Bill Text: NY A06202 | 2019-2020 | General Assembly | Introduced
Bill Title: Requires orders of protection and temporary orders of protection to be served upon the attorney representing the respondent; requires attorneys to accept service of such orders addressed to a client, and to provide notice thereof and the terms therein to the client.
Spectrum: Moderate Partisan Bill (Democrat 10-2)
Status: (Introduced - Dead) 2020-07-06 - enacting clause stricken [A06202 Detail]
Download: New_York-2019-A06202-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6202 2019-2020 Regular Sessions IN ASSEMBLY March 4, 2019 ___________ Introduced by M. of A. CRESPO -- Multi-Sponsored by -- M. of A. ARROYO, AUBRY, BARRON, COOK, CROUCH, McDONOUGH, PERRY, RAMOS, RIVERA, RODRI- GUEZ, WEPRIN -- read once and referred to the Committee on Judiciary AN ACT to amend the family court act and the criminal procedure law, in relation to requiring the service of temporary orders of protection and orders of protection upon the attorney representing the respondent or defendant The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 154-d of the family court act, as added by chapter 2 186 of the laws of 1997, is amended to read as follows: 3 § 154-d. Emergency powers; local criminal courts. 1. Issuance of 4 temporary orders of protection. Upon the request of the petitioner, a 5 local criminal court may on an ex parte basis issue a temporary order of 6 protection pending a hearing in family court, provided that a sworn 7 affidavit, certified in accordance with subdivision one of section 8 100.30 of the criminal procedure law is submitted: (i) alleging that the 9 family court is not in session; (ii) alleging that a family offense, as 10 defined in subdivision one of section eight hundred twelve of this act 11 or subdivision one of section 530.11 of the criminal procedure law, has 12 been committed; (iii) alleging that a family offense petition has been 13 filed or will be filed in family court on the next day the court is in 14 session; and (iv) showing good cause. Upon appearance in a local crimi- 15 nal court, the petitioner shall be advised that he or she may continue 16 with the proceeding either in family court or, upon the filing of a 17 local criminal court accusatory instrument, in criminal court or both. 18 Upon issuance of a temporary order of protection where petitioner 19 requests that it be returnable in family court, the local criminal court 20 shall transfer the matter forthwith to the family court and shall make 21 the matter returnable in family court on the next day the family court 22 is in session, or as soon thereafter as practicable, but in no event EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10194-01-9A. 6202 2 1 more than four calendar days after issuance of the order. The local 2 criminal court, upon issuing a temporary order of protection returnable 3 in family court pursuant to this subdivision shall immediately forward 4 in a manner designed to ensure arrival before the return date set in the 5 order, a copy of the temporary order of protection and sworn affidavit 6 to the family court and shall provide a copy of such temporary order of 7 protection to the petitioner; provided, however, that if the temporary 8 order of protection and affidavit are transmitted by facsimile or other 9 electronic means, the original order and affidavit shall be forwarded to 10 the family court immediately thereafter. Any temporary order of 11 protection issued pursuant to this subdivision shall be issued to the 12 respondent and the attorney representing the respondent, and copies 13 shall be filed as required in subdivisions six and eight of section 14 530.12 of the criminal procedure law for orders of protection issued 15 pursuant to such section. No attorney shall refuse to accept any such 16 order addressed to his or her respondent client, and such attorney shall 17 immediately provide notice to his or her client of the issuance of the 18 order and the terms of such order. Any temporary order of protection 19 issued pursuant to this subdivision shall plainly state the date that 20 such order expires which, in the case of an order returnable in family 21 court, shall be not more than four calendar days after its issuance, 22 unless sooner vacated or modified by the family court. A petitioner 23 requesting a temporary order of protection returnable in family court 24 pursuant to this subdivision in a case in which a family court petition 25 has not been filed shall be informed that such temporary order of 26 protection shall expire as provided for herein, unless the petitioner 27 files a petition pursuant to subdivision one of section eight hundred 28 twenty-one of this act on or before the return date in family court and 29 the family court issues a temporary order of protection as authorized 30 under article eight of this act. Nothing in this subdivision shall limit 31 or restrict the petitioner's right to proceed directly and without court 32 referral in either a criminal or family court, or both, as provided for 33 in section one hundred fifteen of this act and section 100.07 of the 34 criminal procedure law. 35 2. Modifications of orders of protection or temporary orders of 36 protection. Upon the request of the petitioner, a local criminal court 37 may on an ex parte basis modify a temporary order of protection or order 38 of protection which has been issued under article four, five, six or 39 eight of this act pending a hearing in family court, provided that a 40 sworn affidavit, verified in accordance with subdivision one of section 41 100.30 of the criminal procedure law, is submitted: (i) alleging that 42 the family court is not in session and (ii) showing good cause, includ- 43 ing a showing that the existing order is insufficient for the purposes 44 of protection of the petitioner, the petitioner's child or children or 45 other members of the petitioner's family or household. The local crimi- 46 nal court shall make the matter regarding the modification of the order 47 returnable in family court on the next day the family court is in 48 session, or as soon thereafter as practicable, but in no event more than 49 four calendar days after issuance of the modified order. The local crim- 50 inal court shall immediately forward, in a manner designed to ensure 51 arrival before the return date set in the order, a copy of the modified 52 order if any and sworn affidavit to the family court and shall provide a 53 copy of such modified order, if any, and affidavit to the petitioner; 54 provided, however, that if the modified order and affidavit are trans- 55 mitted to the family court by facsimile or other electronic means, the 56 original copy of such modified order and affidavit shall be forwarded toA. 6202 3 1 the family court immediately thereafter. Any modified temporary order of 2 protection or order of protection issued pursuant to this subdivision 3 shall be issued to the respondent and the attorney representing the 4 respondent, and copies shall be filed as provided in subdivisions six 5 and eight of section 530.12 of the criminal procedure law for orders of 6 protection issued pursuant to such section. No attorney shall refuse to 7 accept any such order addressed to his or her respondent client, and 8 such attorney shall immediately provide notice to his or her client of 9 the issuance of the order and the terms of such order. 10 § 2. Subdivision 1 of section 168 of the family court act, as amended 11 by chapter 416 of the laws of 1981, is amended to read as follows: 12 1. In any case in which an order of protection or temporary order of 13 protection has been made by the family court, the clerk of the court 14 shall issue a copy of such order to the petitioner [and], the 15 respondent, the attorney representing the respondent and to any other 16 person affected by the order. No attorney shall refuse to accept any 17 such order addressed to his or her respondent client, and such attorney 18 shall immediately provide notice to his or her client of the issuance of 19 the order and the terms of such order. The presentation of a copy of an 20 order of protection or temporary order of protection or a warrant or a 21 certificate of warrant to any peace officer, acting pursuant to his or 22 her special duties, or police officer shall constitute authority for him 23 or her to arrest a person charged with violating the terms of such order 24 of protection or temporary order of protection and bring such person 25 before the court and, otherwise, so far as lies within his or her power, 26 to aid in securing the protection such order was intended to afford, 27 provided, however, that any outstanding, unexpired certificate of order 28 of protection or temporary order of protection shall have the same force 29 and effect as a copy of such order or temporary order. 30 § 3. Subdivisions 3-a, 3-b and 8 of section 530.12 of the criminal 31 procedure law, subdivisions 3-a and 3-b as added by chapter 186 of the 32 laws of 1997 and subdivision 8 as amended by chapter 480 of the laws of 33 2013, are amended to read as follows: 34 3-a. Emergency powers when family court not in session; issuance of 35 temporary orders of protection. Upon the request of the petitioner, a 36 local criminal court may on an ex parte basis issue a temporary order of 37 protection pending a hearing in family court, provided that a sworn 38 affidavit, verified in accordance with subdivision one of section 100.30 39 of this chapter, is submitted: (i) alleging that the family court is not 40 in session; (ii) alleging that a family offense, as defined in subdivi- 41 sion one of section eight hundred twelve of the family court act and 42 subdivision one of section 530.11 of this article, has been committed; 43 (iii) alleging that a family offense petition has been filed or will be 44 filed in family court on the next day the court is in session; and (iv) 45 showing good cause. Upon appearance in a local criminal court, the peti- 46 tioner shall be advised that he or she may continue with the proceeding 47 either in family court or upon the filing of a local criminal court 48 accusatory instrument in criminal court or both. Upon issuance of a 49 temporary order of protection where petitioner requests that it be 50 returnable in family court, the local criminal court shall transfer the 51 matter forthwith to the family court and shall make the matter return- 52 able in family court on the next day the family court is in session, or 53 as soon thereafter as practicable, but in no event more than four calen- 54 dar days after issuance of the order. The local criminal court, upon 55 issuing a temporary order of protection returnable in family court 56 pursuant to this subdivision, shall immediately forward, in a mannerA. 6202 4 1 designed to insure arrival before the return date set in the order, a 2 copy of the temporary order of protection and sworn affidavit to the 3 family court and shall provide a copy of such temporary order of 4 protection to the petitioner; provided, however, that where a copy of 5 the temporary order of protection and affidavit are transmitted to the 6 family court by facsimile or other electronic means, the original order 7 and affidavit shall be forwarded to the family court immediately there- 8 after. Any temporary order of protection issued pursuant to this subdi- 9 vision shall be issued to the respondent and the attorney representing 10 the respondent, and copies shall be filed as required in subdivisions 11 six and eight of this section for orders of protection issued pursuant 12 to this section. No attorney shall refuse to accept any such order 13 addressed to his or her respondent client, and such attorney shall imme- 14 diately provide notice to his or her client of the issuance of the order 15 and the terms of such order. Any temporary order of protection issued 16 pursuant to this subdivision shall plainly state the date that such 17 order expires which, in the case of an order returnable in family court, 18 shall be not more than four calendar days after its issuance, unless 19 sooner vacated or modified by the family court. A petitioner requesting 20 a temporary order of protection returnable in family court pursuant to 21 this subdivision in a case in which a family court petition has not been 22 filed shall be informed that such temporary order of protection shall 23 expire as provided for herein, unless the petitioner files a petition 24 pursuant to subdivision one of section eight hundred twenty-one of the 25 family court act on or before the return date in family court and the 26 family court issues a temporary order of protection or order of 27 protection as authorized under article eight of the family court act. 28 Nothing in this subdivision shall limit or restrict the petitioner's 29 right to proceed directly and without court referral in either a crimi- 30 nal or family court, or both, as provided for in section one hundred 31 fifteen of the family court act and section 100.07 of this chapter. 32 3-b. Emergency powers when family court not in session; modifications 33 of orders of protection or temporary orders of protection. Upon the 34 request of the petitioner, a local criminal court may on an ex parte 35 basis modify a temporary order of protection or order of protection 36 which has been issued under article four, five, six or eight of the 37 family court act pending a hearing in family court, provided that a 38 sworn affidavit verified in accordance with subdivision one of section 39 100.30 of this chapter is submitted: (i) alleging that the family court 40 is not in session and (ii) showing good cause, including a showing that 41 the existing order is insufficient for the purposes of protection of the 42 petitioner, the petitioner's child or children or other members of the 43 petitioner's family or household. The local criminal court shall make 44 the matter regarding the modification of the order returnable in family 45 court on the next day the family court is in session, or as soon there- 46 after as practicable, but in no event more than four calendar days after 47 issuance of the modified order. The court shall immediately forward a 48 copy of the modified order, if any, and sworn affidavit to the family 49 court and shall provide a copy of such modified order, if any, and affi- 50 davit to the petitioner; provided, however, that where copies of such 51 modified order and affidavit are transmitted to the family court by 52 facsimile or other electronic means, the original copies of such modi- 53 fied order and affidavit shall be forwarded to the family court imme- 54 diately thereafter. Any modified temporary order of protection or order 55 of protection issued pursuant to this subdivision shall be issued to the 56 respondent and the attorney representing the respondent and copies shallA. 6202 5 1 be filed as required in subdivisions six and eight of this section for 2 orders of protection issued pursuant to this section. No attorney shall 3 refuse to accept any such order addressed to his or her respondent 4 client, and such attorney shall immediately provide notice to his or her 5 client of the issuance of the order and the terms of such order. 6 8. In any proceeding in which an order of protection or temporary 7 order of protection or a warrant has been issued under this section, the 8 clerk of the court shall issue to the complainant and defendant and 9 defense counsel and to any other person affected by the order a copy of 10 the order of protection or temporary order of protection and ensure that 11 a copy of the order of protection or temporary order of protection be 12 transmitted to the local correctional facility where the individual is 13 or will be detained, the state or local correctional facility where the 14 individual is or will be imprisoned, and the supervising probation 15 department or department of corrections and community supervision where 16 the individual is under probation or parole supervision. No defense 17 counsel shall refuse to accept any such order addressed to his or her 18 client, and such counsel shall immediately provide notice to the defend- 19 ant of the issuance of the order and the terms of such order. The pres- 20 entation of a copy of such order or a warrant to any peace officer 21 acting pursuant to his or her special duties or police officer shall 22 constitute authority for him or her to arrest a person who has violated 23 the terms of such order and bring such person before the court and, 24 otherwise, so far as lies within his or her power, to aid in securing 25 the protection such order was intended to afford. The protected party in 26 whose favor the order of protection or temporary order of protection is 27 issued may not be held to violate an order issued in his or her favor 28 nor may such protected party be arrested for violating such order. 29 § 4. Subdivision 6 of section 530.13 of the criminal procedure law, as 30 amended by section 82 of subpart B of part C of chapter 62 of the laws 31 of 2011, is amended to read as follows: 32 6. In any proceeding in which an order of protection or temporary 33 order of protection or a warrant has been issued under this section, the 34 clerk of the court shall issue to the victim and the defendant and 35 defense counsel and to any other person affected by the order, a copy of 36 the order of protection or temporary order of protection and ensure that 37 a copy of the order of protection or temporary order of protection be 38 transmitted to the local correctional facility where the individual is 39 or will be detained, the state or local correctional facility where the 40 individual is or will be imprisoned, and the supervising probation 41 department or department of corrections and community supervision where 42 the individual is under probation or parole supervision. No defense 43 counsel shall refuse to accept any such order addressed to his or her 44 client, and such counsel shall immediately provide notice to the defend- 45 ant of the issuance of the order and the terms of such order. The pres- 46 entation of a copy of such order or a warrant to any police officer or 47 peace officer acting pursuant to his or her special duties shall consti- 48 tute authority for him or her to arrest a person who has violated the 49 terms of such order and bring such person before the court and, other- 50 wise, so far as lies within his or her power, to aid in securing the 51 protection such order was intended to afford. 52 § 5. This act shall take effect on the first of October next succeed- 53 ing the date on which it shall have become a law.
