N.Y. Criminal Procedure Law § 530.11: Procedures for family offense matters

§ 530.11 Procedures for family offense matters.

1. Jurisdiction. The family court and the criminal courts shall have

concurrent jurisdiction over any proceeding concerning acts which would

constitute disorderly conduct, unlawful dissemination or publication of

an intimate image, harassment in the first degree, harassment in the

second degree, aggravated harassment in the second degree, sexual

misconduct, forcible touching, sexual abuse in the third degree, sexual

abuse in the second degree as set forth in subdivision one of section

130.60 of the penal law, stalking in the first degree, stalking in the

second degree, stalking in the third degree, stalking in the fourth

degree, criminal mischief, menacing in the second degree, menacing in

the third degree, reckless endangerment, strangulation in the first

degree, strangulation in the second degree, criminal obstruction of

breathing or blood circulation, assault in the second degree, assault in

the third degree, an attempted assault, identity theft in the first

degree, identity theft in the second degree, identity theft in the third

degree, grand larceny in the fourth degree, grand larceny in the third

degree, coercion in the second degree or coercion in the third degree as

set forth in subdivisions one, two and three of section 135.60 of the

penal law between spouses or former spouses, or between parent and child

or between members of the same family or household except that if the

respondent would not be criminally responsible by reason of age pursuant

to section 30.00 of the penal law, then the family court shall have

exclusive jurisdiction over such proceeding. Notwithstanding a

complainant's election to proceed in family court, the criminal court

shall not be divested of jurisdiction to hear a family offense

proceeding pursuant to this section. For purposes of this section,

"disorderly conduct" includes disorderly conduct not in a public place.

For purposes of this section, "members of the same family or household"

with respect to a proceeding in the criminal courts shall mean the

following:

(a) persons related by consanguinity or affinity;

(b) persons legally married to one another;

(c) persons formerly married to one another regardless of whether they

still reside in the same household;

(d) persons who have a child in common, regardless of whether such

persons have been married or have lived together at any time;

(e) persons who are not related by consanguinity or affinity and who

are or have been in an intimate relationship regardless of whether such

persons have lived together at any time. Factors the court may consider

in determining whether a relationship is an "intimate relationship"

include but are not limited to: the nature or type of relationship,

regardless of whether the relationship is sexual in nature; the

frequency of interaction between the persons; and the duration of the

relationship. Neither a casual acquaintance nor ordinary fraternization

between two individuals in business or social contexts shall be deemed

to constitute an "intimate relationship"; and

(f) persons who are related by consanguinity or affinity to parties

who are or have been in an intimate relationship as defined in paragraph

(e) of this subdivision.

2. Information to petitioner or complainant. The chief administrator

of the courts shall designate the appropriate probation officers,

warrant officers, sheriffs, police officers, district attorneys or any

other law enforcement officials, to inform any petitioner or complainant

bringing a proceeding under this section before such proceeding is

commenced, of the procedures available for the institution of family

offense proceedings, including but not limited to the following:

(a) That there is concurrent jurisdiction with respect to family

offenses in both family court and the criminal courts;

(b) That a family court proceeding is a civil proceeding and is for

the purpose of attempting to stop the violence, end family disruption

and obtain protection. That referrals for counseling, or counseling

services, are available through probation for this purpose;

(c) That a proceeding in the criminal courts is for the purpose of

prosecution of the offender and can result in a criminal conviction of

the offender;

(d) That a proceeding or action subject to the provisions of this

section is initiated at the time of the filing of an accusatory

instrument or family court petition, not at the time of arrest, or

request for arrest, if any;

(f) That an arrest may precede the commencement of a family court or a

criminal court proceeding, but an arrest is not a requirement for

commencing either proceeding.

(h) At such time as the complainant first appears before the court on

a complaint or information, the court shall advise the complainant that

the complainant may: continue with the proceeding in criminal court; or

have the allegations contained therein heard in a family court

proceeding; or proceed concurrently in both criminal and family court.

Notwithstanding a complainant's election to proceed in family court, the

criminal court shall not be divested of jurisdiction to hear a family

offense proceeding pursuant to this section;

(i) Nothing herein shall be deemed to limit or restrict complainant's

rights to proceed directly and without court referral in either a

criminal or family court, or both, as provided for in section one

hundred fifteen of the family court act and section 100.07 of this

chapter;

2-a. Upon the filing of an accusatory instrument charging a crime or

violation described in subdivision one of this section between members

of the same family or household, as such terms are defined in this

section, or as soon as the complainant first appears before the court,

whichever is sooner, the court shall advise the complainant of the right

to proceed in both the criminal and family courts, pursuant to section

100.07 of this chapter.

3. Official responsibility. No official or other person designated

pursuant to subdivision two of this section shall discourage or prevent

any person who wishes to file a petition or sign a complaint from having

access to any court for that purpose.

4. When a person is arrested for an alleged family offense or an

alleged violation of an order of protection or temporary order of

protection or arrested pursuant to a warrant issued by the supreme or

family court, and the supreme or family court, as applicable, is not in

session, such person shall be brought before a local criminal court in

the county of arrest or in the county in which such warrant is

returnable pursuant to article one hundred twenty of this chapter. Such

local criminal court may issue any order authorized under subdivision

eleven of section 530.12 of this article, section one hundred

fifty-four-d or one hundred fifty-five of the family court act or

subdivision three-b of section two hundred forty or subdivision two-a of

section two hundred fifty-two of the domestic relations law, in addition

to discharging other arraignment responsibilities as set forth in this

chapter. In making such order, the local criminal court shall consider

de novo the recommendation and securing order, if any, made by the

supreme or family court as indicated on the warrant or certificate of

warrant. Unless the petitioner or complainant requests otherwise, the

court, in addition to scheduling further criminal proceedings, if any,

regarding such alleged family offense or violation allegation, shall

make such matter returnable in the supreme or family court, as

applicable, on the next day such court is in session.

5. Filing and enforcement of out-of-state orders of protection. A

valid order of protection or temporary order of protection issued by a

court of competent jurisdiction in another state, territorial or tribal

jurisdiction shall be accorded full faith and credit and enforced as if

it were issued by a court within the state for as long as the order

remains in effect in the issuing jurisdiction in accordance with

sections two thousand two hundred sixty-five and two thousand two

hundred sixty-six of title eighteen of the United States Code.

(a) An order issued by a court of competent jurisdiction in another

state, territorial or tribal jurisdiction shall be deemed valid if:

(i) the issuing court had personal jurisdiction over the parties and

over the subject matter under the law of the issuing jurisdiction;

(ii) the person against whom the order was issued had reasonable

notice and an opportunity to be heard prior to issuance of the order;

provided, however, that if the order was a temporary order of protection

issued in the absence of such person, that notice had been given and

that an opportunity to be heard had been provided within a reasonable

period of time after the issuance of the order; and

(iii) in the case of orders of protection or temporary orders of

protection issued against both a petitioner, plaintiff or complainant

and respondent or defendant, the order or portion thereof sought to be

enforced was supported by: (A) a pleading requesting such order,

including, but not limited to, a petition, cross-petition or

counterclaim; and (B) a judicial finding that the requesting party is

entitled to the issuance of the order which may result from a judicial

finding of fact, judicial acceptance of an admission by the party

against whom the order was issued or judicial finding that the party

against whom the order was issued had given knowing, intelligent and

voluntary consent to its issuance.

(b) Notwithstanding the provisions of article fifty-four of the civil

practice law and rules, an order of protection or temporary order of

protection issued by a court of competent jurisdiction in another state,

territorial or tribal jurisdiction, accompanied by a sworn affidavit

that upon information and belief such order is in effect as written and

has not been vacated or modified, may be filed without fee with the

clerk of the court, who shall transmit information regarding such order

to the statewide registry of orders of protection and warrants

established pursuant to section two hundred twenty-one-a of the

executive law; provided, however, that such filing and registry entry

shall not be required for enforcement of the order.

6. Notice. Every police officer, peace officer or district attorney

investigating a family offense under this article shall advise the

victim of the availability of a shelter or other services in the

community, and shall immediately give the victim written notice of the

legal rights and remedies available to a victim of a family offense

under the relevant provisions of this chapter and the family court act.

Such notice shall be prepared, at minimum, in plain English, Spanish,

Chinese and Russian and if necessary, shall be delivered orally, and

shall include but not be limited to the information contained in the

following statement:

"Are you the victim of domestic violence? If you need help now, you

can call 911 for the police to come to you. You can also call a domestic

violence hotline. You can have a confidential talk with an advocate at

the hotline about help you can get in your community including: where

you can get treatment for injuries, where you can get shelter, where you

can get support, and what you can do to be safe. The New York State

24-hour Domestic & Sexual Violence Hotline number is (insert the

statewide multilingual 800 number). They can give you information in

many languages. If you are deaf or hard of hearing, call 711.

This is what the police can do:

They can help you and your children find a safe place such as a family

or friend's house or a shelter in your community.

You can ask the officer to take you or help you and your children get

to a safe place in your community.

They can help connect you to a local domestic violence program.

They can help you get to a hospital or clinic for medical care.

They can help you get your personal belongings.

They must complete a report discussing the incident. They will give

you a copy of this police report before they leave the scene. It is

free.

They may, and sometimes must, arrest the person who harmed you if you

are the victim of a crime. The person arrested could be released at any

time, so it is important to plan for your safety.

If you have been abused or threatened, this is what you can ask the

police or district attorney to do:

File a criminal complaint against the person who harmed you.

Ask the criminal court to issue an order of protection for you and

your child if the district attorney files a criminal case with the

court.

Give you information about filing a family offense petition in your

local family court.

You also have the right to ask the family court for an order of

protection for you and your children.

This is what you can ask the family court to do:

To have your family offense petition filed the same day you go to

court.

To have your request heard in court the same day you file or the next

day court is open.

Only a judge can issue an order of protection. The judge does that as

part of a criminal or family court case against the person who harmed

you. An order of protection in family court or in criminal court can

say:

That the other person have no contact or communication with you by

mail, phone, computer or through other people.

That the other person stay away from you and your children, your home,

job or school.

That the other person not assault, harass, threaten, strangle, or

commit another family offense against you or your children.

That the other person turn in their firearms and firearms licenses,

and not get any more firearms.

That you have temporary custody of your children.

That the other person pay temporary child support.

That the other person not harm your pets or service animals.

If the family court is closed because it is night, a weekend, or a

holiday, you can go to a criminal court to ask for an order of

protection.

If you do not speak English or cannot speak it well, you can ask the

police, the district attorney, or the criminal or family court to get

you an interpreter who speaks your language. The interpreter can help

you explain what happened.

You can get the forms you need to ask for an order of protection at

your local family court (insert addresses and contact information for

courts). You can also get them online: www.NYCourts.gov/forms.

You do not need a lawyer to ask for an order of protection.

You have a right to get a lawyer in the family court. If the family

court finds that you cannot afford to pay for a lawyer, it must get you

one for free.

If you file a complaint or family court petition, you will be asked to

swear to its truthfulness because it is a crime to file a legal document

that you know is false."

The division of criminal justice services in consultation with the

state office for the prevention of domestic violence shall prepare the

form of such written notice consistent with provisions of this section

and distribute copies thereof to the appropriate law enforcement

officials pursuant to subdivision nine of section eight hundred

forty-one of the executive law.

Additionally, copies of such notice shall be provided to the chief

administrator of the courts to be distributed to victims of family

offenses through the criminal court at such time as such persons first

come before the court and to the state department of health for

distribution to all hospitals defined under article twenty-eight of the

public health law. No cause of action for damages shall arise in favor

of any person by reason of any failure to comply with the provisions of

this subdivision except upon a showing of gross negligence or willful

misconduct.

7. Rules of court regarding concurrent jurisdiction. The chief

administrator of the courts, pursuant to paragraph (e) of subdivision

two of section two hundred twelve of the judiciary law, shall promulgate

rules to facilitate record sharing and other communication between the

criminal and family courts, subject to applicable provisions of this

chapter and the family court act pertaining to the confidentiality,

expungement and sealing of records, when such courts exercise concurrent

jurisdiction over family offense proceedings.