What's happening
This bill increases penalties for domestic violence-related crimes, adds new domestic violence victim fees, and strengthens bail and sentencing considerations.
Why it matters
Creates tougher repeat-offender penalties for domestic violence. The bill makes it a felony to commit certain harassment, assault, or strangulation crimes against a family or household member if the perpetrator has prior convictions for similar offenses within the past ten years, aiming to deter repeat domestic abusers and recognize patterns of escalating violence.
Adds a dedicated domestic violence victim fee. Convicted offenders in domestic violence cases would have to pay a new $250 fee, with the proceeds earmarked specifically for law enforcement training on domestic violence—providing a sustainable funding source for improved response and support.
Expands judicial discretion on bail and sentencing in domestic violence cases. Judges must now consider a defendant's history of violence, prior protection orders, prior arrests/convictions, and firearm use when setting bail for crimes against family or household members, increasing emphasis on victim safety and likelihood of witness intimidation.
Reclassifies certain domestic violence-related crimes as more serious felonies. The bill raises the felony class of some domestic violence offenses (e.g., menacing in the first degree, criminal contempt, aggravated criminal contempt), leading to longer potential prison sentences and signaling the state’s intent to treat these crimes with increased severity.
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Who cares
Headline styles
Increase Domestic Violence Penalties
Plain English, a few words. Used as the page title.
Sponsors
2 Co-sponsors
History
- Reported and committed to finance
- Referred to codes
- Reported and committed to finance
- Referred to codes
Full text
8 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
294
2017-2018 Regular Sessions
IN SENATE (Prefiled)
January 4, 2017
Introduced by Sen. ROBACH -- read twice and ordered printed, and when printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to enhancing punishment for crimes involving domestic violence; and to amend the criminal procedure law, in relation to the consideration of certain factors when determining the issuance of an order of recognizance or bail
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Subdivision 5 of section 240.30 of the penal law, as amended by chapter 188 of the laws of 2014, is amended to read as follows:
5. He or she commits the crime of harassment in the first degree or second degree and has previously been convicted of the crime of harassment in the first degree or second degree as defined by section 240.25 or 240.26 of this article within the preceding ten years.
§ 2. The section heading, opening paragraph and closing paragraph of section 240.31 of the penal law, as amended by chapter 49 of the laws of 2006, are amended to read as follows:
[Aggravated] Bias related aggravated harassment [in the first degree].
A person is guilty of bias related aggravated harassment [in the first degree] when with intent to harass, annoy, threaten or alarm another person, because of a belief or perception regarding such person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless of whether the belief or perception is correct, he or she:
[Aggravated] Bias related aggravated harassment [in the first degree] is a class E felony.
§ 3. The penal law is amended by adding a new section 240.29 to read as follows: § 240.29 Aggravated harassment in the first degree.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03050-01-7
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A person is guilty of a aggravated harassment in the first degree when with intent to harass, annoy, threaten, or alarm another person, he or she commits the crime of aggravated harassment in the second degree in the manner proscribed by the provisions of subdivision one, two or five of section 240.30 of this article and has previously been convicted of the crime of aggravated harassment in the second degree for the commission of conduct proscribed by the provisions of subdivision one, two or five of section 240.30 of this article within the preceding ten years and such person is a member of the same family or household as the person upon whom the present offense is committed. For the purposes of this subdivision "members of the same family or household" shall have the same meaning as is defined in section 530.11 of the criminal procedure law.
Aggravated harassment in the first degree is a class E felony.
§ 4. Section 120.05 of the penal law is amended by adding a new subdivision 15 to read as follows:
15. Such person commits the crime of assault in the third degree as defined in section 120.00 of this article against another person and such person has been previously convicted of any offense defined by any of the following provisions of this chapter: section 120.00 (assault in the third degree); section 120.05 (assault in the second degree); section 120.10 (assault in the first degree); section 120.12 (aggravated assault upon a person less than eleven years old); section 120.13 (menacing in the first degree); section 120.14 (menacing in the second degree); section 120.15 (menacing in the third degree); section 120.20 (reckless endangerment in the second degree); section 120.25 (reckless endangerment in the first degree); section 121.12 (strangulation in the second degree); section 121.13 (strangulation in the first degree); subdivision one of section 125.15 (manslaughter in the second degree); subdivision one, two or four of section 125.20 (manslaughter in the first degree); section 125.25 (murder in the second degree); section 120.45 (stalking in the fourth degree); section 120.50 (stalking in the third degree); section 120.55 (stalking in the second degree); section 120.60 (stalking in the first degree); subdivision one of section 130.35 (rape in the first degree); subdivision one of section 130.50 (criminal sexual act in the first degree); subdivision one of section 130.65 (sexual abuse in the first degree); paragraph (a) of subdivision one of section 130.67 (aggravated sexual abuse in the second degree); paragraph (a) of subdivision one of section 130.70 (aggravated sexual abuse in the first degree); section 135.05 (unlawful imprisonment in the second degree); section 135.10 (unlawful imprisonment in the first degree); section 135.20 (kidnapping in the second degree); section 135.25 (kidnapping in the first degree); section 135.60 (coercion in the second degree); section 135.65 (coercion in the first degree); section 140.10 (criminal trespass in the third degree); section 140.15 (criminal trespass in the second degree); section 140.17 (criminal trespass in the first degree); section 140.20 (burglary in the third degree); section 140.25 (burglary in the second degree); section 140.30 (burglary in the first degree); section 145.00 (criminal mischief in the fourth degree); section 145.05 (criminal mischief in the third degree); section 145.10 (criminal mischief in the second degree); section 145.12 (criminal mischief in the first degree); section 150.05 (arson in the fourth degree); section 150.10 (arson in the third degree); section 150.15 (arson in the second degree); section 150.20 (arson in the first degree); section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third
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degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the first degree); section 160.05 (robbery in the third degree); section 160.10 (robbery in the second degree); section 160.15 (robbery in the first degree); section 240.25 (harassment in the first degree); subdivision one, two or five of section 240.30 (aggravated harassment in the second degree); or any attempt or conspiracy to commit any of the foregoing offenses, within the preceding ten years and such person is a member of the same family or household as the person upon whom the present offense is committed. For the purposes of this subdivision "members of the same family or household" shall have the same meaning as is defined in section 530.11 of the criminal procedure law.
§ 5. Section 121.12 of the penal law, as added by chapter 405 of the laws of 2010, is amended to read as follows: § 121.12 Strangulation in the second degree.
A person is guilty of strangulation in the second degree when he or she: (1) commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment[.]; or
(2) commits the crime of criminal obstruction of breathing or blood circulation as defined in section 121.11 of this article and such person has previously been convicted within the preceding ten years of criminal obstruction of breathing or blood circulation; and such person is a member of the same family or household as the person upon whom the present crime of criminal obstruction of breathing or blood circulation is committed. For the purposes of this subdivision "members of the same family or household" shall have the same meaning as is defined in section 530.11 of the criminal procedure law.
Strangulation in the second degree is a class D felony.
§ 6. Section 120.13 of the penal law, as amended by chapter 765 of the laws of 2005, is amended to read as follows: § 120.13 Menacing in the first degree.
A person is guilty of menacing in the first degree when he or she commits the crime of menacing in the second degree and has been previously convicted of the crime of menacing in the second degree or the crime of menacing a police officer or peace officer within the preceding ten years.
Menacing in the first degree is a class [E] D felony.
§ 7. Subdivision (c) of section 215.51 of the penal law, as amended by chapter 349 of the laws of 2006, is amended to read as follows:
(c) he or she commits the crime of criminal contempt in the second degree as defined in subdivision three of section 215.50 of this article by violating [that part of] a duly served order of protection, or such order of which the defendant has actual knowledge because he or she was present in court when such order was issued, under sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of the criminal procedure law, or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, [which requires the respondent or defendant to stay away from the person or persons on whose behalf the order was issued,] and where the defendant has been previously convicted of the crime of aggravated criminal contempt or criminal contempt in the first or second degree for violating an order of protection [as described herein] within the preceding [five] ten years; or
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§ 8. The closing paragraph of section 215.51 of the penal law, as amended by chapter 222 of the laws of 1994, is amended to read as follows:
Criminal contempt in the first degree is a class [E] D felony.
§ 9. Subdivisions 1, 2 and 3 of section 60.35 of the penal law, as amended by section 1 of part E of chapter 56 of the laws of 2004, subparagraphs (i), (ii) and (iii) of paragraph (a) of subdivision 1 as amended by section 1 of part DD of chapter 56 of the laws of 2008 and paragraph (b) of subdivision 1 as amended by chapter 320 of the laws of 2006, are amended to read as follows:
1. (a) Except as provided in section eighteen hundred nine of the vehicle and traffic law and section 27.12 of the parks, recreation and historic preservation law, whenever proceedings in an administrative tribunal or a court of this state result in a conviction for a felony, a misdemeanor, or a violation, as these terms are defined in section 10.00 of this chapter, there shall be levied at sentencing a mandatory surcharge, sex offender registration fee, DNA databank fee [and], a crime victim assistance fee and a domestic violence victim assistance fee in addition to any sentence required or permitted by law, in accordance with the following schedule:
(i) a person convicted of a felony shall pay a mandatory surcharge of three hundred dollars and a crime victim assistance fee of twenty-five dollars;
(ii) a person convicted of a misdemeanor shall pay a mandatory surcharge of one hundred seventy-five dollars and a crime victim assistance fee of twenty-five dollars;
(iii) a person convicted of a violation shall pay a mandatory surcharge of ninety-five dollars and a crime victim assistance fee of twenty-five dollars;
(iv) a person convicted of a sex offense as defined by subdivision two of section one hundred sixty-eight-a of the correction law or a sexually violent offense as defined by subdivision three of section one hundred sixty-eight-a of the correction law shall, in addition to a mandatory surcharge and crime victim assistance fee, pay a sex offender registration fee of fifty dollars[.];
(v) a person convicted of a designated offense as defined by subdivision seven of section nine hundred ninety-five of the executive law shall, in addition to a mandatory surcharge and crime victim assistance fee, pay a DNA databank fee of fifty dollars[.];
(vi) a person convicted of any offense where the complainant of such offense is a member of the same family or household as the convicted person shall, in addition to a mandatory surcharge and crime victim assistance fee, pay any other fee required by this article, and pay a domestic violence victim assistance fee in the amount of two hundred fifty dollars. For the purposes of this subdivision, "member of the same family or household" shall have the same meaning as defined in section 530.11 of the criminal procedure law.
(b) When the felony or misdemeanor conviction in subparagraphs (i), (ii) or (iv) of paragraph (a) of this subdivision results from an offense contained in article one hundred thirty of this chapter, incest in the third, second or first degree as defined in sections 255.25, 255.26 and 255.27 of this chapter or an offense contained in article two hundred sixty-three of this chapter, the person convicted shall pay a supplemental sex offender victim fee of one thousand dollars in addition to the mandatory surcharge and any other fee.
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Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the penal law, in relation to enhancing punishment for crimes involving domestic violence; and to amend the criminal procedure law, in relation to the consideration of certain factors when determining the issuance of an order of recognizance or bail
Purpose
This legislation will protect victims of domestic violence by providing enhanced penalties for those who habitually commit crimes against members of their family or household and hold such offenders accountable with stronger penalties in an effort to deter violence. This bill also protects victims during the pendency of the case and expands the criminal procedure law section 510.30 and requires courts, when determining recognizance or bail in cases of domestic violence, to consider certain enumerated factors which could lead to intimidation or injury by the principal to the victim or witness. Finally, the Bill provides that persons convicted of domestic violence will pay an additional domestic violence surcharge that will provide a stream of revenue to the Office of Prevention of Domestic Violence for the Purpose of training members of law enforcement in domestic violence issues.
Summary of provisions
Section 1. Amends Subdivision 5 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.
Read the full memo (1,821 words)
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 axe 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 haw 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.
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