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2007 Domestic Violence Legislative Update

October 1, 2007

Author: Amy Schwartz-Wallace

The following are summaries of the domestic violence-related laws passed in 2007 in New York:

Signed Into Law

Prohibition on Charging Fees for Service of Civil Orders of Protection

Bill Number:  A.7370 (Hyer-Spencer) / S.4020 (Volker). 

Status:  Signed by the Governor on 5/21/2007

Several Sheriff’s Departments in New York routinely charge a fee for serving orders of protection, fees for mileage associated with service, and/or fees where an order cannot be served in one attempt.  This practice, however, violates the STOP Formula Grant Program’s requirements under the federal Violence Against Women Act that survivors of domestic violence, sexual assault and stalking who obtain civil orders of protection from their offenders should not have to bear financial expenses related to obtain such order.  New York receives significant STOP grant monies and this new law is intended to remedy this inconsistency and bring the state into compliance.  As there are no fees for the service of criminal court orders, this law is also intended to create equity between the criminal and civil systems.  By amending subdivision (h) of CPLR §8011, the new law specifically provides that Sheriff’s Departments throughout the state may not charge a fee for court-ordered service of process for a civil order of protection or for other orders or papers served simultaneously with the order of protection.  Effective August 20, 2007.   

Criminal Mischief as a New Family Offense

Early Lease Termination for Domestic Violence Survivors: 

Bill Number:  A.3386 (Heastie) / S.1922 (Robach) 

Status:  Signed by the Governor on 6/04/2007 AND

Bill Number:  A.9244 (Heastie) / S.6351 (Robach) 

Status:  Signed by the Governor on 8/15/07.

Domestic violence survivors often have to flee their rental units in an attempt to avoid further violence or threats of violence, seek safety in a shelter, or to deter stalkers.  Unfortunately, because many survivors have long-term leases with their landlords, these leases may pose an economic barrier to safety where the lease contains clauses that make early termination fiscally prohibitive.  She may also get a poor reference from her landlord as a result of having to break her lease.  Responding to this concern, amendments to Real Property Law § 227-c newly authorizes the court that issued the survivor order of protection [amendments to Criminal Procedure Law §530.12 & 13, Domestic Relations Law §240, and Family Court Act §§446, 656, 842 and 1056(5)] to also terminate her residential lease before the natural end of its term.  This early termination will release her from any further liability for the rental agreement and enable her to vacate the premises without financial penalty.  Only survivors with orders of protection may qualify for this relief. 

Prior to commencing a court action for lease termination, the survivor must have attempted to negotiate a termination with the landlord to no avail.  In filing her petition for relief, the tenant must provide notice of the proceeding to the landlord, as well as to any joint tenants, even if that joint tenant is the abuser.  She must also demonstrate that despite the existence of the order of protection a continuing, substantial risk of physical or emotional harm exists to her or her child, that relocation will substantially reduce the risk, that attempts for a voluntary release from the lessor were denied, and she is acting in good faith.  If a lease termination order is granted, the survivor must insure that all sums due are timely paid and she must return the property free of occupants.  If there are joint tenants, the survivor is not responsible for removing the co-tenant from the premises after an order is issued.  This law empowers the court to sever the joint tenancy rather than terminate tenancy in its entirety unless all tenants agree to a complete termination.  The law also outlines procedures for adjustments in rent and for the setting the termination date.  This law will be effective October 1, 2007. 


Criminalization of Sex and Labor Trafficking

Bill Number:  A.8679 (Dinowitz) / S.5902 (Padavan) 

Status:  Signed by the Governor on 6/06/2007

A reported 18,000 to 20,000 people are trafficked into the United States each year for forced labor or sexual exploitation.  Until recently, only the federal government and selected states had specific laws prohibiting such conduct.  By passing this comprehensive, landmark legislation, there are many new provisions and protections: 

  1. New crimes:  Both sex and labor trafficking are now criminalized under new Penal Law §§230.34 and 135.35.  Penal Law §§230.36 and 135.36 provides that victims of sex and labor trafficking will not be held accountable as accomplices to their traffickers.  Sex trafficking and labor trafficking are now included under Penal Law §460.10 and Criminal Procedure Law §700.05 as criminal acts that may be the basis of an enterprise corruption charge and prosecutors are authorized to employ wiretaps on trafficker’s telephones.  Finally, Executive Law §621(5) is amended to reflect the criminalization of labor and sex trafficking. 
  2. Targeting the Industry:  Penal Law §230.03 is repealed, and Penal Law §230.04 elevates the crime of patronizing a prostitute from a B misdemeanor to an A misdemeanor.  A person who knowingly sells travel-related services for prostitution tourism in another jurisdiction is guilty of a felony under Penal Law §230.25(1).  
  3. Sex Offender Registry:  Defendants convicted of sex trafficking must also register as a sex offender pursuant to Correction Law §168-d(1)(b). 
  4. Victim Assistance:  The Social Services Law was also amended to add a new Article 10-D, which outlines the definition of human trafficking victims and provides for services available to human trafficking victims as soon as practicable, including those that are pre-certified, non-citizens.  
  5. Creation of an Inter-Agency Task Force:  The law further establishes an interagency task force charged with measuring and evaluating the state’s progress in preventing human trafficking, prosecuting traffickers and providing services victims of human trafficking.

This law will be effective on November 1, 2007.  The provisions relating to the Inter-Agency Task Force are effective immediately and will sunset on September 1, 2011.

Amendment to Criminal Firearms License Restrictions Where Willful Violation of Orders of Protection Caused Physical Injury

Bill Number:  A.0618 (Paulin) / S.4066 (Robach)

Status:  Signed by the Governor on 7/03/2007

Criminal Procedure Law §§530.14(1)(a)(ii)(A) and 530.14(3)(a)(i) were amended to require a court to order the revocation of or defendant’s ineligibility for firearms licenses and/or to order the immediate surrender of all firearms owned or possessed by the defendant upon determination that the defendant willfully violated a temporary or permanent order of protection by inflicting physical injury upon another person.  This law lowers the degree of injury necessary to trigger these protections from “serious physical injury” to “physical injury”.  Effective August 2, 2007.   

Issuance of a Criminal Temporary Order of Protection with a Securing Order

Bill Number: A.8193 (Weinstein) /S. 4538 (Kruger) 

Status: Signed by the Governor on 7/3/07

The Criminal Procedure Law currently authorizes orders of protection to be issued in criminal family offense case or non-family offense cases as a condition of any order of release on own recognizance (ROR), adjournment on contemplation of dismissal (ACD), pre-trial release (non-family offenses only) or bail.  However, neither CPL §§530.12 or 530.13 expressly permit the issuance of a temporary order of protection where the defendant was committed to the custody of the sheriff, rather than released. Although a defendant may not be released s/he may continue to pose a threat to the victim or have contact with her from the confines of jail.  By amending CPL §§530.12(1) and 530.13(1), this new remedial law provides the courts with express permission to issue a temporary order of protection “in conjunction with any securing order committing the defendant to the custody of the sheriff."  Effective July 3, 2007.

Representative of the State Office for the Aging Added to New York State Office for the Prevention of Domestic Violence Advisory Council

Bill Number:  A.8762 (Young) / S.3717 (Golden)

Status:  Signed by the Governor on 7/03/2007

Executive Law §575(4)(b) was amended to increase the number of ex-officio members of the New York State Office for the Prevention of Domestic Violence’s Advisory Council to allow for the addition of a representative of the State Office for the Aging.  This addition institutionalizes the recognition of older adults who may experience domestic violence.  Effective July 3, 2007.

Establishment of a Probation Detainer Warrant Pilot Project

Bill Number:  A.8592B (Aubry) / S.6352 (Lanza)

Status:  Signed by the Governor on 7/18/2007

By amending the Criminal Procedure Law and adding a new section (§410.92), the Division of Probation was authorized to establish pilot projects in four New York State counties outside of NYC.  Additionally, the law also amends Correction Law §500-a(1)(c) to allow for the temporary detention of persons in violation of their probation for family offense, sex offense or youthful offender convictions.
 
Under the new law, a person on probation may be taken into custody for a violation of a condition of a sentence of probation when the Director or Deputy Director of the local Probation Department determines that the probationer is a public safety risk and the probationer may be detained for up to 48 hours to permit the sentencing court to determine whether the (s)he violated a condition of his or her sentence.  If the sentencing court finds reasonable cause that a condition of the sentence was violated, the court may commit the probationer into the sheriff’s custody, set bail or release the person on their own recognizance.  If there is no probable cause, the probationer will be released.  Further, the law requires the Office of court Administration to ensure that judges in pilot program communities are available to review the status of persons in custody pursuant to the detainer.  Finally, the law also mandates reporting procedures be established to track the use and impact of detainer warrants.  Effective July 18, 2007.   

Experimental Program for Electronic Transmission of Orders of Protection

Bill Number:  A.7554C (Rosenthal) / S.4704C (Volker)

Status:  Signed by the Governor on 7/18/2007

Under this new law, the Office of Court Administration was authorized to create rules for selected Family Courts (in Erie, Onondaga, Monroe, Nassau, New York, Westchester, Richmond, Kings, and Albany counties) to institute experimental programs that will allow temporary or permanent orders of protection to be transmitted by fax or electronic means for service to Sheriff’s offices or police departments.  Participation in this pilot program is voluntary and the authorizing legislation sunsets July 1, 2010.  The law also directs the Chief Administrator of the Courts to submit a report by April 2009 evaluating the pilots and making recommendations for further legislation.  Effective July 18, 2007.   

Court Rules Prescribing Workload Standards for Attorneys for Children

Bill Number:  A.6847B (Weinstein) / S.4025-A (DeFrancisco)

Status:  Signed 8/28/07

Recognizing the complexity of cases and heavy workloads carried by many law guardians who represent children, Section 249-b was added to the Family Court Act requiring the Office of Court Administration (OCA) to establish workload standards for law guardians, including maximum numbers of children who can be represented by any given law guardian at one time.  In Section 1 of the law, the Legislature made specific findings outlining the intent and purpose of this new amendment.

To allow for proper budgeting, a preliminary report by the Chief Administrator is due by November 15, 2007 to the Administrative Board of the Courts, the Governor, and the Legislature.  By April 1, 2008, the Chief Administrator of the Courts is to disseminate these new court rules imposing workload standards pursuant to this legislation.  In determining these rules, OCA must consider the wide variety of cases law guardians cover (child welfare & termination of parental rights proceedings, juvenile delinquency, and persons in need of supervision cases), the maximum number of children a law guardian can represent, effective assistance of counsel, the complexity of the proceedings, and the nature of the court appearances required on that child’s behalf.  The law was effective on 8/28/07.

Vetoed by the Governor on 8/28/07:

Court Required to Review Litigant’s History Prior to Issuing Custody or Visitation Orders 

Bill Number:  A.7329A (Weinstein) / S.4877A (DeFrancisco) 

Status:  Passed Assembly 6/20/2007; Passed Senate 6/21/2007, Vetoed by the Governor on 8/28/07

By amending  Domestic Relations Law §240(a)(1), Family Court Act §651(e), Social Services Law § 422(4)(A)(e), Executive Law § 221-a(6), and the Correction Law §168-b(2)(b) the law would have required Family and Supreme courts to conduct a complete a review of the Central Register of Child Abuse and Maltreatment, the Registry of Orders of Protection and Warrants of Arrest, and the Sex Offender Registry databases regarding the parties before them seeking custody or visitation.  The court would have also been empowered to disclose the fruits of the review to all counsel, including law guardians.  The court would not have been permitted to issue a temporary or final order of custody or visitation without reviewing the applicable databases and notifying counsel of its results. 

 





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