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2007 New York State Domestic Violence and Related Laws
The Following Bills Have Been Signed Into Law:
Human Trafficking (A.8679 Dinowitz / S.5902 Padavan)Establishes the state’s first law to strengthen penalties against human trafficking and provide assistance to victims. Creates a class B felony for those who engage in sex trafficking and a class D felony for labor trafficking. Clarifies current law to address “prostitution tourism”-- knowingly selling travel-related services to facilitate prostitution (class D felony of promoting prostitution in the third degree). Addresses the demand for prostitution by elevating the lowest level crime of patronizing a prostitute from a B to an A misdemeanor. Trafficking victims who have not been eligible for services because they are not U.S. citizens, or because they are foreign nationals who have not yet been certified as eligible for federal assistance programs, can now receive social services assistance from the state. Services include case management, emergency temporary housing, health and mental health care, drug addiction screening and treatment, language and translation services, and job training. Assistance can be provided to coordinate with the federal government to obtain special visas that allow victims to testify against traffickers and facilitate future eligibility for refugee status. An interagency task force will be created, co-chaired by DCJS and OTDA, to coordinate implementation of the new law, collect data on trafficking, and recommend best practices for training and community outreach, in order to assist law enforcement, service providers, prosecutors, defense attorneys and the general public in recognizing trafficking situations. OPDV will be a member of this task force.EFFECTIVE: November 1, 2007 Chapter 74(Creation of interagency task force is effective immediately)
Mandatory Arrest Extension (Budget Bill ~ A.4306-C/ S.2106-C)Extends the mandatory arrest provision for family offenses for two more years, until September 1, 2009.EFFECTIVE: April 9, 2007 Chapter 56
Criminal Mischief Added to Family Offenses (A.8854-A Weinstein / S.4542-A Kruger)Adds criminal mischief to the list of crimes defined as a “family offense” in the Family Court Act and criminal procedure law. EFFECTIVE: November 13, 2007 Chapter 541
Electronic Transmission of Orders of Protection (A.7554-C Rosenthal / S. 4704-C Volker)Allows the Family Courts in nine counties to participate in a three-year experimental program to file orders of protection electronically, or by facsimile transmission, with the appropriate police department or sheriff’s office -- eliminating the need for victims to personally transport orders to law enforcement. The designated counties include: Albany, Erie, Kings, Monroe, Nassau, New York, Onondaga, Richmond, and WestchesterEFFECTIVE: July 18, 2007 Chapter 330
Residential Lease Termination Orders (A.3386 Heastie / S.1922 Robach Chapter 73) Residential Lease Termination Amendment (A.9244 Heastie / S.6351 Robach Chapter 616)The residential lease termination bill was signed into law on June 4, 2007. It was amended on August 15, 2007. Together, the original law and the amendment: authorize courts to issue orders terminating the lease or rental agreement of a domestic violence victim who has obtained an order of protection and can prove that she is at substantial risk if she remains in the dwelling. The law requires multiple procedural steps: the victim must first request that the landlord release him/her from the lease; the victim’s financial obligations to the landlord must be satisfied; the victim must give notice to the landlord and co-tenant and, in the case of a co-tenant, it allows the lease to be bifurcated between the co-tenant and the victim. The provisions of the law went into effect on October 1, 2007.
Fees for Service of Orders of Protection ( A.7370 Hyer-Spencer / S.4020 Volker) Prohibits sheriffs from charging a victim to serve an order of protection, or any additional papers that accompany the order (custody, child support, etc.)EFFECTIVE: May 21, 2007 Chapter 36
Firearms/Licenses & Surrenders (A.618-A Paulin / S.4066 Robach)Lowers the required level of injury from serious physical injury to physical injury for two provisions in the criminal procedure law: 1) requires a criminal court, when issuing a temporary order of protection, to suspend a firearm license, order an individual ineligible for such a license and order the immediate surrender of all firearms owned or possessed by that individual, if the court receives information that the gun licensee was previously convicted of willfully violating an order of protection by inflicting physical injury upon another person, and 2) requires a criminal court to revoke a firearm license, order an individual ineligible for such a license and order the immediate surrender of all firearms owned or possessed by that individual, if found to have willfully violated an order of protection by inflicting physical injury upon another person.EFFECTIVE: August 2, 2007 Chapter 198
Detainer Warrant (A.8592-B Aubrey / S.6352 Lanza)Allows the director or deputy director of a local probation department to issue a warrant for a probationer who has violated a condition of probation to be taken into custody and detained if it is determined that s/he presents a sufficient safety risk. The law applies to probationers serving a probation sentence for conviction of certain sex offenses or a family offense, or is a youthful offender adjudicated for these crimes, and only in circumstances where the judge of the sentencing court or an alternative court is not available to issue a warrant. This is a three year pilot project to be conducted in four counties, to be selected by the Division of Probation and Correctional Alternatives (excludes New York City).EFFECTIVE: July 18, 2007 Chapter 377
Temporary Order of Protection With a Securing Order (A.8193 Weinstein / S.4538 Kruger)Allows a criminal court to issue a temporary order of protection when a securing order is issued and a defendant is committed to the custody of the sheriff. This provision would prevent a jailed defendant from communicating with a victim by telephone, mail, or other means.EFFECTIVE: July 1, 2007 Chapter 452
OPDV Advisory Council (A.8762 Young / S.3717 Golden)Adds a representative from the State Office for the Aging as an ex-officio member of OPDV’s Advisory Council.EFFECTIVE: July 3, 2007 Chapter 188
Differential Response in CPS Cases (A.6610-B Paulin / S.4009-B Rath)Allows local social services districts, with approval from the Office of Children and Family Services, to establish a differential response program for reported cases of child abuse or maltreatment. In addition to the traditional “investigation” option, a direct can create an assessment and services track. The law requires OCFS to consult with OPDV in developing criteria for case eligibility and for local district participation. EFFECTIVE: August 1, 2007 Chapter 452
Social Services Workers as Mandated Reporters (A.1693-A Tonko / S.849-A Farley)Expands the duty of social services workers to report to the State Central Registry any case where there is reasonable cause to believe that, based on personal knowledge facts, conditions or circumstances reported to them by third parties, a child has been abused or maltreated. EFECTIVE: October 15, 2007 Chapter 513
HIV Testing in Sex Offense Cases (A.9256 Mayersohn // S.6357 Saland)Authorizes a criminal court to order a defendant, in certain felony-level sex offense cases, to submit to HIV testing when an indictment has been issued or the case is proceeding in Supreme Court. The defendant must submit to HIV-related testing within six months after the date of the crimes charged, when testing would provide medical or psychological benefit to the victim. The victim must be notified of the test results and offered follow-up testing, if medically appropriate. Requires hospitals to provide information and appropriate therapies to sex offense victims who have been exposed to HIV and to advise victims of the availability of crime victim compensation for treatment.EFFECTIVE: November 1, 2007 Chapter 571
Sex Offender Management and Treatment Act (A.6162 Silver / S.3318 Volker)Allows the State to continue managing sex offenders after the expiration of their criminal sentences, either by indefinite civil confinement of those individuals determined to be the most dangerous predators, or by permitting strict, intensive longer periods of parole supervision for offenders who pose a lower risk of harm. Streamlines civil commitment procedures and mandates treatment for all sex offenders – both during incarceration and after release. Eliminates parole for Article 130 sex offenses and creates a new crime of "sexually motivated felony." Creates a new Office of Sex Offender Management in the Division of Criminal Justice Services, which will be responsible for developing comprehensive policies and standards for the evaluation, treatment and management of sex offenders.EFFECTIVE: April 13, 2007 Chapter 7
Sex Offender Registry – Failure to Register (A.7512-A Weisenberg / S.6277 Skelos)Increases the penalty for failing to register or verify as a sex offender, as required by the Sex Offender Registry Act. Current penalties for failure to register would increase from a class A misdemeanor to a class E felony for a first offense and from a class D to class E felony for a second or subsequent offense.
This is the part of the law addressing the death penalty:
Correction Law Article 22-B
ARTICLE 22-B THE DEATH PENALTY Section 650. Warrant for execution of death sentence. 651. Time of execution. 652. Delivery of warrant and confinement. 653. Transmittal of record to the governor. 654. Governor may consult. 655. Governor only to reprieve. 656. Proceeding when person under sentence of death may be incompetent. 657. Proceeding when person under sentence of death is pregnant. 658. Death penalty inflicted by lethal injection. 659. Facility. 660. Persons authorized to be present at execution. 661. Examination of convicted person's body and certificate. 662. Disposition of body.
§ 650. Warrant for execution of death sentence. 1. When a person is sentenced to the punishment of death, the justice or judge who presided at the sentencing proceeding, or if that justice or judge is unavailable for any reason, then any justice of the supreme court of the department in which the defendant was sentenced, must, within seven days, make out, sign and deliver to the sheriff of the county, a warrant directed to the commissioner or to the superintendent of an institution in the department designated by the commissioner. Such warrant shall state the conviction and sentence, appoint a week on which the sentence shall be executed, and command the commissioner to execute the sentence within that week. In counties within the city of New York, or in the county of Westchester, such warrant shall be made out as aforesaid, signed and delivered to the commissioner of correction of such city or county. 2. If the execution of the sentence shall be delayed while the conviction or sentence is being appealed, a justice or judge authorized to act pursuant to subdivision one of this section, at the conclusion of the state appellate process, if the conviction or sentence is not set aside, must, within seven days, make out, sign and deliver another warrant as provided in subdivision one of this section. If the execution of the sentence on the date appointed is delayed by any other cause, the justice or judge shall, as soon as such cause ceases to exist, make out, sign and deliver another warrant.
§ 651. Time of execution. The week of execution appointed in the warrant shall be not less than thirty days and not more than sixty days after the issuance of the warrant. The date of execution within said week shall be left to the discretion of the commissioner, but the date and hour of the execution shall be announced publicly no later than seven days prior to said execution.
§ 652. Delivery of warrant and confinement. 1. Within ten days after the issuance of a warrant as provided in section six hundred fifty of this article, the sheriff or the commissioner of correction, if within the city of New York or county of Westchester, must deliver the warrant and the person sentenced, if that person is not already in the custody of the department, to the department or to the superintendent of the state institution designated by the commissioner. Upon the issuance of the warrant the court shall cause a copy to be personally delivered to the convicted person and shall send a copy of the warrant to the convicted person's last attorney of record. 2. From the time of the delivery of the warrant and until the imposition of the punishment of death upon the convicted person, unless discharged from the sentence, such person may, in the commissioner's discretion, either be kept isolated from the general prison population in a designated institution or confined as otherwise provided by law.
The commissioner, in his discretion, may determine that the safety and security of the facility, or of the inmate population, or of the staff, or of the inmate, would not be jeopardized by the inmate's confinement within the general prison population.
3. The commissioner may promulgate rules and regulations concerning visitation of inmates sentenced to death. Such rules and regulations may provide that inmates sentenced to death are subject to different visitation policies and procedures than inmates who are not sentenced to death.
§ 653. Transmittal of record to the governor. Within a reasonable time following the issuance of the warrant as provided in section six hundred fifty of this article, the clerk of the court in the county in which the person was sentenced to death shall transmit to the governor a statement of conviction and sentence, and the transcripts of both the trial and the sentencing proceedings, including, to the extent practicable, any exhibits introduced therein.
§ 654. Governor may consult. The governor is authorized to request the opinion of the attorney general, the district attorney, and the convicted person's counsel, or any of them, as to whether the execution of the person should be reprieved or suspended.
§ 655. Governor only to reprieve. No judge, court, or officer, other than the governor, can reprieve the execution of a person sentenced to death. This section does not apply to a stay authorized by law.
§ 656. Proceeding when person under sentence of death may be incompetent. 1. The state may not execute an inmate who is incompetent. An inmate is "incompetent" when, as a result of mental disease or defect, he lacks the mental capacity to understand the nature and effect of the death penalty and why it is to be carried out. 2. Upon the filing of a petition in the supreme court in either the county in which an inmate sentenced to death is confined or in the county in which the inmate was prosecuted alleging that the inmate is incompetent, the court shall issue an order staying the execution if and to the extent a stay is necessary to permit determination of the petition. Upon application of either the inmate's counsel or the district attorney the petition may be transferred to the court in which the inmate was convicted unless such transfer would be unduly burdensome or impracticable. Promptly upon filing the petition, the court shall appoint a commission of three psychiatric examiners, hereinafter referred to as "the psychiatric commissioners," to inquire into the inmate's competence and report to the court as to the inmate's competence. The psychiatric commissioners shall be impartial and must be qualified psychiatrists or certified psychologists. Before commencing an inquiry, the psychiatric commissioners must take the oath prescribed in rule forty-three hundred fifteen of the civil practice law and rules to be taken by referees. The petition may be filed by the inmate, the inmate's counsel, an employee of the department, the inmate's legal guardian, a member of such inmate's immediate family or, in the event that the inmate does not have regular contact with a member of his or her immediate family, a bona fide friend who has maintained regular contact with the inmate. The petition must be accompanied by an affidavit of at least one qualified psychiatrist or certified psychologist who, based at least in part on personal examination, attests that in the psychiatrist's or psychologist's professional opinion the inmate is incompetent and lists the pertinent facts therefor. For purposes of this section the terms "qualified psychiatrist" and "certified psychologist" have the meaning set forth in section 730.10 of the criminal procedure law. 3. The petition shall be served upon either the district attorney who prosecuted the inmate or upon the district attorney for the county in which the inmate is confined. If the petition is served upon the district attorney for the county in which the inmate is confined, the court shall promptly notify the district attorney who prosecuted the inmate. Immediately upon appointing the psychiatric commissioners, the court shall direct that an examination of the convicted person promptly take place with all three of the psychiatric commissioners present at the same time. The court shall also direct, upon application of the inmate or the district attorney, that the inmate be examined by a qualified psychiatrist or certified psychologist designated by the inmate or the district attorney. Counsel for the inmate and the district attorney shall have the right to be present at each such examination. Upon the filing of a petition pursuant to subdivision two of this section, if the inmate does not have counsel and is financially unable to obtain counsel the court shall appoint competent counsel experienced in the trial of criminal matters to represent the inmate. 4. The psychiatric commissioners must receive and consider evidence offered by the inmate's counsel and the district attorney, including written submissions, testimony and expert psychiatric evidence. The proceeding before the psychiatric commissioners shall be conducted on the record but need not be conducted in accordance with the rules governing the admission of evidence at trial, but counsel for the people and the inmate shall have the right to cross-examine witnesses.
5. When the proceeding before the psychiatric commissioners has been concluded, they must forthwith provide a transcript of the proceeding, together with their findings of fact, to the court with their opinion thereon. Unless impracticable, the psychiatric commissioners shall so act within sixty days from the filing of the petition. When an inmate shall be found incompetent by a majority of the psychiatric commissioners, the court shall accept such finding unless clearly erroneous, and promptly enter an order finding the inmate to be incompetent, staying the execution of the inmate and directing that the inmate be committed to a secure facility under the jurisdiction of the office of mental health if the inmate's incompetency is the result of mental illness. In all other cases, the inmate shall remain in the custody of the department. When an inmate is found competent by a majority of the psychiatric commissioners, the court shall accept such finding unless clearly erroneous, promptly enter an order finding the inmate to be competent and vacating any stay previously issued, and the court shall promptly inform the judge or justice who issued the warrant for the execution of the inmate of the court's finding. Upon being so informed, the judge or justice shall promptly issue a new warrant in accordance with subdivision two of section six hundred fifty of this article. Any other provision of law notwithstanding, no other review, judicial or otherwise, shall be available with respect to an order finding the inmate to be incompetent or competent. If the court rejects the finding of a majority of the psychiatric commissioners on the ground that it is clearly erroneous, the court shall appoint another commission to proceed as provided in this section. 6. When an inmate has been committed to a secure facility pursuant to this section, the inmate shall remain there until the facility administrator determines that the inmate may be competent. Upon so determining, the facility administrator shall promptly notify the court that entered the order finding the inmate to be incompetent, and the court shall promptly notify counsel and the district attorneys and appoint another commission to proceed as provided in this section. 7. The court shall allow reasonable fees to the psychiatric commissioners. The court shall allow reasonable fees for time spent in court and for time reasonably expended out of court to counsel appointed pursuant to this section. The court shall allow all reasonably necessary costs, including without limitation the costs attendant to fees for the examination of the inmate by a qualified psychiatrist or certified psychologist, incurred by the inmate and the district attorney in connection with a petition pursuant to this section. Each claim for compensation and reimbursement shall be supported by a sworn statement specifying the time expended, services rendered, expenses incurred and reimbursement or compensation applied for or received in the same case from any other source. All such fees and costs shall be a state charge payable on vouchers approved by the court after audit by and on the warrant of the comptroller. 8. When a petition has previously been filed and determined pursuant to this section, the court in which a subsequent petition is filed or to which a subsequent petition is transferred, shall not issue an order staying the execution of the inmate unless the court finds, after notice to the district attorney who prosecuted the inmate and after affording the district attorney a reasonable opportunity to be heard in writing, that there is reasonable cause to believe that the inmate is incompetent; provided, however, that the court may issue an order staying the execution of the inmate, to the extent a stay is necessary to afford the district attorney an opportunity to be heard and such reasonable cause determination to be made.
§ 657. Proceeding when person under sentence of death is pregnant. 1. A sentence of death may not be carried out upon a woman while she is pregnant. 2. When the superintendent of the correctional facility where the inmate is confined is informed that reasonable grounds exist that a convicted person under sentence of death may be pregnant, the superintendent shall appoint a qualified physician to examine the convicted person and determine if she is pregnant. 3. Upon being informed by the superintendent that such convicted person is pregnant, the governor shall stay execution of the warrant to the extent necessary.
§ 659. Facility. The commissioner shall provide and maintain a suitable and efficient facility, enclosed from public view, within the confines of a designated correctional institution for the imposition of the punishment of death. That facility shall contain the apparatus and equipment necessary for the carrying out of executions by lethal injection.
§ 660. Persons authorized to be present at execution. 1. The commissioner, any persons designated by the commissioner to act as execution technicians or otherwise to assist in the execution, including correction officers, and a licensed physician or physicians may be present at the execution. The commissioner shall also select and invite the presence, by at least three days' prior notice, of a justice of the supreme court, the counsel for the convicted person, the district attorney and the sheriff of the county where the conviction was had, together with six adult citizens. The names of the execution technician or technicians shall never be disclosed, notwithstanding any other provision of law to the contrary, including article six of the public officers law. The names of the six adult citizens who witnessed the execution shall not be disclosed until after the execution. 2. The commissioner shall, at the request of the person sentenced to death, authorize and permit two clergymen to be present at the execution. 3. The inmate sentenced to death may name four relatives or bona fide friends to witness the execution, and the commissioner shall authorize said named relatives or friends of the inmate to witness the execution unless the commissioner determines that the presence of any named relative or friend at the execution would pose a threat to the safety or security of the designated correctional institution. No person under eighteen years of age shall be permitted to witness any execution.
§ 661. Examination of convicted person's body and certificate. 1. Immediately after the execution an examination of the body of the convicted person shall be made by the licensed physicians present at the execution and their report in writing stating the nature of the examination and occurrence of death, so made by them, shall be annexed to the certificate provided for in subdivision two of this section and filed therewith. 2. The commissioner shall prepare and sign a certificate setting forth the time and place of the execution and stating that the execution was conducted in conformity to the sentence of the court and the provisions of this article. The commissioner shall cause the certificate to be filed, within ten days after the execution, with the office of clerk of the court in which the conviction was had. 3. The commissioner may appoint a deputy with the department to execute the warrant of execution and to perform all other duties imposed upon the commissioner under this article.
§ 662. Disposition of body. 1. Prior to the execution, the convicted person shall be given the opportunity to decide in writing to whom his or her body shall be delivered after the execution. The commissioner or his or her designee shall sign and authorize the convicted person's request if the request is not contrary to law. If the convicted person does not indicate to whom such person's body shall be delivered, or if the person's request is contrary to law, the commissioner may deliver the convicted person's body to a relative by blood or marriage or a bona fide friend. If the body is not claimed by a relative or bona fide friend within seven days after execution, the body shall be delivered to a duly authorized and incorporated pathological and anatomical association in the state, if requested by an authorized association. 2. If the body of the convicted person is not claimed by a relative, bona fide friend, or a duly authorized and incorporated pathological and anatomical association, the commissioner shall cause the body to be disposed of in the same manner as are bodies of prisoners dying in the institution. Notwithstanding any other provision of law, no autopsy shall be required for the body of an inmate upon whom a sentence of death has been carried out.
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