N.Y. Criminal Procedure Law § 200.63: Indictment; special information for aggravated family offense

§ 200.63 Indictment; special information for aggravated family offense.

1. Whenever a person is charged with the commission or attempted

commission of an aggravated family offense as defined in section 240.75

of the penal law, an indictment or information for such offense shall be

accompanied by a special information, filed by the district attorney

with the court, alleging that the defendant was previously convicted of

a specified offense as defined in subdivision two of section 240.75 of

the penal law, that at the time of the previous offense the defendant

and the person against whom the offense was committed were members of

the same family or household as defined in subdivision one of section

530.11 of this chapter, and that such previous conviction took place

within the time period specified in subdivision one of section 240.75 of

the penal law. Except as provided herein, the people may not refer to

such special information during trial nor adduce any evidence concerning

the allegations therein.

2. Prior to the commencement of the trial, the court, in the absence

of the jury, must arraign the defendant upon such information and advise

him or her that he or she may admit each such allegation, deny any such

allegation or remain mute with respect to any such allegation. Depending

upon the defendant's response, the trial of the indictment or

information must then proceed as follows:

(a)(i) If the previous conviction is for an aggravated family offense

as defined in section 240.75 of the penal law, and the defendant admits

the previous conviction or that it took place within the time period

specified in subdivision one of section 240.75 of the penal law, such

admitted allegation or allegations shall be deemed established for the

purposes of the present prosecution, including sentencing pursuant to

section 70.00 of the penal law. The court must submit the case to the

jury as if such admitted allegation or allegations were not elements of

the offense.

(ii) If the defendant denies the previous conviction or remains mute

with respect to it, the people may prove, beyond a reasonable doubt,

that element of the offense before the jury as a part of their case.

(iii) If the defendant denies that the previous conviction took place

within the time period specified in subdivision one of section 240.75 of

the penal law, or remains mute with respect to that matter, the people

may prove, beyond a reasonable doubt, before the jury as part of their

case, that the previous conviction took place within the time period

specified.

(b)(i) If the previous conviction is for a specified offense as

defined in subdivision two of section 240.75 of the penal law, other

than an aggravated family offense, and the defendant admits such

previous conviction, that it took place within the time period specified

in subdivision one of section 240.75 of the penal law, or that the

defendant and the person against whom the offense was committed were

members of the same family or household as defined in subdivision one of

section 530.11 of this chapter, such admitted allegation or allegations

shall be deemed established for the purposes of the present prosecution,

including sentencing pursuant to section 70.00 of the penal law. The

court must submit the case to the jury as if the admitted allegation or

allegations were not elements of the offense.

(ii) If the defendant denies the previous conviction or remains mute

with respect to it, the people may prove, beyond a reasonable doubt,

that element of the offense before the jury as a part of their case.

(iii) If the defendant denies that the previous conviction took place

within the time period specified in subdivision one of section 240.75 of

the penal law, or remains mute with respect to that matter, the people

may prove, beyond a reasonable doubt, before the jury as part of their

case, that the previous conviction took place within the time period

specified.

(iv) If the defendant denies that the defendant and the person against

whom the previous offense was committed were members of the same family

or household as defined in subdivision one of section 530.11 of this

chapter, or remains mute with respect to that matter, the people may

prove, beyond a reasonable doubt, that element of the offense before the

jury as a part of their case.