NY Crim Pro L § 530.12 (2021)
2021 New York Laws CPL - Criminal Procedure Part 3 - Special Proceedings and Miscellaneous Procedures Title P - Procedures for Securing Attendance at Criminal Actions and Proceedings of Defendants and Witnesses Under Control of Court--Recognizance, Bail Article 530 - Orders of Recognizance or Bail With Respect to Defendants in Criminal Actions and Proceedings--When and by What Courts Authorized 530.12 - Protection for Victims of Family Offenses.

§ 530.12 Protection for victims of family offenses.   1.  When  a  criminal action is pending involving a complaint charging any crime or violation  between  spouses,  former  spouses,  parent  and child, or between members of the same family or household, as members of the  same  family or household are defined in subdivision one of section 530.11 of this article, the court,  in  addition  to  any  other  powers conferred  upon  it  by  this  chapter  may  issue  a temporary order of protection  in  conjunction  with  any  securing  order  committing  the defendant  to  the custody of the sheriff or as a condition of any order of recognizance or bail or an adjournment in contemplation of dismissal.  (a) In addition to any other conditions, such an order may require the defendant: (1) to stay away from the home, school, business or place  of employment  of  the  family  or  household  member  or of any designated witness, provided that the court shall make a determination,  and  shall state such determination in a written decision or on the record, whether to  impose  a  condition  pursuant  to this paragraph, provided further, however, that failure to make such a determination shall not affect  the validity   of  such  temporary  order  of  protection.  In  making  such determination, the court shall consider, but shall  not  be  limited  to consideration of, whether the temporary order of protection is likely to achieve  its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcohol abuse, and access to weapons;  (2) to permit a parent, or a person entitled to visitation by a  court order or a separation agreement, to visit the child at stated periods;  (3)  to  refrain  from  committing  a  family  offense,  as defined in subdivision one of section 530.11  of  this  article,  or  any  criminal offense  against  the child or against the family or household member or against any person to whom custody of the  child  is  awarded,  or  from harassing, intimidating or threatening such persons;  (4)  to  refrain  from  acts  of commission or omission that create an unreasonable risk to the health, safety and welfare of a  child,  family or household member's life or health;  (5)  to  permit  a  designated  party  to enter the residence during a specified period of time in order to remove personal belongings  not  in issue in this proceeding or in any other proceeding or action under this chapter, the family court act or the domestic relations law;  (6)  (A)  to  refrain  from intentionally injuring or killing, without justification, any companion animal the defendant  knows  to  be  owned, possessed,  leased, kept or held by the victim or a minor child residing in the household.  (B) "Companion animal", as used in this section, shall have  the  same meaning  as  in  subdivision  five of section three hundred fifty of the agriculture and markets law;  (7) (A) to promptly return specified identification documents  to  the protected  party,  in  whose  favor the order of protection or temporary order of protection is issued; provided, however, that such  order  may: (i)  include  any appropriate provision designed to ensure that any such document is available for  use  as  evidence  in  this  proceeding,  and available if necessary for legitimate use by the party against whom such order  is issued; and (ii) specify the manner in which such return shall be accomplished.  (B) For purposes of this subparagraph, "identification document" shall mean any of the following: (i) exclusively in the name of the  protected party:   birth  certificate,  passport,  social  security  card,  health insurance or other benefits card, a card  or  document  used  to  access bank,  credit  or  other financial accounts or records, tax returns, any driver's license, and immigration documents including but not limited to  a United States permanent resident  card  and  employment  authorization document; and (ii) upon motion and after notice and an opportunity to be heard,  any of the following, including those that may reflect joint use or   ownership,   that  the  court  determines  are  necessary  and  are appropriately transferred to the protected party: any card  or  document used  to access bank, credit or other financial accounts or records, tax returns, and any other identifying cards and documents;  (8) (A) to refrain from remotely  controlling  any  connected  devices affecting  the  home, vehicle or property of the person protected by the order.  (B) For purposes of this subparagraph, "connected device"  shall  mean any  device,  or  other physical object that is capable of connecting to the internet, directly or indirectly, and that is assigned  an  internet protocol address or bluetooth address.  (b)  The  court  may  issue  an order, pursuant to section two hundred twenty-seven-c of the real property law, authorizing the party for whose benefit any order of protection has been issued to terminate a lease  or rental  agreement  pursuant to section two hundred twenty-seven-c of the real property law.   2. Notwithstanding any other provision of law, a  temporary  order  of protection  issued  or  continued  by a family court pursuant to section eight hundred thirteen of the family court act shall continue in effect, absent action by the appropriate criminal court pursuant to  subdivision three  of  this  section,  until  the  defendant  is  arraigned  upon an accusatory instrument filed pursuant to section eight  hundred  thirteen of the family court act in such criminal court.   3.  The  court may issue a temporary order of protection ex parte upon the filing of an accusatory instrument and for good cause shown. When  a family  court  order of protection is modified, the criminal court shall forward a copy of such modified order to the family  court  issuing  the original  order  of  protection; provided, however, that where a copy of the modified order is transmitted to the family court  by  facsimile  or other  electronic  means,  the  original copy of such modified order and accompanying affidavit shall be forwarded immediately thereafter.   3-a. Emergency powers when family court not in  session;  issuance  of temporary  orders  of  protection. Upon the request of the petitioner, a local criminal court may on an ex parte basis issue a temporary order of protection pending a hearing in family  court,  provided  that  a  sworn affidavit, verified in accordance with subdivision one of section 100.30 of this chapter, is submitted: (i) alleging that the family court is not in  session;  (ii)  alleging  that  a  family  offense,  as  defined  in subdivision one of section eight hundred twelve of the family court  act and  subdivision  one  of  section  530.11  of  this  article,  has been committed; (iii) alleging that a family offense petition has been  filed or  will  be  filed  in  family  court  on  the next day the court is in session; and (iv)  showing  good  cause.  Upon  appearance  in  a  local criminal  court,  the  petitioner  shall  be  advised that he or she may continue with the proceeding either in family court or upon  the  filing of  a  local  criminal  court accusatory instrument in criminal court or both. Upon issuance of a temporary order of protection where  petitioner requests that it be returnable in family court, the local criminal court shall  transfer  the matter forthwith to the family court and shall make the matter returnable in family court on the next day the  family  court is  in  session,  or  as soon thereafter as practicable, but in no event more than four calendar days after issuance  of  the  order.  The  local criminal  court, upon issuing a temporary order of protection returnable in family court pursuant to this subdivision, shall immediately forward, in a manner designed to insure arrival before the return date set in the  order, a copy of the temporary order of protection and  sworn  affidavit to  the family court and shall provide a copy of such temporary order of protection to the petitioner; provided, however, that where  a  copy  of the  temporary  order of protection and affidavit are transmitted to the family court by facsimile or other electronic means, the original  order and  affidavit  shall  be  forwarded  to  the  family  court immediately thereafter. Any temporary order of protection issued  pursuant  to  this subdivision shall be issued to the respondent, and copies shall be filed as  required in subdivisions six and eight of this section for orders of protection issued pursuant to  this  section.  Any  temporary  order  of protection  issued  pursuant to this subdivision shall plainly state the date that such order expires which, in the case of an  order  returnable in  family  court,  shall  be not more than four calendar days after its issuance, unless sooner vacated or  modified  by  the  family  court.  A petitioner  requesting  a  temporary  order  of protection returnable in family court pursuant to this subdivision in a case in  which  a  family court  petition has not been filed shall be informed that such temporary order of protection shall expire as  provided  for  herein,  unless  the petitioner files a petition pursuant to subdivision one of section eight hundred  twenty-one of the family court act on or before the return date in family court and  the  family  court  issues  a  temporary  order  of protection  or  order of protection as authorized under article eight of the family court  act.  Nothing  in  this  subdivision  shall  limit  or restrict  the  petitioner's  right to proceed directly and without court referral in either a criminal or family court, or both, as provided  for in  section  one  hundred  fifteen  of  the family court act and section 100.07 of this chapter.   3-b. Emergency powers when family court not in session;  modifications of  orders  of  protection  or  temporary orders of protection. Upon the request of the petitioner, a local criminal court may  on  an  ex  parte basis  modify  a  temporary  order  of protection or order of protection which has been issued under article four, five,  six  or  eight  of  the family  court  act  pending  a  hearing in family court, provided that a sworn affidavit verified in accordance with subdivision one  of  section 100.30  of this chapter is submitted: (i) alleging that the family court is not in session and (ii) showing good cause, including a showing  that the existing order is insufficient for the purposes of protection of the petitioner,  the  petitioner's child or children or other members of the petitioner's family or household. The local criminal  court  shall  make the  matter regarding the modification of the order returnable in family court on the next day the  family  court  is  in  session,  or  as  soon thereafter  as practicable, but in no event more than four calendar days after issuance of  the  modified  order.  The  court  shall  immediately forward a copy of the modified order, if any, and sworn affidavit to the family  court  and  shall provide a copy of such modified order, if any, and affidavit to the petitioner; provided, however, that where copies of such modified order and affidavit are transmitted to the family court by facsimile or  other  electronic  means,  the  original  copies  of  such modified  order  and  affidavit  shall  be forwarded to the family court immediately thereafter. Any modified temporary order  of  protection  or order  of protection issued pursuant to this subdivision shall be issued to the respondent and copies shall be filed as required in  subdivisions six  and  eight of this section for orders of protection issued pursuant to this section.   4. The court may issue or extend a temporary order  of  protection  ex parte or on notice simultaneously with the issuance of a warrant for the arrest  of defendant. Such temporary order of protection may continue in  effect until  the  day  the  defendant  subsequently  appears  in  court pursuant to such warrant or voluntarily or otherwise.   5.  * Upon  sentencing  on  a  conviction  for  any crime or violation between spouses, between a parent and child, or between members  of  the same family or household as defined in subdivision one of section 530.11 of  this  article,  the  court may in addition to any other disposition, including a conditional discharge  or  youthful  offender  adjudication, enter  an order of protection. Where a temporary order of protection was issued, the court shall state on the record the reasons for  issuing  or not  issuing an order of protection. The duration of such an order shall be fixed by the court and: (A) in the case of a felony conviction, shall not exceed the greater of:  (i)  eight  years  from  the  date  of  such sentencing,  except  where  the  sentence  is  or includes a sentence of probation on a conviction for a felony sexual assault,  as  provided  in subparagraph  (iii)  of  paragraph  (a)  of subdivision three of section 65.00 of the penal law, in which case, ten years from the date  of  such sentencing,  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 (B) in the case of a conviction for a  class  A misdemeanor, shall not exceed the greater of: (i) five years from the date of such  sentencing,  except  where  the  sentence  is  or includes  a  sentence  of  probation  on  a conviction for a misdemeanor sexual assault, as provided in subparagraph (ii)  of  paragraph  (b)  of subdivision  three of section 65.00 of the penal law, in which case, six years from the date of such sentencing, or (ii) five years from the date of the expiration of the maximum term of a definite or intermittent term actually imposed; or (C) in the case  of  a  conviction  for  any  other offense, shall not exceed the greater of: (i) two years from the date of sentencing,  or  (ii)  two  years from the date of the expiration of the maximum term of a definite or intermittent term  actually  imposed.  For purposes  of  determining the duration of an order of protection entered pursuant to this subdivision, a conviction shall be deemed to include  a conviction  that  has been replaced by a youthful offender adjudication. In addition to any other conditions,  such  an  order  may  require  the defendant:   * NB Effective until September 1, 2023   * Upon  sentencing  on a conviction for any crime or violation between spouses, between a parent and child, or  between  members  of  the  same family  or  household as defined in subdivision one of section 530.11 of this article, the court  may  in  addition  to  any  other  disposition, including  a  conditional  discharge  or youthful offender adjudication, enter an order of protection. Where a temporary order of protection  was issued,  the  court shall state on the record the reasons for issuing or not issuing an order of protection. The duration of such an order  shall be fixed by the court and, in the case of a felony conviction, shall not exceed  the greater of: (i) five years from the date of such sentencing, or (ii) three years from the date of the expiration of the maximum  term of an indeterminate sentence of imprisonment actually imposed; or in the case  of  a conviction for a class A misdemeanor, shall not exceed three years from the date of such sentencing; or in the case of  a  conviction for  any  other  offense,  shall  not  exceed  one year from the date of sentencing. For purposes of determining the  duration  of  an  order  of protection  entered  pursuant to this subdivision, a conviction shall be deemed to include a conviction that has  been  replaced  by  a  youthful offender  adjudication.  In  addition  to  any other conditions, such an order may require the defendant:   * NB Effective September 1, 2023  (a) to  stay  away  from  the  home,  school,  business  or  place  of employment  of  the  family or household member, the other spouse or the child, or of any witness designated by  the  court,  provided  that  the court  shall make a determination, and shall state such determination in a  written  decision  or  on  the  record, whether to impose a condition pursuant to this paragraph, provided further, however, that  failure  to make such a determination shall not affect the validity of such order of protection.  In making such determination, the court shall consider, but shall  not  be  limited  to  consideration  of,  whether  the  order  of protection is likely to achieve its purpose in the  absence  of  such  a condition,   conduct  subject  to  prior  orders  of  protection,  prior incidents of abuse, extent of past or present injury, threats,  drug  or alcohol abuse, and access to weapons;  (b)  to permit a parent, or a person entitled to visitation by a court order or a separation agreement, to visit the child at stated periods;  (c) to refrain  from  committing  a  family  offense,  as  defined  in subdivision  one  of  section  530.11  of  this article, or any criminal offense against the child or against the family or household  member  or against  any  person  to  whom  custody of the child is awarded, or from harassing, intimidating or threatening such persons;  (d) to refrain from acts of commission  or  omission  that  create  an unreasonable  risk  to the health, safety and welfare of a child, family or household member's life or health;  (e) to permit a designated party  to  enter  the  residence  during  a specified  period  of time in order to remove personal belongings not in issue in this proceeding or in any other proceeding or action under this chapter, the family court act or the domestic relations law; or  (f) (i) to refrain from remotely  controlling  any  connected  devices affecting  the  home, vehicle or property of the person protected by the order.  (ii) For purposes of this paragraph, "connected device" shall mean any device, or other physical object that is capable of  connecting  to  the internet,  directly  or  indirectly,  and  that  is assigned an internet protocol address or bluetooth address.   6. An order of protection or a temporary order  of  protection  issued pursuant  to  subdivision  one, two, three, four or five of this section shall bear in a conspicuous manner the term  "order  of  protection"  or "temporary  order  of protection" as the case may be and a copy shall be filed by the clerk of the court with the sheriff's office in the  county in  which the complainant resides, or, if the complainant resides within a city, with the police department of such city. The order of protection or temporary order  of  protection  shall  also  contain  the  following notice:  "This  order  of  protection  will remain in effect even if the protected party has, or consents to have, contact or communication  with the party against whom the order is issued. This order of protection can only  be modified or terminated by the court. The protected party cannot be held to violate  this  order  nor  be  arrested  for  violating  this order.".  The  absence of such language shall not affect the validity of such order. A copy of such order of protection  or  temporary  order  of protection may from time to time be filed by the clerk of the court with any  other  police department or sheriff's office having jurisdiction of the residence, work place, and school of anyone intended to be protected by such order. A copy of the order may also be filed by the  complainant at   the  appropriate  police  department  or  sheriff's  office  having jurisdiction. Any subsequent amendment or revocation of such order shall be filed in the same manner as herein provided.   Such order of protection shall plainly state the date that such  order expires.    6-a.  The  court shall inquire as to the existence of any other orders of protection between the defendant and the person or persons  for  whom the order of protection is sought.   7.  A  family  offense subject to the provisions of this section which occurs subsequent to the issuance of an order of protection  under  this chapter shall be deemed a new offense for which the complainant may seek to file a new accusatory instrument and may file a family court petition under  article  eight of the family court act as provided for in section 100.07 of this chapter.   8. In any proceeding in which an  order  of  protection  or  temporary order of protection or a warrant has been issued under this section, the clerk  of  the  court  shall  issue to the complainant and defendant and defense counsel and to any other person affected by the order a copy  of the order of protection or temporary order of protection and ensure that a  copy  of  the order of protection or temporary order of protection be transmitted to the local correctional facility where the  individual  is or  will be detained, the state or local correctional facility where the individual is or will  be  imprisoned,  and  the  supervising  probation department  or department of corrections and community supervision where the  individual  is  under  probation   or   parole   supervision.   The presentation  of  a copy of such order or a warrant to any peace officer acting pursuant to his or her special duties  or  police  officer  shall constitute  authority for him or her to arrest a person who has violated the terms of such order and bring such  person  before  the  court  and, otherwise,  so  far  as lies within his or her power, to aid in securing the protection such order was intended to afford. The protected party in whose favor the order of protection or temporary order of protection  is issued  may  not  be held to violate an order issued in his or her favor nor may such protected party be arrested for violating such order.   9. If no warrant, order or temporary  order  of  protection  has  been issued  by  the  court,  and  an  act  alleged to be a family offense as defined in section 530.11 of this chapter is the basis  of  the  arrest, the  magistrate  shall  permit  the  complainant  to  file  a  petition, information or accusatory instrument and  for  reasonable  cause  shown, shall  thereupon  hold  such  respondent  or defendant, admit to, fix or accept bail, or parole him or her for hearing before the family court or appropriate criminal court as the complainant shall choose in accordance with the provisions of section 530.11 of this chapter.   10. Punishment for contempt based  on  a  violation  of  an  order  of protection  or  temporary  order  of  protection  shall  not  affect the original criminal  action,  nor  reduce  or  diminish  a  sentence  upon conviction  for the original crime or violation alleged therein or for a lesser included offense thereof.   11. If a defendant is brought before the court for failure to obey any lawful order issued under this section, or an order of protection issued by a court of competent jurisdiction in another  state,  territorial  or tribal  jurisdiction,  and  if, after hearing, the court is satisfied by competent proof that the defendant has willfully failed to obey any such order, the court may:  (a) revoke an order of  recognizance  or  release  under  non-monetary conditions  or  revoke an order of bail or order forfeiture of such bail and commit the defendant to custody; or  (b)  restore  the  case  to  the  calendar  when  there  has  been  an adjournment  in  contemplation  of dismissal and commit the defendant to custody; or  (c) revoke a conditional discharge in accordance with  section  410.70 of this chapter and impose probation supervision or impose a sentence of  imprisonment  in  accordance  with  the  penal law based on the original conviction; or  (d) revoke probation in accordance with section 410.70 of this chapter and  impose  a sentence of imprisonment in accordance with the penal law based on  the  original  conviction.  In  addition,  if  the  act  which constitutes  the violation of the order of protection or temporary order of protection is a crime or a violation the  defendant  may  be  charged with and tried for that crime or violation.   12. The chief administrator of the courts shall promulgate appropriate uniform temporary orders of protection and orders of protection forms to be  used  throughout  the  state.  Such  forms  shall be promulgated and developed in a manner to ensure the compatability of such forms with the statewide computerized registry  established  pursuant  to  section  two hundred twenty-one-a of the executive law.   13.  Notwithstanding the foregoing provisions, an order of protection, or temporary order of protection when applicable, may be entered against a former spouse and persons who have a child in  common,  regardless  of whether  such  persons  have  been married or have lived together at any time, or against a member of the same family or household as defined  in subdivision one of section 530.11 of this article.   14. The people shall make reasonable efforts to notify the complainant alleging  a  crime  constituting  a  family offense when the people have decided to decline prosecution of such crime, to  dismiss  the  criminal charges  against  the  defendant  or to enter into a plea agreement. The people shall advise the complainant of the right to file a  petition  in the  family court pursuant to section 100.07 of this chapter and section one hundred fifteen of the family court act.   In any case where allegations of criminal conduct are transferred from the family court to the criminal court pursuant  to  paragraph  (ii)  of subdivision  (b)  of section eight hundred forty-six of the family court act, the people shall advise the family court making the transfer of any decision to file an  accusatory  instrument  against  the  family  court respondent  and  shall  notify  such  court  of  the disposition of such instrument and the sentence, if any, imposed upon such respondent.   Release of a defendant from custody shall not be  delayed  because  of the requirements of this subdivision.   15. Any motion to vacate or modify an order of protection or temporary order  of  protection shall be on notice to the non-moving party, except as provided in subdivision three-b of this section.