Important Domestic Violence Criminal Laws in New York State

January 1, 2000

Jennifer DeCarli

*Since Family Court and Criminal Court have concurrent jurisdiction over family offenses, for domestic violence legal services advocates, it is essential to familiarize oneself with the relevant criminal laws as well as the civil laws.

1. Criminal Procedure Law 530.11 - Procedures for family offense matters
2. Criminal Procedure Law 530.12 - Protection for victims of family offenses
3. Criminal Procedure Law 530.14 - Suspension and Revocation of a license to carry, possess, repair or dispose of a firearm or   firearms pursuant to section 400.00 of the penal law and ineligibility for such a license; order to surrender firearms.
4. CPL 140.10(4) - Mandatory Arrest
5. Primary Physical Aggressor Act - See CPL 140.10(c)

Case Law Addressing the Specific Elements of Interstate Domestic Violence 18 USC 2261(a)(2)

1. U.S. v. Page - 167 F.3d 325, (C.A. 6 (Ohio) 1999) cert denied, Page v. U.S., 120 S. Ct. 496 (US 11/15/99) (No. 99-97)
2. U.S. v. Helem - 186 F.3d 449 (C.A. 4 (N.C.) 1999)

Case Law Addressing the Constitutionality of the Criminal Offense Statutes Under the VAWA

1. U.S. v. Bailey - 112 F.3d 758, (C.A. 4 (W. Va.) 1997)
2. U.S. v. Gluzman - 953 F. Supp. 84 (S.D.N.Y. 1997)
3. U.S. v. Lankford III - 196 F.3d 563, (C.A. 5 (Tex.) 1999)
4. U.S. v. Ruggles - 2000 WL 221970 (6th Cir. (Ky))

This section addresses concurrent jurisdiction as well as outlining the notice requirements that law enforcement, courts, hospitals and district attorneys shall utilize in family offense matters, and the full faith and credit requirements that must be utilized with out of state orders of protection.

2. Criminal Procedure Law 530.12 - Protection for victims of family offenses

This section addresses orders of protection, such as the conditions temporary and permanent orders of protection issued on behalf of a family or household member can contain as well as addressing the procedural aspects of when a criminal court order of protection can be obtained, how long orders of protection can be issued for and how the court should proceed in violation proceedings.

Additionally, this section addresses the emergency powers the criminal court has when the family court is not in session. This is an often overlooked statute that is essential for lay advocates and legal services advocates to be familiar with. According to this section, a local criminal court can issue an ex parte temporary order of protection or modify a temporary or permanent order of protection ex parte pending a hearing in family court as long as certain procedural requirements are met. There are also specific procedural requirements set forth for returning the matter to family court. Since Family Court is not in session at night and on weekends, these sections provide victims who are unwilling to proceed in criminal court or whose batterers have committed an offense not triggering the mandatory arrest statute with an important alternative option.

Lastly, this section states that the District Attorneys office should make reasonable efforts to notify complainants alleging a family offense when the People have decided to decline prosecution, dismiss the charges or enter into a plea agreement.

3. Criminal Procedure Law 530.14 - Suspension and Revocation of a license to carry, possess, repair or dispose of a firearm or firearms pursuant to section 400.00 of the penal law and ineligibility for such a license; order to surrender firearms.

This section provides guidelines for judges to address firearms when issuing a temporary order of protection, a permanent order of protection and when an order of protection has been found to have been willfully violated. This section states when a judge must suspend existing licenses, order defendant ineligible for licenses and order the immediate surrender of all firearms owned or possessed and when a judge may do so. The civil counterpart to this statute can be found in Article 8 of the Family Court Act - Section 842a. It is important to remember that these guidelines work in conjunction with the federal firearm laws. (See Section on federal domestic violence laws)

4. CPL 140.10(4) - Mandatory Arrest

Arrest is required when:

• a felony is committed against a family or household member
• a stay away order of protection has been violated
• a family offense has been committed in violation of an order of protection
• a family offense misdemeanor has been committed against a family or household member unless the victim requests otherwise

*According to CPL 140.10, "Nothing contained in this subdivision shall be deemed to .....(b) restrict or impair the authority of any municipality, political subdivision, or the division of state police from promulgating rules, regulations and policies requiring the arrest of persons in additional circumstances where domestic violence has allegedly occurred."

*This law is effective until July 1, 2001.

5. Primary Physical Aggressor Act - See CPL 140.10 (c)

This law was passed in 1997 in response to the unintended effect of the 1994 mandatory arrest statute. After the 1994 statute was passed, there was a substantial increase in the number of dual arrests, whereby officers would arrive at the scene of an incident and have probable cause to arrest both family and household members. Recognizing that the intent of the 1994 mandatory arrest statute was to protect victims of domestic violence, the legislature adopted guidelines for law enforcement officers to use in determining who is the primary physical aggressor. Officers must consider the comparative severity of the injuries, whether any threats of future harm against another party have been made, whether any person has a prior history of domestic violence and whether any person acted defensively to protect him or herself from injury.

Case Law Addressing the Specific Elements of Interstate Domestic Violence 18 U.S.C. 2261(a)(2)

1. U.S. v. Page - 167 F.3d 325, (C.A. 6 (Ohio) 1999) cert denied, Page v. U.S., 120 S.Ct. 496 (U.S. Nov 15, 1999) (No. 99 - 97) -

On a rehearing en banc, the 6th Circuit Court of Appeals upheld the conviction of the defendant under 18 U.S.C. S 2261 (a)(2), interstate domestic violence, by an equally divided court. Defendant had prohibited the victim from leaving his condominium by using mace. Over the course of a few hours, he beat the victim with a claw hammer, pipe wrench and his fists. He then forced her into his car and drove through West Virginia and into Pennsylvania, with the purpose of evading state prosecution. Four hours later, he delivered the victim to an emergency room in Pennsylvania. During the travel, the defendant did not physically touch the victim. However, he did threaten to push her out of the car and the victim's pre-existing injuries were aggravated due to the forced travel and the defendant prohibiting her from seeking immediate medical treatment.

The issue was whether the statute was intended to cover an attack preceding the interstate travel. This was an issue of first impression. The court held that the statute does reach situations where the beating of an intimate partner occurs prior to travel as long as it is integrally related to the subsequent forced travel across state lines. In addition, the court ruled that in this particular case, the aggravation of the victim's injuries as well as the threats to push her out of the car that occurred during the travel were further injuries caused during the travel. The dissent argued that the plain reading of the statute should only apply to injuries sustained during or as a result of such forced travel.

2. U.S. v. Helem , 186 F.3d 449 (C.A.4 (N.C.) 1999)

Defendant was convicted of interstate domestic violence. Defendant prevented his estranged wife from leaving his apartment by choking her. While continuing to choke her, he made threatening remarks regarding death while striking her in the face numerous times. The victim lost consciousness. After regaining consciousness, the defendant released the victim and apologized. Defendant forced the victim to leave the apartment and he drove the victim south, refusing to stop at hospitals along the way although his wife was in considerable pain. Eventually, the defendant took his wife to a hospital after she started coughing up blood, whereby she was finally able to communicate to the physician's assistant what had happened to her. The victim suffered multiple bruises, two black eyes, fractured cheekbones, bruises on her neck, and numerous cuts and scratches.

Again, the issue was whether or not the "in the course or as a result of that conduct" requirement of interstate domestic violence, 18 U.S.C. 2261(a)(2), was satisfied. The 4th Circuit agreed with the court's ruling in Page by holding that physical violence occurring before interstate travel begins can satisfy the "in the course or as a result of that conduct" requirement of 18 U.S.C. 2261(a)(2).

Case Law Addressing the Constitutionality of the Criminal Offense Statutes Under the VAWA

1. U.S. v. Bailey - 112 F.3d 758, (C.A.4 (W.Va.) 1997)

Defendant was convicted of kidnapping and interstate domestic violence. Defendant inflicted a head injury on his wife in their home and then drove in out and out of the state, with his wife either in the trunk of his car or in their backseat, for a period of five days before taking her to a hospital in Kentucky for medical assistance. The defendant's wife suffered permanent injuries and massive impairment to her total body functioning. She will most likely never walk again but may eventually learn to feed herself and talk. Defendant was sentenced to life imprisonment, a concurrent 20 year sentence, five year term of supervised release and $40,000 in restitution.

The Court upheld the defendant's conviction. More specifically, the Court held that Section 2261(a) of the VAWA did not violate the Commerce Clause since it requires the crossing of a state line, which place the transaction "squarely in interstate commerce". In addition, the Court held that the kidnapping charge and the interstate domestic violence charge were not multiplicatus since they both require proof of an element that the other does not.

2. U.S. v. Gluzman, 953 F.Supp. 84 (S.D.N.Y. 1997)

This case was brought against a woman for conspiring to commit the murder of her estranged husband. The defendant was convicted of conspiring to commit interstate domestic violence and for committing interstate domestic violence. Defendant conspired to and actually did travel from New Jersey to New York with the intent to murder her estranged husband, and once in New York, she did murder him with the assistance of a friend.

The Court reviewed the legislative history of Section 2261 in order to decide on the defendant's argument that Congress exceeded its authority to legislate under the Commerce Clause when it enacted Section 2261. The defendant argued that interstate travel in furtherance of spousal abuse is not an activity affecting interstate commerce and Section 2261 does not regulate a commercial activity or contain a requirement that the activity be connected to interstate commerce.

The Court held that Congress had a rational basis for concluding that the regulation of interstate domestic violence was "reasonably adapted to an end permitted by the Constitution". Furthermore, the Court concluded that the statute does have an identifiable interstate nexus, because it regulates conduct in interstate commerce, not conduct affecting interstate commerce since it requires the actual crossing of a state line with the intent to commit domestic violence and the actual commission of that violence.

3. U.S. v. Lankford III., 196 F.3d 563, (C.A. 5 (Tex.) 1999)

Defendant appealed from his conviction by a jury of kidnapping, interstate domestic violence, and using a firearm during and in relation to the commission of those crimes. The defendant forced his estranged wife into a car, by threatening to kill her and then himself with a gun that was visible to his estranged wife. The defendant handcuffed his wife's wrist to the gear shift and continuously warned her not to seek assistance from anyone. The defendant drove his estranged wife from Kansas to Oklahoma, forced his estranged wife to spend the night in Oklahoma with him and he forced her to have sex with him repeatedly. Although the victim was not handcuffed for the entire trip, she never attempted to cry out for help or flee due to the defendant's continuous threats to hurt her and himself if she did so.

The Court affirmed the lower court's decision and rejected the numerous arguments raised by the defendant. As for the defendant's specific challenge to the interstate domestic violence charge, the defendant argued that there was insufficient evidence to establish that he crossed a state line with intent to injure, harass or intimidate his spouse. In addition, he argued that the interstate domestic violence section of the VAWA was unconstitutional. The court held that the jury chose to give more credibility to the victim's testimony than the defendants and that her testimony did not assert facts that she could not have observed nor events that could not have occurred. In addition, the court found that there was sufficient evidence to support the government's case that the defendant crossed state lines with the intent to harass, injure or intimidate his wife and that during the course of or as a result of such travel, he did intentionally commit a crime of violence and caused his wife bodily injury. Lastly, the court held that the interstate domestic violence section of the VAWA did not violate the Commerce Clause.

4. U.S. v. Ruggles, 2000 WL 221970 (6th Cir.(Ky))

Defendant was convicted by a jury of interstate domestic violence, two counts of interstate stalking, and interstate violation of a protective order. The facts supporting the charges occurred throughout a four month time period (April 1997 - July 1997) and ranged from traveling across state lines to threaten the victim and various relatives of the victim, using fraud to force the victim to drive across state lines to an acquaintance's home where he then forced her to engage in sexual activities with the acquaintance, traveling across state lines in order to ransack the victim's home and leave a knife in her door and contacting and confronting the victim in clear violation of a protective order.

The Court upheld the defendant's conviction on all charges finding that the Government presented sufficient evidence to establish all elements of the above charges and a rational juror could have found that the defendant committed the essential elements of the crimes charged.

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