BILL NUMBER: S3453
SPONSOR: HELMING
 
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 determin-
ing 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 crimi-
nal 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.
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 S 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 domes-
tic 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 house-
hold, 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 West-
chester County after an attempted assault with a gun on his former girl-
friend.
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 perpe-
trators, who are highly likely to do so. Those who commit acts of domes-
tic 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 assist-
ance fee. This fee will provide needed revenue for the training of
police officers and the office of prevention of Domestic violence.
 
LEGISLATIVE HISTORY:
2023-2024: S.2527 referred to Codes/A.3385 referred to Codes
2021-2022: S.6283 referred to Codes
2019-2020: S.75 referred to Codes
 
FISCAL IMPLICATIONS:
None.
 
EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become a law.

Statutes affected:
S3453: 240.30 penal law, 240.30(5) penal law, 120.05 penal law, 121.12 penal law, 120.13 penal law, 215.51 penal law, 60.35 penal law, 60.35(8) penal law