N.Y. Criminal Procedure Law § 530.12: Protection for victims of family offenses

§ 530.12 Protection for victims of family offenses.

1. When a criminal action is pending involving a complaint charging

any crime or violation between spouses, former spouses, parent and

child, or between members of the same family or household, as members of

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

530.11 of this article, the court, in addition to any other powers

conferred upon it by this chapter may issue a temporary order of

protection in conjunction with any securing order committing the

defendant to the custody of the sheriff or as a condition of any order

of recognizance or bail or an adjournment in contemplation of dismissal.

(a) In addition to any other conditions, such an order may require the

defendant: (1) to stay away from the home, school, business or place of

employment of the family or household member or of any designated

witness, provided that the court shall make a determination, and shall

state such determination in a written decision or on the record, whether

to impose a condition pursuant to this paragraph, provided further,

however, that failure to make such a determination shall not affect the

validity of such temporary order of protection. In making such

determination, the court shall consider, but shall not be limited to

consideration of, whether the temporary order of protection is likely to

achieve its purpose in the absence of such a condition, conduct subject

to prior orders of protection, prior incidents of abuse, past or present

injury, threats, drug or alcohol abuse, and access to weapons;

(2) to permit a parent, or a person entitled to visitation by a court

order or a separation agreement, to visit the child at stated periods;

(3) to refrain from committing a family offense, as defined in

subdivision one of section 530.11 of this article, or any criminal

offense against the child or against the family or household member or

against any person to whom custody of the child is awarded, or from

harassing, intimidating or threatening such persons;

(4) to refrain from acts of commission or omission that create an

unreasonable risk to the health, safety and welfare of a child, family

or household member's life or health;

(5) to permit a designated party to enter the residence during a

specified period of time in order to remove personal belongings not in

issue in this proceeding or in any other proceeding or action under this

chapter, the family court act or the domestic relations law;

(6) (A) to refrain from intentionally injuring or killing, without

justification, any companion animal the defendant knows to be owned,

possessed, leased, kept or held by the victim or a minor child residing

in the household.

(B) "Companion animal", as used in this section, shall have the same

meaning as in subdivision five of section three hundred fifty of the

agriculture and markets law;

(7) (A) to promptly return specified identification documents to the

protected party, in whose favor the order of protection or temporary

order of protection is issued; provided, however, that such order may:

(i) include any appropriate provision designed to ensure that any such

document is available for use as evidence in this proceeding, and

available if necessary for legitimate use by the party against whom such

order is issued; and (ii) specify the manner in which such return shall

be accomplished.

(B) For purposes of this subparagraph, "identification document" shall

mean any of the following: (i) exclusively in the name of the protected

party: birth certificate, passport, social security card, health

insurance or other benefits card, a card or document used to access

bank, credit or other financial accounts or records, tax returns, any

driver's license, and immigration documents including but not limited to

a United States permanent resident card and employment authorization

document; and (ii) upon motion and after notice and an opportunity to be

heard, any of the following, including those that may reflect joint use

or ownership, that the court determines are necessary and are

appropriately transferred to the protected party: any card or document

used to access bank, credit or other financial accounts or records, tax

returns, and any other identifying cards and documents;

(8) (A) to refrain from remotely controlling any connected devices

affecting the home, vehicle or property of the person protected by the

order.

(B) For purposes of this subparagraph, "connected device" shall mean

any device, or other physical object that is capable of connecting to

the internet, directly or indirectly, and that is assigned an internet

protocol address or bluetooth address.

(b) The court may issue an order, pursuant to section two hundred

twenty-seven-c of the real property law, authorizing the party for whose

benefit any order of protection has been issued to terminate a lease or

rental agreement pursuant to section two hundred twenty-seven-c of the

real property law.

2. Notwithstanding any other provision of law, a temporary order of

protection issued or continued by a family court pursuant to section

eight hundred thirteen of the family court act shall continue in effect,

absent action by the appropriate criminal court pursuant to subdivision

three of this section, until the defendant is arraigned upon an

accusatory instrument filed pursuant to section eight hundred thirteen

of the family court act in such criminal court.

3. The court may issue a temporary order of protection ex parte upon

the filing of an accusatory instrument and for good cause shown. When a

family court order of protection is modified, the criminal court shall

forward a copy of such modified order to the family court issuing the

original order of protection; provided, however, that where a copy of

the modified order is transmitted to the family court by facsimile or

other electronic means, the original copy of such modified order and

accompanying affidavit shall be forwarded immediately thereafter.

3-a. Emergency powers when family court not in session; issuance of

temporary orders of protection. Upon the request of the petitioner, a

local criminal court may on an ex parte basis issue a temporary order of

protection pending a hearing in family court, provided that a sworn

affidavit, verified in accordance with subdivision one of section 100.30

of this chapter, is submitted: (i) alleging that the family court is not

in session; (ii) alleging that a family offense, as defined in

subdivision one of section eight hundred twelve of the family court act

and subdivision one of section 530.11 of this article, has been

committed; (iii) alleging that a family offense petition has been filed

or will be filed in family court on the next day the court is in

session; and (iv) showing good cause. Upon appearance in a local

criminal court, the petitioner shall be advised that he or she may

continue with the proceeding either in family court or upon the filing

of a local criminal court accusatory instrument in criminal court or

both. Upon issuance of a temporary order of protection where petitioner

requests that it be returnable in family court, the local criminal court

shall transfer the matter forthwith to the family court and shall make

the matter returnable in family court on the next day the family court

is in session, or as soon thereafter as practicable, but in no event

more than four calendar days after issuance of the order. The local

criminal court, upon issuing a temporary order of protection returnable

in family court pursuant to this subdivision, shall immediately forward,

in a manner designed to insure arrival before the return date set in the

order, a copy of the temporary order of protection and sworn affidavit

to the family court and shall provide a copy of such temporary order of

protection to the petitioner; provided, however, that where a copy of

the temporary order of protection and affidavit are transmitted to the

family court by facsimile or other electronic means, the original order

and affidavit shall be forwarded to the family court immediately

thereafter. Any temporary order of protection issued pursuant to this

subdivision shall be issued to the respondent, and copies shall be filed

as required in subdivisions six and eight of this section for orders of

protection issued pursuant to this section. Any temporary order of

protection issued pursuant to this subdivision shall plainly state the

date that such order expires which, in the case of an order returnable

in family court, shall be not more than four calendar days after its

issuance, unless sooner vacated or modified by the family court. A

petitioner requesting a temporary order of protection returnable in

family court pursuant to this subdivision in a case in which a family

court petition has not been filed shall be informed that such temporary

order of protection shall expire as provided for herein, unless the

petitioner files a petition pursuant to subdivision one of section eight

hundred twenty-one of the family court act on or before the return date

in family court and the family court issues a temporary order of

protection or order of protection as authorized under article eight of

the family court act. Nothing in this subdivision shall limit or

restrict the petitioner's right 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.

3-b. Emergency powers when family court not in session; modifications

of orders of protection or temporary orders of protection. Upon the

request of the petitioner, a local criminal court may on an ex parte

basis modify a temporary order of protection or order of protection

which has been issued under article four, five, six or eight of the

family court act pending a hearing in family court, provided that a

sworn affidavit verified in accordance with subdivision one of section

100.30 of this chapter is submitted: (i) alleging that the family court

is not in session and (ii) showing good cause, including a showing that

the existing order is insufficient for the purposes of protection of the

petitioner, the petitioner's child or children or other members of the

petitioner's family or household. The local criminal court shall make

the matter regarding the modification of the order returnable in family

court on the next day the family court is in session, or as soon

thereafter as practicable, but in no event more than four calendar days

after issuance of the modified order. The court shall immediately

forward a copy of the modified order, if any, and sworn affidavit to the

family court and shall provide a copy of such modified order, if any,

and affidavit to the petitioner; provided, however, that where copies of

such modified order and affidavit are transmitted to the family court by

facsimile or other electronic means, the original copies of such

modified order and affidavit shall be forwarded to the family court

immediately thereafter. Any modified temporary order of protection or

order of protection issued pursuant to this subdivision shall be issued

to the respondent and copies shall be filed as required in subdivisions

six and eight of this section for orders of protection issued pursuant

to this section.

4. The court may issue or extend a temporary order of protection ex

parte or on notice simultaneously with the issuance of a warrant for the

arrest of defendant. Such temporary order of protection shall continue

in effect until the day the defendant subsequently appears in court

pursuant to such warrant or voluntarily or otherwise, unless there is a

dismissal of the matter. The court shall inform the defendant when

issuing the order of protection that it will remain in effect if the

defendant fails to appear in court on a subsequent court date. Provided,

however, that the court may vacate such order if a defendant fails to

appear at a subsequent court date if, after providing the parties an

opportunity to be heard, the court determines vacating the order of

protection is in the interest of justice, in which case the vacatur

shall be effective at such a time that the attorney for the defendant

files with the court a confirmation that the defendant has acknowledged

the conditional vacatur.

5. * Upon sentencing on a conviction for any crime or violation

between spouses, between a parent and child, or between members of the

same family or household as defined in subdivision one of section 530.11

of this article, the court may in addition to any other disposition,

including a conditional discharge or youthful offender adjudication,

enter an order of protection. Where a temporary order of protection was

issued, the court shall state on the record the reasons for issuing or

not issuing an order of protection. The duration of such an order shall

be fixed by the court and: (A) in the case of a felony conviction, shall

not exceed the greater of: (i) eight years from the date of such

sentencing, except where the sentence is or includes a sentence of

probation on a conviction for a felony sexual assault, as provided in

subparagraph (iii) of paragraph (a) of subdivision three of section

65.00 of the penal law, in which case, ten years from the date of such

sentencing, or (ii) eight years from the date of the expiration of the

maximum term of an indeterminate or the term of a determinate sentence

of imprisonment actually imposed; or (B) in the case of a conviction for

a class A misdemeanor, shall not exceed the greater of: (i) five years

from the date of such sentencing, except where the sentence is or

includes a sentence of probation on a conviction for a misdemeanor

sexual assault, as provided in subparagraph (ii) of paragraph (b) of

subdivision three of section 65.00 of the penal law, in which case, six

years from the date of such sentencing, or (ii) five years from the date

of the expiration of the maximum term of a definite or intermittent term

actually imposed; or (C) in the case of a conviction for any other

offense, shall not exceed the greater of: (i) two years from the date of

sentencing, or (ii) two years from the date of the expiration of the

maximum term of a definite or intermittent term actually imposed. For

purposes of determining the duration of an order of protection entered

pursuant to this subdivision, a conviction shall be deemed to include a

conviction that has been replaced by a youthful offender adjudication.

In addition to any other conditions, such an order may require the

defendant:

* NB Effective until September 1, 2027

* Upon sentencing on a conviction for any crime or violation between

spouses, between a parent and child, or between members of the same

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

this article, the court may in addition to any other disposition,

including a conditional discharge or youthful offender adjudication,

enter an order of protection. Where a temporary order of protection was

issued, the court shall state on the record the reasons for issuing or

not issuing an order of protection. The duration of such an order shall

be fixed by the court and, in the case of a felony conviction, shall not

exceed the greater of: (i) five years from the date of such sentencing,

or (ii) three years from the date of the expiration of the maximum term

of an indeterminate sentence of imprisonment actually imposed; or in the

case of a conviction for a class A misdemeanor, shall not exceed three

years from the date of such sentencing; or in the case of a conviction

for any other offense, shall not exceed one year from the date of

sentencing. For purposes of determining the duration of an order of

protection entered pursuant to this subdivision, a conviction shall be

deemed to include a conviction that has been replaced by a youthful

offender adjudication. In addition to any other conditions, such an

order may require the defendant:

* NB Effective September 1, 2027

(a) to stay away from the home, school, business or place of

employment of the family or household member, the other spouse or the

child, or of any witness designated by the court, provided that the

court shall make a determination, and shall state such determination in

a written decision or on the record, whether to impose a condition

pursuant to this paragraph, provided further, however, that failure to

make such a determination shall not affect the validity of such order of

protection. In making such determination, the court shall consider, but

shall not be limited to consideration of, whether the order of

protection is likely to achieve its purpose in the absence of such a

condition, conduct subject to prior orders of protection, prior

incidents of abuse, extent of past or present injury, threats, drug or

alcohol abuse, and access to weapons;

(b) to permit a parent, or a person entitled to visitation by a court

order or a separation agreement, to visit the child at stated periods;

(c) to refrain from committing a family offense, as defined in

subdivision one of section 530.11 of this article, or any criminal

offense against the child or against the family or household member or

against any person to whom custody of the child is awarded, or from

harassing, intimidating or threatening such persons;

(d) to refrain from acts of commission or omission that create an

unreasonable risk to the health, safety and welfare of a child, family

or household member's life or health;

(e) to permit a designated party to enter the residence during a

specified period of time in order to remove personal belongings not in

issue in this proceeding or in any other proceeding or action under this

chapter, the family court act or the domestic relations law; or

(f) (i) to refrain from remotely controlling any connected devices

affecting the home, vehicle or property of the person protected by the

order.

(ii) For purposes of this paragraph, "connected device" shall mean any

device, or other physical object that is capable of connecting to the

internet, directly or indirectly, and that is assigned an internet

protocol address or bluetooth address.

6. An order of protection or a temporary order of protection issued

pursuant to subdivision one, two, three, four or five of this section

shall bear in a conspicuous manner the term "order of protection" or

"temporary order of protection" as the case may be and a copy shall be

filed by the clerk of the court with the sheriff's office in the county

in which the complainant resides, or, if the complainant resides within

a city, with the police department of such city. The order of protection

or temporary order of protection shall also contain the following

notice: "This order of protection will remain in effect even if the

protected party has, or consents to have, contact or communication with

the party against whom the order is issued. This order of protection can

only be modified or terminated by the court. The protected party cannot

be held to violate this order nor be arrested for violating this

order.". The absence of such language shall not affect the validity of

such order. A copy of such order of protection or temporary order of

protection may from time to time be filed by the clerk of the court with

any other police department or sheriff's office having jurisdiction of

the residence, work place, and school of anyone intended to be protected

by such order. A copy of the order may also be filed by the complainant

at the appropriate police department or sheriff's office having

jurisdiction. Any subsequent amendment or revocation of such order shall

be filed in the same manner as herein provided.

Such order of protection shall plainly state the date that such order

expires.

6-a. The court shall inquire as to the existence of any other orders

of protection between the defendant and the person or persons for whom

the order of protection is sought.

7. A family offense subject to the provisions of this section which

occurs subsequent to the issuance of an order of protection under this

chapter shall be deemed a new offense for which the complainant may seek

to file a new accusatory instrument and may file a family court petition

under article eight of the family court act as provided for in section

100.07 of this chapter.

8. In any proceeding in which an order of protection or temporary

order of protection or a warrant has been issued under this section, the

clerk of the court shall issue to the complainant and defendant and

defense counsel and to any other person affected by the order a copy of

the order of protection or temporary order of protection and ensure that

a copy of the order of protection or temporary order of protection be

transmitted to the local correctional facility where the individual is

or will be detained, the state or local correctional facility where the

individual is or will be imprisoned, and the supervising probation

department or department of corrections and community supervision where

the individual is under probation or parole supervision. The

presentation of a copy of such order or a warrant to any peace officer

acting pursuant to his or her special duties or police officer shall

constitute authority for him or her to arrest a person who has violated

the terms of such order and bring such person before the court and,

otherwise, so far as lies within his or her power, to aid in securing

the protection such order was intended to afford. The protected party in

whose favor the order of protection or temporary order of protection is

issued may not be held to violate an order issued in his or her favor

nor may such protected party be arrested for violating such order.

9. If no warrant, order or temporary order of protection has been

issued by the court, and an act alleged to be a family offense as

defined in section 530.11 of this chapter is the basis of the arrest,

the magistrate shall permit the complainant to file a petition,

information or accusatory instrument and for reasonable cause shown,

shall thereupon hold such respondent or defendant, admit to, fix or

accept bail, or parole him or her for hearing before the family court or

appropriate criminal court as the complainant shall choose in accordance

with the provisions of section 530.11 of this chapter.

10. Punishment for contempt based on a violation of an order of

protection or temporary order of protection shall not affect the

original criminal action, nor reduce or diminish a sentence upon

conviction for the original crime or violation alleged therein or for a

lesser included offense thereof.

11. If a defendant is brought before the court for failure to obey any

lawful order issued under this section, or an order of protection issued

by a court of competent jurisdiction in another state, territorial or

tribal jurisdiction, and if, after hearing, the court is satisfied by

competent proof that the defendant has willfully failed to obey any such

order, the court may:

(a) revoke an order of recognizance or release under non-monetary

conditions or revoke an order of bail or order forfeiture of such bail

and commit the defendant to custody; or

(b) restore the case to the calendar when there has been an

adjournment in contemplation of dismissal and commit the defendant to

custody; or

(c) revoke a conditional discharge in accordance with section 410.70

of this chapter and impose probation supervision or impose a sentence of

imprisonment in accordance with the penal law based on the original

conviction; or

(d) revoke probation in accordance with section 410.70 of this chapter

and impose a sentence of imprisonment in accordance with the penal law

based on the original conviction. In addition, if the act which

constitutes the violation of the order of protection or temporary order

of protection is a crime or a violation the defendant may be charged

with and tried for that crime or violation.

12. The chief administrator of the courts shall promulgate appropriate

uniform temporary orders of protection and orders of protection forms to

be used throughout the state. Such forms shall be promulgated and

developed in a manner to ensure the compatability of such forms with the

statewide computerized registry established pursuant to section two

hundred twenty-one-a of the executive law.

13. Notwithstanding the foregoing provisions, an order of protection,

or temporary order of protection when applicable, may be entered against

a former spouse and persons who have a child in common, regardless of

whether such persons have been married or have lived together at any

time, or against a member of the same family or household as defined in

subdivision one of section 530.11 of this article.

14. The people shall make reasonable efforts to notify the complainant

alleging a crime constituting a family offense when the people have

decided to decline prosecution of such crime, to dismiss the criminal

charges against the defendant or to enter into a plea agreement. The

people shall advise the complainant of the right to file a petition in

the family court pursuant to section 100.07 of this chapter and section

one hundred fifteen of the family court act.

In any case where allegations of criminal conduct are transferred from

the family court to the criminal court pursuant to paragraph (ii) of

subdivision (b) of section eight hundred forty-six of the family court

act, the people shall advise the family court making the transfer of any

decision to file an accusatory instrument against the family court

respondent and shall notify such court of the disposition of such

instrument and the sentence, if any, imposed upon such respondent.

Release of a defendant from custody shall not be delayed because of

the requirements of this subdivision.

15. Any motion to vacate or modify an order of protection or temporary

order of protection shall be on notice to the non-moving party, except

as provided in subdivision three-b of this section.