of protection. In the 57 counties outside of New York City the numbers are even more dramatic. Of the 53,361 domestic violence victims 48,166 or 90% of all domestic violence victims experienced assault in the 3rd degree or a violation of a protective order. These offenses impose a terrible and costly burden on the victims and society. Being a victim once is unacceptable but when an offender has a demonstrated violent history of past convictions and now brings that violence into the household, such person should be dealt with severely.

This Bill provides significant penalties in an effort to deter acts of violence and repeated abuse in the home. By enhancing penalties for the most common domestic violence crimes like Assault in the 3rd degree and Violation of Orders of Protection the bill addresses the real problems facing domestic violence victims. Violation of an order of protection on a repeated basis warrants felony treatment. This bill makes repeat violations of court orders in Criminal contempt in the first degree to a "D" felony. And also raises Aggravated Criminal contempt from a "D" to a "C" felony while making both offenses violent felonies thus enhancing the sentencing to

determinate VFO sentences. This Bill also enhances penalties for Assault in the 3rd degree the most common domestic violence crime if committed by a batterer with a certain prior convictions. A simple or misdemeanor assault committed by such person against a family member is raised to a class "D" felony, Assault in the second degree.

Another area of important area of concern regarding domestic violence that also needs to be strengthened are New York's bail provisions. Perpetrators of domestic violence offenses are often set free on low or no bail and thereby allowed to stalk, harm and sometimes kill their specifically targeted victims. In December 2002, a perpetrator of domestic violence was released on $1,500 bail by a city judge in Westchester County after an attempted assault with a gun on his former girlfriend. Within days after his release on bail, the perpetrator shot his former girlfriend in the head and killed himself. As recently as July 2010, a similar tragic incident occurred in Dutchess County when the perpetrator killed his wife before turning the gun on himself. This incident occurred only days after his release on bail, following one month in jail stemming from an incident of domestic violence.

If judges determining recognizance and bail in domestic violence cases were required to consider well established risk factors to the victim such as a history of violence or threats of violence. prior orders of protection, and the accused's access to guns, many victims and their children would be spared additional harm and, in some tragic incidences, their lives.

The bail statute currently does not consider the unique nature of domestic violence cases. The criminal who commits a street crime against a stranger, for example, is not likely to target the victim for additional criminal activity while the case is pending and afterwards. Precisely the reverse is true for domestic violence perpetrators, who are highly likely to do so. Those who commit acts of domestic violence do so to exercise power and control over their specific victim, with whom they have a relationship. Domestic violence has a high rate of recidivism,and tends to escalate in frequency and severity over time. The initiation of a court case against the perpetrator is a high risk time for the victim, who is perceived by the abuser as trying to escape the relationship. Perpetrators often threaten and harm their victims during the pendency of the case in order to force them not to cooperate with the prosecution and to reconcile.

New York law should permit bail determinations to be used when necessary to protect witnesses. Domestic violence witnesses are highly likely to be targeted by the perpetrator for further threats or harm. Thus, in domestic violence cases, it is essential that the judge determining recognizance or bail consider factors that indicate a risk of harm to the victim-witness. This bill offers guidance to judges by specifying factors including prior acts of violence or

threats of violence, prior orders of protection, prior arrests or convictions for offenses against intimates or family members, prior violations of orders of protection,and access to firearms.

Finally, this Bill holds persons convicted of domestic violence offenses accountable by requiring the batterer to pay a domestic violence assistance fee. This fee will provide needed revenue for the training of police officers and the office of prevention of Domestic violence.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.