NY Crim Pro L § 530.11 (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 530.11 - Procedures for Family Offense Matters.

§ 530.11 Procedures for family offense matters.   1.  Jurisdiction.  The family court and the criminal courts shall have concurrent jurisdiction over any proceeding concerning acts which  would constitute  disorderly conduct, unlawful dissemination or publication of an intimate image, harassment in the first  degree,  harassment  in  the second  degree,  aggravated  harassment  in  the  second  degree, sexual misconduct, forcible touching, sexual abuse in the third degree,  sexual abuse  in  the  second degree as set forth in subdivision one of section 130.60 of the penal law, stalking in the first degree, stalking  in  the second  degree,  stalking  in  the  third degree, stalking in the fourth degree, criminal mischief, menacing in the second  degree,  menacing  in the  third  degree,  reckless  endangerment,  strangulation in the first degree, strangulation in the  second  degree,  criminal  obstruction  of breathing or blood circulation, assault in the second degree, assault in the  third  degree,  an  attempted  assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in  the  third degree, coercion in the second degree or coercion in the third degree as set  forth  in  subdivisions one, two and three of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household except  that  if  the respondent would not be criminally responsible by reason of age pursuant to  section  30.00  of  the  penal law, then the family court shall have exclusive  jurisdiction  over   such   proceeding.   Notwithstanding   a complainant's  election  to  proceed in family court, the criminal court shall  not  be  divested  of  jurisdiction  to  hear  a  family  offense proceeding  pursuant  to  this  section.  For  purposes of this section, "disorderly conduct" includes disorderly conduct not in a public  place. For  purposes of this section, "members of the same family or household" with respect to a proceeding in  the  criminal  courts  shall  mean  the following:  (a) persons related by consanguinity or affinity;  (b) persons legally married to one another;  (c) persons formerly married to one another regardless of whether they still reside in the same household;  (d)  persons  who  have  a child in common, regardless of whether such persons have been married or have lived together at any time; and  (e) persons who are not related by consanguinity or affinity  and  who are  or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may  consider in  determining  whether  a  relationship  is an "intimate relationship" include but are not limited to: the  nature  or  type  of  relationship, regardless  of  whether  the  relationship  is  sexual  in  nature;  the frequency of interaction between the persons; and the  duration  of  the relationship.  Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall  be  deemed to constitute an "intimate relationship".   2.  Information  to petitioner or complainant. The chief administrator of the  courts  shall  designate  the  appropriate  probation  officers, warrant  officers,  sheriffs, police officers, district attorneys or any other law enforcement officials, to inform any petitioner or complainant bringing a proceeding under  this  section  before  such  proceeding  is commenced,  of  the  procedures  available for the institution of family offense proceedings, including but not limited to the following:  (a) That there is  concurrent  jurisdiction  with  respect  to  family offenses in both family court and the criminal courts;  (b)  That  a  family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence,  end  family  disruption  and  obtain  protection.  That  referrals  for counseling, or counseling services, are available through probation for this purpose;  (c)  That  a  proceeding  in the criminal courts is for the purpose of prosecution of the offender and can result in a criminal  conviction  of the offender;  (d)  That  a  proceeding  or  action subject to the provisions of this section is initiated  at  the  time  of  the  filing  of  an  accusatory instrument  or  family  court  petition,  not  at the time of arrest, or request for arrest, if any;  (f) That an arrest may precede the commencement of a family court or a criminal court proceeding, but  an  arrest  is  not  a  requirement  for commencing either proceeding.  (h)  At such time as the complainant first appears before the court on a complaint or information, the court shall advise the complainant  that the  complainant may: continue with the proceeding in criminal court; or have  the  allegations  contained  therein  heard  in  a  family   court proceeding;  or  proceed concurrently in both criminal and family court. Notwithstanding a complainant's election to proceed in family court, the criminal court shall not be divested of jurisdiction to  hear  a  family offense proceeding pursuant to this section;  (i)  Nothing herein shall be deemed to limit or restrict complainant's rights 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;   2-a.  Upon  the filing of an accusatory instrument charging a crime or violation described in subdivision one of this section  between  members of  the  same  family  or  household,  as such terms are defined in this section, or as soon as the complainant first appears before  the  court, whichever is sooner, the court shall advise the complainant of the right to  proceed  in both the criminal and family courts, pursuant to section 100.07 of this chapter.   3. Official responsibility. No official  or  other  person  designated pursuant  to subdivision two of this section shall discourage or prevent any person who wishes to file a petition or sign a complaint from having access to any court for that purpose.   4. When a person is arrested for  an  alleged  family  offense  or  an alleged  violation  of  an  order  of  protection  or temporary order of protection or arrested pursuant to a warrant issued by  the  supreme  or family  court, and the supreme or family court, as applicable, is not in session, such person shall be brought before a local criminal  court  in the  county  of  arrest  or  in  the  county  in  which  such warrant is returnable pursuant to article one hundred twenty of this chapter.  Such local  criminal  court  may issue any order authorized under subdivision eleven  of  section  530.12  of  this  article,  section   one   hundred fifty-four-d  or  one  hundred  fifty-five  of  the  family court act or subdivision three-b of section two hundred forty or subdivision two-a of section two hundred fifty-two of the domestic relations law, in addition to discharging other arraignment responsibilities as set forth  in  this chapter.  In  making such order, the local criminal court shall consider de novo the recommendation and securing  order,  if  any,  made  by  the supreme  or  family  court as indicated on the warrant or certificate of warrant. Unless the petitioner or complainant  requests  otherwise,  the court,  in  addition to scheduling further criminal proceedings, if any, regarding such alleged family offense  or  violation  allegation,  shall make  such  matter  returnable  in  the  supreme  or  family  court,  as applicable, on the next day such court is in session.    5. Filing and enforcement of  out-of-state  orders  of  protection.  A valid  order  of protection or temporary order of protection issued by a court of competent jurisdiction in another state, territorial or  tribal jurisdiction  shall be accorded full faith and credit and enforced as if it  were  issued  by  a  court within the state for as long as the order remains in  effect  in  the  issuing  jurisdiction  in  accordance  with sections  two  thousand  two  hundred  sixty-five  and  two thousand two hundred sixty-six of title eighteen of the United States Code.  (a) An order issued by a court of competent  jurisdiction  in  another state, territorial or tribal jurisdiction shall be deemed valid if:  (i)  the  issuing court had personal jurisdiction over the parties and over the subject matter under the law of the issuing jurisdiction;  (ii) the person against whom  the  order  was  issued  had  reasonable notice  and  an  opportunity to be heard prior to issuance of the order; provided, however, that if the order was a temporary order of protection issued in the absence of such person, that notice  had  been  given  and that  an  opportunity  to be heard had been provided within a reasonable period of time after the issuance of the order; and  (iii) in the case of orders  of  protection  or  temporary  orders  of protection  issued  against  both a petitioner, plaintiff or complainant and respondent or defendant, the order or portion thereof sought  to  be enforced  was  supported  by:  (A)  a  pleading  requesting  such order, including,  but  not  limited  to,   a   petition,   cross-petition   or counterclaim;  and  (B)  a judicial finding that the requesting party is entitled to the issuance of the order which may result from  a  judicial finding  of  fact,  judicial  acceptance  of  an  admission by the party against whom the order was issued or judicial  finding  that  the  party against  whom  the  order  was issued had given knowing, intelligent and voluntary consent to its issuance.  (b) Notwithstanding the provisions of article fifty-four of the  civil practice  law  and  rules,  an order of protection or temporary order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, accompanied  by  a  sworn  affidavit that  upon information and belief such order is in effect as written and has not been vacated or modified, may be  filed  without  fee  with  the clerk  of the court, who shall transmit information regarding such order to  the  statewide  registry  of  orders  of  protection  and   warrants established   pursuant  to  section  two  hundred  twenty-one-a  of  the executive law; provided, however, that such filing  and  registry  entry shall not be required for enforcement of the order.   6.  Notice.  Every  police officer, peace officer or district attorney investigating a family offense  under  this  article  shall  advise  the victim  of  the  availability  of  a  shelter  or  other services in the community, and shall immediately give the victim written notice  of  the legal  rights  and  remedies  available  to a victim of a family offense under the relevant provisions of this chapter and the family court  act. Such  notice  shall  be prepared, at minimum, in plain English, Spanish, Chinese and Russian and if necessary, shall  be  delivered  orally,  and shall  include  but  not  be limited to the information contained in the following statement:   "Are you the victim of domestic violence? If you need  help  now,  you can call 911 for the police to come to you. You can also call a domestic violence  hotline.  You can have a confidential talk with an advocate at the hotline about help you can get in your  community  including:  where you can get treatment for injuries, where you can get shelter, where you can  get  support,  and  what  you can do to be safe. The New York State 24-hour Domestic  &  Sexual  Violence  Hotline  number  is  (insert  the  statewide  multilingual  800  number).  They can give you information in many languages. If you are deaf or hard of hearing, call 711.   This is what the police can do:   They can help you and your children find a safe place such as a family or friend's house or a shelter in your community.   You  can ask the officer to take you or help you and your children get to a safe place in your community.   They can help connect you to a local domestic violence program.   They can help you get to a hospital or clinic for medical care.   They can help you get your personal belongings.   They must complete a report discussing the incident.  They  will  give you  a  copy  of  this  police report before they leave the scene. It is free.   They may, and sometimes must, arrest the person who harmed you if  you are  the victim of a crime. The person arrested could be released at any time, so it is important to plan for your safety.   If you have been abused or threatened, this is what you  can  ask  the police or district attorney to do:   File a criminal complaint against the person who harmed you.   Ask  the  criminal  court  to issue an order of protection for you and your child if the district attorney  files  a  criminal  case  with  the court.   Give  you  information  about filing a family offense petition in your local family court.   You also have the right to ask  the  family  court  for  an  order  of protection for you and your children.   This is what you can ask the family court to do:   To  have  your  family  offense  petition filed the same day you go to court.   To have your request heard in court the same day you file or the  next day court is open.   Only  a judge can issue an order of protection. The judge does that as part of a criminal or family court case against the  person  who  harmed you.  An  order  of  protection in family court or in criminal court can say:   That the other person have no contact or  communication  with  you  by mail, phone, computer or through other people.   That the other person stay away from you and your children, your home, job or school.   That  the  other  person  not  assault, harass, threaten, strangle, or commit another family offense against you or your children.   That the other person turn in their firearms  and  firearms  licenses, and not get any more firearms.   That you have temporary custody of your children.   That the other person pay temporary child support.   That the other person not harm your pets or service animals.   If  the  family  court  is closed because it is night, a weekend, or a holiday, you can go  to  a  criminal  court  to  ask  for  an  order  of protection.   If  you  do not speak English or cannot speak it well, you can ask the police, the district attorney, or the criminal or family  court  to  get you  an  interpreter  who speaks your language. The interpreter can help you explain what happened.   You can get the forms you need to ask for an order  of  protection  at your  local  family  court (insert addresses and contact information for courts). You can also get them online: www.NYCourts.gov/forms.   You do not need a lawyer to ask for an order of protection.    You have a right to get a lawyer in the family court.  If  the  family court  finds that you cannot afford to pay for a lawyer, it must get you one for free.   If you file a complaint or family court petition, you will be asked to swear to its truthfulness because it is a crime to file a legal document that you know is false."   The  division  of  criminal  justice services in consultation with the state office for the prevention of domestic violence shall  prepare  the form  of  such written notice consistent with provisions of this section and  distribute  copies  thereof  to  the  appropriate  law  enforcement officials   pursuant  to  subdivision  nine  of  section  eight  hundred forty-one of the executive law.   Additionally, copies of such notice shall be  provided  to  the  chief administrator  of  the  courts  to  be  distributed to victims of family offenses through the criminal court at such time as such  persons  first come  before  the  court  and  to  the  state  department  of health for distribution to all hospitals defined under article twenty-eight of  the public  health  law. No cause of action for damages shall arise in favor of any person by reason of any failure to comply with the provisions  of this  subdivision  except  upon a showing of gross negligence or willful misconduct.   7.  Rules  of  court  regarding  concurrent  jurisdiction.  The  chief administrator  of  the  courts, pursuant to paragraph (e) of subdivision two of section two hundred twelve of the judiciary law, shall promulgate rules to facilitate record sharing and other communication  between  the criminal  and  family  courts,  subject to applicable provisions of this chapter and the family court  act  pertaining  to  the  confidentiality, expungement and sealing of records, when such courts exercise concurrent jurisdiction over family offense proceedings.