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A03750 Summary:

BILL NOA03750B
 
SAME ASNo Same As
 
SPONSORSeptimo
 
COSPNSRHevesi, Jackson, Seawright, Kelles, Gonzalez-Rojas, Kim, Burgos, Epstein, Mamdani, Dickens, Simon, Zebrowski, Forrest, Gallagher, Jacobson, Walker, Raga, Reyes, Pretlow, Levenberg
 
MLTSPNSR
 
Add §530.15, amd §530.30, CP L
 
Authorizes courts to hold evidentiary hearings for a temporary order of protection in certain circumstances; grants superior court judges the authority to issue a temporary order of protection when an action is pending in a local criminal court in certain circumstances.
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A03750 Actions:

BILL NOA03750B
 
02/07/2023referred to codes
03/07/2023amend and recommit to codes
03/07/2023print number 3750a
01/03/2024referred to codes
06/04/2024amend and recommit to codes
06/04/2024print number 3750b
06/05/2024reported referred to rules
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A03750 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A3750B
 
SPONSOR: Septimo
  TITLE OF BILL: An act to amend the criminal procedure law, in relation to the issuance of temporary orders of protection when an action is pending in a local criminal court   PURPOSE OR GENERAL IDEA OF BILL: This bill will add a section to the Criminal Procedure Law that will codify recent case law enabling accused parties in criminal proceedings to request a hearing when temporary orders of protection are issued against them. These temporary orders can cause homelessness, job loss, immigration consequences, and family separation. This change will give judges the opportunity to assess information and determine whether temporary orders are necessary to protect the parties.   SUMMARY OF SPECIFIC PROVISIONS: Section 1 of the bill adds Section 530.15 of the Criminal Procedure Law. Sections 2 of the bill amends subdivision 2 of Section 530.30 of the Criminal Procedure Law. Section 3 sets the effective date.   JUSTIFICATION: During New York criminal court arraignments, judges issue full temporary orders of protection ("TOPs") as a matter of course in nearly every case where there is a complaining witness. These orders require the person charged to stay away from the home and place of business of the complaining witness. Prosecutors ask for TOPs based almost entirely on the representation of law enforcement officers who act with incomplete information and biases. As a result, TOPs are often issued against survivors who were protecting themselves, teenagers and young people that get into altercations with parents regardless of who is the initial aggressor, and LGBTQ+ people and populations who present as "other" even when they are defending themselves. TOPs typically last until the under- lying case resolves-a process that can take months or even years- and many are issued against the wishes of the protected parties. Some are even issued against both or multiple parties. Unlike many other states and the District of Columbia, New York does not have a codified process for accused persons or protected parties to be heard when these orders are issued. Recognizing this, the New York Appellate Division, First Department recently ruled in Matter of Craw- ford v. Ally (June 24th, 2021), that when a temporary stay-away order is issued which implicates a defendant's due process rights, the Criminal Court should conduct a "prompt evidentiary hearing," thereafter. The case bears the name of Shamika Crawford who was rendered homeless by a stay away order--removed from her own New York City Housing Authority apartment and separated from her children for nearly three months. This hearing would offer an opportunity for a judge to examine the facts more closely than they could at arraignment to decide if the order should remain in place, or be limited. However, the Crawford decision leaves numerous details open to interpretation by the courts, and as a result the ruling has been undermined and applied in an inconsistent manner. The Promoting Pre-Trial (PromPT) Stability Act codifies Crawford's hold- ing into law while clarifying key details of hearings. This bill ensures that due process is complied with and that there is uniform application of the decision across the State. It allows judges to respond to the Unique needs of a particular case or relationship, while also allowing families to work out their differences, and teenagers and young adults to stay in their family's homes. Importantly, judges will make decisions as to the propriety of stay-away orders based upon more complete infor- mation than they have at arraignment. Notably, this bill will not lead to the vacatur of all TOPs. Prosecu- tors are still authorized to ask for TOPs, and judges will have discretion to issue these orders, or modify them, when they are appro- priate and necessary for the safety of the protected party. Further, this legislation only concerns criminal court TOPs, parties can continue to petition family court for civil orders of protection. This bill does not require protected parties to testify in these hearings, but it does give them an opportunity to be heard if they choose. Further, this bill ensures hearings occur expeditiously so that accused parties can avoid significant harms caused by improper TOPs.   PRIOR LEGISLATIVE HISTORY: 2019-2020 - A. 7633 Referred to Codes 2021-2022 - A. 4558A Referred to Codes S. 2832B Referred to Codes   FISCAL IMPLICATIONS: None to the State   EFFECTIVE DATE: This bill takes effect immediately.
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A03750 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3750--B
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    February 7, 2023
                                       ___________
 
        Introduced  by  M.  of  A.  SEPTIMO, HEVESI, JACKSON, SEAWRIGHT, KELLES,
          GONZALEZ-ROJAS, KIM, BURGOS, EPSTEIN, MAMDANI, DICKENS, SIMON, ZEBROW-
          SKI, FORREST,  GALLAGHER,  JACOBSON,  WALKER,  RAGA,  REYES,  PRETLOW,
          LEVENBERG  --  read  once  and  referred  to the Committee on Codes --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee -- recommitted to the Committee on Codes
          in  accordance  with  Assembly Rule 3, sec. 2 -- committee discharged,
          bill amended, ordered reprinted as amended  and  recommitted  to  said
          committee
 
        AN  ACT to amend the criminal procedure law, in relation to the issuance
          of temporary orders of protection when an action is pending in a local
          criminal court
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The  criminal  procedure  law  is amended by adding a new
     2  section 530.15 to read as follows:
     3  § 530.15 Temporary order of protection hearing.
     4    Where a court has issued a temporary order of protection  pursuant  to
     5  subdivision  one of section 530.12 of this article or subdivision one of
     6  section 530.13 of this article, upon application  of  a  defendant,  the
     7  court  shall hold an evidentiary hearing where the prosecutor must show,
     8  by  an  articulated  reasonable  basis,  that  the  temporary  order  of
     9  protection  is  likely  to  achieve its purpose in the absence of such a
    10  condition, of protecting a designated witness or complainant from intim-
    11  idation or injury.
    12    (a) The defendant shall be entitled to such hearing within five  busi-
    13  ness days of requesting such hearing.  Notice must be given by the court
    14  to  both  parties,  as  well  as  the  party  protected  by the order of
    15  protection, in advance of the hearing.   Such notice  shall  detail  the
    16  rights  of  the protected party with respect to the hearing and describe
    17  the different types of temporary orders of protection available.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06035-08-4

        A. 3750--B                          2
 
     1    (b) At the hearing, the  prosecution  must  present  relevant  witness
     2  testimony,  or admissible evidence, subject to cross-examination, though
     3  the witness need not be the party protected by the order.    Hearsay  is
     4  admissible.
     5    (c)  The court shall state on the record or in writing its findings of
     6  facts and conclusions of law, the reasons for maintaining, vacating,  or
     7  modifying  the temporary order of protection, and, where applicable, why
     8  the temporary order of protection is necessary to achieve its purpose in
     9  the absence of such a condition, of protecting a designated  witness  or
    10  complainant from intimidation or injury.
    11    § 2. Section 530.30 of the criminal procedure law, the section heading
    12  and subdivisions 1 and 2 as amended by section 17 of part JJJ of chapter
    13  59  of  the  laws  of  2019,  the  closing paragraph of subdivision 1 as
    14  amended by section 7 of subpart A of part VV of chapter 56 of  the  laws
    15  of 2023, is amended to read as follows:
    16  § 530.30 Order of recognizance, release under non-monetary conditions or
    17             bail or issuance of a temporary order of protection; by supe-
    18             rior  court  judge  when  action is pending in local criminal
    19             court.
    20    1. When a criminal action is pending in a local criminal court,  other
    21  than  one  consisting of a superior court judge sitting as such, a judge
    22  of a superior court holding a term thereof in the county, upon  applica-
    23  tion  of a defendant, may order recognizance, release under non-monetary
    24  conditions or, where authorized, bail when such local criminal court:
    25    (a) Lacks authority to issue such an order, pursuant to  the  relevant
    26  provisions of section 530.20 of this article; or
    27    (b) Has denied an application for recognizance, release under non-mon-
    28  etary conditions or bail; or
    29    (c) Has fixed bail, where authorized, which is excessive; or
    30    (d)  Has set a securing order of release under non-monetary conditions
    31  which are more restrictive  than  necessary  to  reasonably  assure  the
    32  defendant's return to court.
    33    In  such  case, such superior court judge may vacate the order of such
    34  local criminal court and release the defendant on recognizance or  under
    35  non-monetary  conditions,  or  where  authorized,  fix  bail in a lesser
    36  amount or in a less burdensome form, or order non-monetary conditions in
    37  conjunction with fixing bail, including fixing bail in a  lesser  amount
    38  or  in a less burdensome form, the determination for which shall be made
    39  in accordance with section 510.10 of this title. The court shall explain
    40  the basis for its determination and choice  of  securing  order  on  the
    41  record or in writing.
    42    2.  When a criminal action is pending in a local criminal court, other
    43  than one consisting of a superior court judge sitting as such,  and  the
    44  local criminal court has denied a request to modify or limit a temporary
    45  order of protection issued pursuant to subdivision one of section 530.12
    46  of  this  article  or subdivision one of section 530.13 of this article,
    47  upon application of a defendant, a judge of the superior court holding a
    48  term thereof in the county shall review the determination of  the  local
    49  criminal  court  de novo and may vacate or modify the order of the local
    50  criminal court. A court's failure to comply  with  the  requirements  of
    51  section 530.15 of this article is reviewable under this section.
    52    3.  Notwithstanding  the  provisions of subdivision one or two of this
    53  section, when the defendant is charged with a felony in a local criminal
    54  court, a superior court judge may not order recognizance, release  under
    55  non-monetary  conditions or, where authorized, bail, or vacate or modify
    56  a temporary order of protection unless and until the  district  attorney

        A. 3750--B                          3
 
     1  has  had  an  opportunity  to  be heard in the matter and such judge and
     2  counsel for the defendant have been furnished with a report as described
     3  in subparagraph (ii) of paragraph (b)  of  subdivision  two  of  section
     4  530.20 of this article.
     5    [3.]  4.  Not  more  than one application may be made pursuant to each
     6  subdivision of this section.
     7    § 3. This act shall take effect immediately.
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