NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A698D
SPONSOR: Paulin (MS) TITLE OF BILL:
An act to amend the criminal procedure law, in relation to certain
domestic violence offenses
PURPOSE OR GENERAL IDEA OF BILL:
To provide that pertinent information regarding misdemeanor crimes of
domestic violence is transmitted to the federal bureau of investigation
for purposes of determining whether a person is disqualified from
purchasing a firearm under federal law based on a conviction for a
misdemeanor crime of domestic violence.
SUMMARY OF SPECIFIC PROVISIONS:
Section one amends criminal procedure law by adding a new section 370.15
to provide that when a defendant has been charged with assault or
attempted assault in the third degree, menacing or attempted menacing in
the second degree, criminal obstruction or attempted criminal
obstruction of breathing or blood circulation, forcible touching or
attempted forcible touching, the people may, at arraignment or no later
than 45 days after arraignment, for the purposes of notifying the divi-
sion of criminal justice services as described in section two below,
serve upon the defendant and file with the court a notice alleging that
the defendant is related or situated to the victim of the crime in the
manner specified in 18 U.S.C. 921(a)(33)(A)(ii). The notice must
include the name of the person alleged to be the victim of the offense
and specify the nature of the alleged relationship as set forth in 18
U.S.C. 921(a)(33)(A)(ii). Upon conviction to such offense, the court
must advise the defendant that he or she is entitled to a hearing on the
allegation contained in the notice and, if necessary, an adjournment of
the sentencing preceding in order to prepare for such hearing, and that
if such allegation is sustained, that determination and conviction will
be reported to the division of criminal justice services. The section
further provides that a defendant may stipulate or admit orally on the
record or in writing that he or she is related or situated to the victim
as described in this section, in which case the relationship shall be
deemed established for the purposes set forth in section two below. If
the defendant denies such relationship to the victim as alleged in the
notice served by the people, the people shall have the burden of proving
beyond a reasonable doubt that the defendant is related or situated to
the victim as alleged in the notice. The court may consider reliable
hearsay evidence submitted by either party. Facts previously proven at
trial or elicited at the time of entry of a plea of guilty shall be
deemed established beyond a reasonable doubt and shall not be reliti-
gated. At the conclusion of the hearing, or upon such a stipulation or
admission, as applicable, the court shall make a specific written deter-
mination with respect to such allegation.
Section two amends criminal procedure law by adding a new section 380.97
to provide that upon judgment of conviction of assault or attempted
assault in the third degree, menacing or attempted menacing in the
second degree, criminal obstruction of breathing or blood circulation,
or attempted criminal obstruction of breathing or blood circulation,
forcible touching or attempted forcible touching, and the defendant has
been determined to be related or situated to the victim of the offense
in the manner specified in 18 U.S.C. 921(a)(33)(A)(ii), the clerk of the
court shall include notification and a copy of the written determination
in any report of such conviction to the division of criminal justice
services to enable the division to report such determination to the
federal bureau of investigation and assist in the bureau to identify
persons prohibited from purchasing and possessing a firearm pursuant to
the provisions of 18 U.S.C. 922.
Section three provides the effective date.
JUSTIFICATION:
It is known that domestic violence abusers use guns to kill women and
children. The recent murders in Poughkeepsie of Jessica Welch and Offi-
cer John Falcone, both shot and killed by Welch's husband, is a stark
reminder of how the deadly combination of domestic violence and guns put
women and children in danger. According to the Bureau of Justice Statis-
tics in the United States, four women are killed by their current or
former husbands or boyfriends each day. A firearm is the most frequently
used weapon in these murders. The National Institute of Justice reports
that having a gun in the home increases the risk that a female survivor
of domestic violence will be murdered by more than six times. Firearms
and threats of murder are often used to intimidate a woman into staying
in a violent relationship.
As was the case for Jessica Welch, a woman's risk of being killed by an
intimate partner increases when she tries to leave. Moreover, according
to a report by the Brady Campaign to Prevent Gun Violence United and the
Million Mom March, abusers who kill their intimate partners often injure
or kill third parties. One study found that in 38% of the homicides
involving intimate partners, the perpetrator kills more than one person.
Other victims include children, mediators, and bystanders.
In New York, there were 130 domestic homicides in 2009. Of these, more
than two-thirds were committed by intimate partners, the rest by other
family members. A firearm was used in approximately 25% of these homi-
cides, second only to knives and other cutting instruments. In 16.9% of
intimate partner homicides, the perpetrator also killed himself. All
murder-suicides were perpetrated by men against women. In the majority
of intimate partner homicides, the incident began with an argument. In a
domestic violence situation where an argument can turn violent, it is
clear how a gun can lead to a greater risk of death.
Under the federal Gun Control Act (GCA), a federal firearms licensee
(FFL) may not sell or otherwise dispose of a firearm to a person who has
been convicted of a misdemeanor crime of domestic violence (MCDV). The
Criminal Justice Information Services Division of the Federal Bureau of
Investigation (FBI) National Instant Criminal Background, Check System
(NICS) determines firearm eligibility by conducting a background check,
which includes a check of automated databases. In cases where addi-
tional information is needed, follow-up requests are made to agencies
such as the police, prosecutors or the courts; the NICS has three busi-
ness days to determine whether a proposed gun transfer is prohibited.
If the NICS has not been able to make a definitive determination within
three business days, the FFL may lawfully transfer the firearm.
An MCDV is defined under the GCA as an offense that: (i) is a misdemea-
nor under federal, state or tribal law; (ii) has as an element the use
or attempted use of physical force, or threatened use of a deadly weap-
on; and (iii) at the time the offense was committed, the defendant was
(A) a current or former spouse, parent, or guardian of the victim; (B) a
person with whom the victim shares a child in common; (C) a person who
is cohabiting with or has cohabitated with the victim as a spouse,
parent, or guardian; or (D) a person who was or is similarly situated to
a spouse, parent, or guardian of the victim.
Currently information identifying an offense as an MCDV is not provided
by the State to the NICS. Although DCJS transmit the charges disposition
of the charges as well as the "rap sheet" of the defendant, information
regarding the victim and the relationship to the defendant is not
included.
DCJS is unable to provide to the NICS the necessary information regard-
ing MCDVs for two reasons.
First, current New York law does not establish an offense of a MCDV as
defined by the GCA. Furthermore, the array of offenses that could
constitute MCDVs under New York law includes all misdemeanor offenses
that contain either the use of physical force, the attempted use of
physical force, or the threatened use of a deadly weapon as an element.
Moreover, certain offenses have disjunctive elements so that a defendant
may be convicted of a misdemeanor offense that could constitute an MCDV
based on an act committed with or without the use of or attempted use of
physical force or the threatened use of a deadly weapon. If, the defend-
ant is convicted, it is not clear from the charge or the disposition of
the charge whether the offense for which the defendant is convicted
involved the use of or attempted use of physical force or the threatened
use of a deadly weapon and therefore constitutes an MCDV under federal
law -- if the offense was committed against a person with whom the
defendant had a relationship to the victim as specified in federal law.
Second, the relationship of the defendant to the victim is not indicated
on the charging or conviction documents.
Accordingly, two critical pieces of information that would enable the
FBI to determine whether a person has been convicted of an MCDV under
federal law and therefore disqualified from purchasing a firearm are not
provided by the State to the FBI.
This bill will provide the mechanism by which the two critical pieces of
information may be transmitted by the State to the FBI. The bill identi-
fies specific misdemeanor offenses that have the requisite element of
the use of or attempted use of physical force or the threatened use of a
deadly weapon and therefore satisfy one of the criteria under federal
law to constitute an MCDV. In the case of those offenses, the bill
provides the people, upon notice to the defendant as provided in the
bill, with the ability to determine at a hearing upon conviction of the
offense the relationship of the defendant to the victim as described and
therefore determine whether the second of the criteria required under
federal law to constitute an MCDV is met. If the relationship as
described is determined as provided in the bill, such relationship will
be noted on the defendant's record, which record is transmitted by DCJS
to the FBI for purposes of NICS.
It should be noted that in order to ensure that NICS has the information
to timely determine the relationship element of what constitutes an MCDV
under federal law, it is necessary that New York law references federal
law regarding the requisite relationship between the defendant and the
victim. Only in this way will the FBI be able to determine whether the
requisite relationship exists without undertaking the additional step of
requesting supplemental information from law enforcement, DCJS or the
courts to ascertain the relationship between the defendant and the
victim. The FBI has confirmed that a person in a same sex relationship
with the victim and a person who cohabits or has cohabited with the
victim as a spouse, regardless of whether such persons are married or
not, would be considered to have the requisite relationship for purposes
of determining whether such person has been convicted of a MCDV under
federal law as such person is similarly situated to a spouse. A person
who is similarly situated to a spouse, similarly situated to a parent,
or similarly situated to a guardian, in each case regardless of gender
of the victim will fall within the requisite relationships identified
under federal law for purposes of NICS.
It may be noted further that the bill requires the people to notify the
defendant early in the process, namely at arraignment or no later than
forty-five days after arraignment, and file with the court a notice
alleging that the defendant is related or situated to the victim in the
manner specified under federal law if the people elect to allege such
relationship. Requiring the filing of such notice at such time, partic-
ularly in advance of a plea, will allow the parties and the court to
resolve in advance issues relating to such allegation.
With the critical information -- the specific misdemeanor offense
involving the requisite element of the use of or attempted use of phys-
ical force or the threatened use of a deadly weapon and the requisite
relationship of the defendant to the victim -- in the NICS database, if
a defendant has been convicted of one of the identified misdemeanor
offenses, the FBI can deny the firearm application without further
research, resulting in greater efficiencies in conducting background
checks and less delay in making determinations as to the eligibility of
an individual seeking to acquire a firearm, better ensuring that an
individual who is prohibited under federal law from acquiring a firearm
does not acquire the firearm. By failing to transmit this critical
information, we run the risk that individuals who are prohibited from
buying a gun nevertheless can because we did not give the FBI the neces-
sary information that requires us to keep the guns out of their hands, a
risk that can be fatal to victims of domestic violence.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect on the one hundred twentieth day after it
shall have become a law and shall apply to crimes committed on or after
such date.
STATE OF NEW YORK
________________________________________________________________________
698--D
2011-2012 Regular Sessions
IN ASSEMBLY(Prefiled)
January 5, 2011
___________
Introduced by M. of A. PAULIN, GALEF, LANCMAN, PEOPLES-STOKES, BOYLAND,
DINOWITZ, GABRYSZAK, HOOPER, HOYT, JAFFEE, KELLNER, MILLMAN, SCHIMEL,
McDONOUGH, P. RIVERA, ROSENTHAL, MOLINARO, ENGLEBRIGHT, LAVINE --
Multi-Sponsored by -- M. of A. BARRON, CAMARA, CROUCH, GLICK, GOTT-
FRIED, MARKEY, TITONE -- read once and referred to the Committee on
Codes -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee -- again reported from said
committee with amendments, ordered reprinted as amended and recommit-
ted to said committee -- again reported from said committee with
amendments, ordered reprinted as amended and recommitted to said
committee -- reported and referred to the Committee on Rules -- Rules
Committee discharged, bill amended, ordered reprinted as amended and
recommitted to the Committee on Rules
AN ACT to amend the criminal procedure law, in relation to certain
domestic violence offenses
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. The criminal procedure law is amended by adding a new
2 section 370.15 to read as follows:
3 § 370.15 Procedure for determining whether certain misdemeanor crimes
4 are crimes of domestic violence for purposes of federal law.
5 1. When a defendant has been charged with assault or attempted assault
6 in the third degree as defined in sections 120.00 and 110.00 of the
7 penal law, menacing or attempted menacing in the second degree as
8 defined in sections 120.14 and 110.00 of the penal law, criminal
9 obstruction of breathing or blood circulation or attempted criminal
10 obstruction of breathing or blood circulation as defined in sections
11 121.11 and 110.00 of the penal law, or forcible touching or attempted
12 forcible touching as defined in sections 130.52 and 110.00 of the penal
13 law, the people may, at arraignment or no later than forty-five days
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02538-12-1
A. 698--D 2
1 after arraignment, for the purpose of notification to the division of
2 criminal justice services pursuant to section 380.97 of this part, serve
3 on the defendant and file with the court a notice alleging that the
4 defendant is related or situated to the victim of the crime in the
5 manner specified in 18 U.S.C. 921(a)(33)(A)(ii).
6 2. Such notice shall include the name of the person alleged to be the
7 victim of such crime and shall specify the nature of the alleged
8 relationship as set forth in 18 U.S.C. 921(a)(33)(A)(ii). Upon
9 conviction of such offense, the court shall advise the defendant that he
10 or she is entitled to a hearing on the allegation contained in the
11 notice and, if necessary, an adjournment of the sentencing proceeding in
12 order to prepare for such hearing, and that if such allegation is
13 sustained, that determination and conviction will be reported to the
14 division of criminal justice services.
15 3. After having been advised by the court as provided in subdivision
16 two of this section, the defendant may stipulate or admit, orally on the
17 record or in writing, that he or she is related or situated to the
18 victim of such crime in the manner described in subdivision one of this
19 section. In such case, such relationship shall be deemed established for
20 purposes of section 380.97 of this part. If the defendant denies that he
21 or she is related or situated to the victim of the crime as alleged in
22 the notice served by the people, or stands mute with respect to such
23 allegation, then the people shall bear the burden to prove beyond a
24 reasonable doubt that the defendant is related or situated to the victim
25 in the manner alleged in the notice. The court may consider reliable
26 hearsay evidence submitted by either party provided that it is relevant
27 to the determination of the allegation. Facts previously proven at trial
28 or elicited at the time of entry of a plea of guilty shall be deemed
29 established beyond a reasonable doubt and shall not be relitigated. At
30 the conclusion of the hearing, or upon such a stipulation or admission,
31 as applicable, the court shall make a specific written determination
32 with respect to such allegation.
33 § 2. The criminal procedure law is amended by adding a new section
34 380.97 to read as follows:
35 § 380.97 Notification to division of criminal justice services of deter-
36 minations in certain misdemeanor cases.
37 Upon judgment of conviction of assault or attempted assault in the
38 third degree, as defined in sections 120.00 and 110.00 of the penal law,
39 menacing or attempted menacing in the second degree, as defined in
40 section 120.14 and 110.00 of the penal law, criminal obstruction of
41 breathing or blood circulation or attempted criminal obstruction of
42 breathing or blood circulation, as defined in sections 121.11 and 110.00
43 of the penal law, forcible touching or attempted forcible touching, as
44 defined in sections 130.52 and 110.00 of the penal law, when the defend-
45 ant has been determined, pursuant to section 370.15 of this part, to be
46 related or situated to the victim of the offense in the manner specified
47 in 18 U.S.C. 921(a)(33)(A)(ii), the clerk of the court shall include
48 notification and a copy of the written determination in a report of such
49 conviction to the division of criminal justice services to enable the
50 division to report such determination to the federal bureau of investi-
51 gation and assist the bureau in identifying persons prohibited from
52 purchasing and possessing a firearm pursuant to the provisions of 18
53 U.S.C. 922.
54 § 3. This act shall take effect on the one hundred twentieth day after
55 it shall have become a law and shall apply to crimes committed on or
56 after such date.
