Governor Cuomo signed new legislation on October 25, 2012 that among other things, creates a new domestic violence felony and takes a step toward transforming the purpose of bail in New York State from ensuring the return of the accused to preventative detention. Here is a link to the full text of the actual legislation signed by the Governor and set to go into effect.
The new offense signed into law is called "Aggravated Family Offense." The law makes it an E felony (the lowest grade felony, punishable by up to four years in state prison) to commit certain specified misdemeanor offenses within five years of having been convicted of another specified misdemeanor offense. The new law lists a variety of "specified offenses" but they are generally offenses associated with the broad category of domestic violence such as assault in the third degree.
Essentially, the law is aimed at repeat misdemeanor domestic violence offenders. Such offenders, it is perceived, are able to skate through the criminal justice system again and again facing "only" misdemeanor charges. This new law will permit the Government to target such repeat misdemeanor offenders now as felony offenders where the stakes will be felony convictions and state prison sentences.
The new bail provisions now allow judges to consider two new factors when deciding whether or how much bail to set in domestic violence cases. The two new factors identified in the new law are: (1) Any prior violation of an order of protection; and (2) The accused's history of use or possession of a firearm.
Aggravated Family Offense
While at first glance, it might seem obvious that creating a new felony offense for repeat misdemeanor offenders is going to have an amazing impact on repeat offenders. This is true, however, only if the tools available against repeat offenders were previously weak in comparison.
So let's have a look at the tools that were previously available. Under the old rules, a person arrested for assault in the third degree for a second time in five years could "only" be prosecuted for a misdemeanor. Let's examine how awful the options were for the Government in this situation. Assault in the third degree is an A misdemeanor. That means that if the Government were truly angry at the defendant, and wanted the defendant to pay severely, the Government completely had it within its power to refuse all plea negotiations and insist on taking the defendant to trial. At this trial, if the Government prevailed, the Government could then seek the maximum jail sentence of one year in jail. The only obstacle to this plan would be the judge, who would have the power to offer less time than one year either as a plea bargin prior to trial or as the sentence after conviction.
As a practical reality, if the Government made substantial records about why they were seeking the maximum sentences in the context of the domestic violence situation, I doubt there would be significant opposition from the Court. In the case of "regular" persistent misdemeanor cases, Judges frequently undermine the Government's desire to seek near maximum misdemeanor sentences. Yet this is in contexts such as homeless people charged in their tenth shoplift of a can of tuna. Domestic Violence is an extremely sensitive category Judges take extremely seriously.
In terms of the amount of jail time faced, of course the new law exposes a person to up to four years state prison. Yet, defendants are no more likely to get 4 years state prison for an E felony than they are likely to get 1 year for a misdemeanor. Probably the biggest issue for those accused of Aggravated Family Offense is not so much the jail time but the prospect of being labeled a convicted felon. A felony conviction is a life changing event that will certainly have far reaching consequences for most people. It will mean losing jobs currently held, losing the ability to get jobs in the future, and for non-citizens it will be an almost certain path to removal from the country.
Practically, in the day to day workings of the court, it will probably be a game changer in the negotiation process. Being charged with a felony will mean a greater likelihood of ending negotiations with a criminal conviction as opposed to risking a felony conviction after a trial.
False Accusers Rejoice
One of the persistent nagging issues in the realm of domestic violence is the issue of false accusations. Domestic situations are by their very nature driven by strong emotions and nobody can deny that strong emotions can lead to poor decision making - including the filing and pursuing of false accusations against a husband or wife. Whether it is in the context of a divorce or divorce-custody battle, or whether it is the result of discovering an unfaithful partner, the list of motivations to file false domestic violence claims is boundless, and it includes anger at having been the victim of domestic violence in the past.
Those who are willing to engage in creating false accusations now have even more power because even misdemeanor accusations can lead to felony charges and felony convictions - with life changing consequences that make a few days in jail seem like a picnic. Careers are out the window and the possibility of removed from the country is enhanced for non-citizens.
For many people, including NYC teachers, and many people who work for the City, the simple accusation of a felony offense will get them suspended (often without pay) immediately from their jobs until the matter is resolved. By the way, if a person wants to contest the charges, the time until a case will be finished at trial will be anywhere from six months to a year or so in New York City. That's six months to a year out of work, out of pay, and you haven't been found guilty of anything.
Therefore, while it used to be that making felony accusations against someone generally required some substantial evidence, we will now be entering a world where far less substantial accusations can lead to felony accusations through the Aggravated Family Offense law. I hope that the good accomplished by this new set of circumstances outweighs the bad that could come as a result of empowering those willing to engage in false accusations.
New Bail Approach
The new legislation is also a bit of a game changer in the world of bail, although practically, I'm not sure how much difference it will make. The new law permits judges to consider a couple of factors that are unrelated to the direct question of whether or not the person will return to court when asked. Traditionally, in New York, judges are only supposed to consider what it will take to make sure that the person accused of a crime returns to court when asked. New York has not been one of those places where "preventative detention" is permitted. Therefore, unless some fact can be identified which makes it unlikely that the accused will return to court when asked, judges are not supposed to set bail.
The new legislation permits judges, in the context of domestic violence accusations, to consider whether or not an accused as violated an order of protection in the past and allos judges to consider the accused's prior use of or possession of guns. Presumably, if an accused has possessed a gun, then this would be something that would allow a judge to set or increase bail.
The impact of this legislation is more philosophical than practical. The new provisions begin to move New York closer to a place where the accusation of a crime might trigger a "preventative detention" analysis where some sort of assessment is made about the "danger to the community" posed by releasing the accused.
But as a practical reality, these two added factors I don't believe will change much. Bail is largely a creature of discretion with the judge at arraignments. A judge is not required to list the reasons for setting bail, nor is the judge required to publish a calculus of his bail decision making process for review. Both the prior existence of and adherence to orders of protection and alleged use of weapons in the past are factors that I believe that judges consider at some level already, to the extent that the information is brought to their attention by the Government at arraignment. At the very least, the issue of adherence to prior orders of protection is arguably already a legitimate factor to consider since it involves the willingness of the accused to abide by Court Orders, such as the Court Order to come back to court. Gun possession and use in the past may be a bit more of stretch, but especially in the context of domestic violence cases, Judges have not, in my experience, been shy about setting bail, and substantial bail at that.