N.Y. Criminal Procedure Law § 370.15: Procedure for determining whether certain misdemeanor crimes are serious offenses under the penal law

§ 370.15 Procedure for determining whether certain misdemeanor crimes

are serious offenses under the penal law.

1. When a defendant has been charged with assault in the third degree,

menacing in the third degree, menacing in the second degree, criminal

obstruction of breathing or blood circulation, unlawful imprisonment in

the second degree, coercion in the third degree, criminal tampering in

the third degree, criminal contempt in the second degree, harassment in

the first degree, aggravated harassment in the second degree, criminal

trespass in the third degree, criminal trespass in the second degree,

arson in the fifth degree, or attempt to commit any of the above-listed

offenses, the people shall, at arraignment or no later than forty-five

days after arraignment, serve on the defendant and file with the court a

notice alleging that the defendant and the person alleged to be the

victim of such crime were members of the same family or household as

defined in subdivision one of section 530.11 of this chapter.

2. Such notice shall include the name of the person alleged to be the

victim of such crime and shall specify the nature of the alleged

relationship as set forth in subdivision one of section 530.11 of this

chapter. Upon conviction of such offense, the court shall advise the

defendant that he or she is entitled to a hearing solely on the

allegation contained in the notice and, if necessary, an adjournment of

the sentencing proceeding in order to prepare for such hearing, and that

if such allegation is sustained, that determination and conviction will

be reported to the division of criminal justice services. If such

allegation is sustained, the court shall report the determination and

conviction to the division of criminal justice services within three

business days.

3. After having been advised by the court as provided in subdivision

two of this section, the defendant may stipulate or admit, orally on the

record or in writing, that he or she is related or situated to the

victim of such crime in the manner described in subdivision one of this

section. In such case, such relationship shall be deemed established. If

the defendant denies that he or she is related or situated to the victim

of the crime as alleged in the notice served by the people, or stands

mute with respect to such allegation, then the people shall bear the

burden to prove beyond a reasonable doubt that the defendant is related

or situated to the victim in the manner alleged in the notice. The court

may consider reliable hearsay evidence submitted by either party

provided that it is relevant to the determination of the allegation.

Facts previously proven at trial or elicited at the time of entry of a

plea of guilty shall be deemed established beyond a reasonable doubt and

shall not be relitigated. At the conclusion of the hearing, or upon such

a stipulation or admission, as applicable, the court shall make a

specific written determination with respect to such allegation.