CPL § 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 may continue in
effect until the day the defendant subsequently appears in court
pursuant to such warrant or voluntarily or otherwise.
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, 2023
* 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, 2023
(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.
NYSentencing