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Legal Statutes: New York

UPDATED August 17, 2016

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Part 2. Preliminary procedure

back to topSec. 821-a. Preliminary procedure

1. Upon the filing of a petition under this article, the court shall advise the petitioner of the right to retain legal representation or if indigent, the right to have counsel appointed pursuant to section two hundred sixty-two of this act.

2. Upon the filing of a petition under this article, the court may:

(a) issue a summons pursuant to section eight hundred twenty-six of this part or issue a warrant pursuant to section eight hundred twenty-seven of this part;
(b) issue a temporary order of protection in favor of the petitioner and, where appropriate, the petitioner`s children or any other children residing in the petitioner`s household, pursuant to section eight hundred twenty-eight of this part.

3. Where the respondent is brought before the court pursuant to a summons under section eight hundred twenty-six of this part or a warrant issued under section eight hundred twenty-seven of this part, or where a respondent voluntarily appears before the court after such summons or warrant has been issued, the court shall:

(a) advise the parties of the right to retain legal representation or, if indigent, the right to have counsel appointed pursuant to section two hundred sixty-two of this act;
(b) advise the respondent of the allegations contained in the petition before the court; and
(c) provide the respondent with a copy of such petition; and the court may:

(i) order the release of the respondent on his or her own recognizance pending further appearances as required by the court;
(ii) direct that the respondent post bail in a manner authorized pursuant to section one hundred fifty-five-a of this act in an amount set by the court; or
(iii) issue a commitment order directing that the respondent be remanded to the custody of the county sheriff or other appropriate law enforcement official until such time as bail is posted as required by the court.

4. Where the court directs that the respondent post bail or that the respondent be committed to the custody of a law enforcement official as provided for herein, and the respondent fails to post bail or otherwise remains in custody, a hearing shall be held without unreasonable delay but in no event later than one hundred twenty hours after the arrest of the respondent or in the event that a Saturday, Sunday, or legal holiday occurs during such custody, one hundred forty-four hours after the arrest of the respondent, to determine upon material and relevant evidence whether sufficient cause exists to keep the respondent in custody. If the court determines that sufficient cause does not exist or if no hearing is timely held, the respondent shall immediately be released on the respondent`s own recognizance.

5. (a) At such time as the petitioner first appears before the court, the court shall advise the petitioner that the petitioner may: continue with the hearing and disposition of such petition in the family court; or have the allegations contained therein heard in an appropriate criminal court; or proceed concurrently in both family and criminal court.

(b) Where the petitioner seeks to have the petition heard and determined in the family court, the court shall set the matter down for further proceedings pursuant to the provisions of this article. Nothing herein shall be deemed to limit or restrict petitioner`s rights to seek to proceed directly in either criminal or family court, or both, as provided for in section one hundred fifteen of this act and section 100.07 of the criminal procedure law.

6. When both parties first appear before the court, the court shall inquire as to the existence of any other orders of protection involving the parties.
History: (Added L.1994, c. 222, § 15.)