•  Summary 
  •  
  •  Actions 
  •  
  •  Committee Votes 
  •  
  •  Floor Votes 
  •  
  •  Memo 
  •  
  •  Text 
  •  
  •  LFIN 
  •  
  •  Chamber Video/Transcript 

A08976 Summary:

BILL NOA08976B
 
SAME ASSAME AS S07133-A
 
SPONSORSimon
 
COSPNSRMayer, Ortiz, Dickens, Pichardo, Gottfried, Mosley, Galef, Glick, Joyner, Rosenthal L, O'Donnell, Sepulveda, Fahy, Seawright, D'Urso, Englebright, Quart, Carroll, Paulin, Titone, Magnarelli, Hunter, De La Rosa, Taylor, Montesano, Abinanti, Lavine, Rivera, Barron, Vanel, Zebrowski, Niou, Steck, Dinowitz, Simotas, Blake, Jaffee, Rozic, Aubry, Wright, Otis, Weprin, Davila, Bichotte, Errigo, Arroyo, Buchwald, McDonough, Pellegrino, Bronson
 
MLTSPNSREpstein, Thiele
 
Add Art 63-A 6340 - 6347, CPLR; amd 530.14, CP L; amd 265.45, Pen L
 
Establishes extreme risk protection orders as a court-issued order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun and establishes procedures for the application, administration, and expiration or termination of such protection orders.
Go to top

A08976 Floor Votes:

DATE:03/06/2018Assembly Vote  YEA/NAY: 115/20
AbbateYCrouchYGuntherYMayerYPichardoYTaylorY
AbinantiYCurranYHarrisYMcDonaldYPretlowYThieleY
ArroyoERCusickYHawleyNOMcDonoughERQuartYTitoneY
AubryYCymbrowitzYHevesiYMill B YRaYTitusY
BarclayNODavilaYHikindYMill MGYRaiaYVanelY
BarnwellYDe La RosaYHooperYMill MLYRamosYWalkerY
BarrettYDenDekkerYHunterYMontesanoYRichardsonERWallaceY
BarronYDickensYHyndmanYMorelleYRiveraYWalshNO
BenedettoYDilanYJaffeeYMorinelloYRodriguezYWalterY
BichotteYDinowitzYJean-PierreYMosleyYRose D YWeinsteinY
BlakeYDiPietroNOJenneYMurrayYRose L YWeprinY
BlankenbushNOD'UrsoYJohnsYNiouYRozicYWilliamsY
BrabenecNOEnglebrightYJonesYNolanERRyanYWoernerY
BraunsteinYErrigoNOJoynerYNorrisYSantabarbaraYWrightY
BrindisiYFahyYKimYOaksNOSchimmingerNOZebrowskiY
BronsonYFinchYKolbNOO'DonnellYSeawrightYMr SpkrY
BuchwaldYFitzpatrickNOLalorNOOrtizYSepulvedaY
ButlerNOFriendNOLavineYOtisYSimonY
ByrneNOGalefYLawrenceNOPalmesanoNOSimotasY
CahillYGanttERLentolYPalumboYSkartadosER
CarrollYGarbarinoYLiftonYPaulinYSkoufisY
CastorinaYGiglioNOLupardoYPellegrinoYSolagesY
ColtonYGlickYMageeYPeoples-StokesYStecNO
CookYGoodellNOMagnarelliYPerryYSteckY
CrespoYGottfriedYMalliotakisYPheffer AmatoYStirpeY

Go to top

A08976 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8976--B
 
                   IN ASSEMBLY
 
                                     January 9, 2018
                                       ___________
 
        Introduced  by M. of A. SIMON -- 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
 
        AN ACT to amend the civil practice law and rules, the criminal procedure
          law  and  the  penal  law,  in  relation  to establishing extreme risk
          protection orders as court-issued orders of protection  prohibiting  a
          person  from  purchasing,  possessing  or  attempting  to  purchase or
          possess a firearm, rifle or shotgun
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. The civil practice law and rules is amended by adding a new
     2  article 63-A to read as follows:
     3                                ARTICLE 63-A
     4                       EXTREME RISK PROTECTION ORDERS
     5  Section 6340. Definitions.
     6          6341. Application for an extreme risk protection order.
     7          6342. Issuance of a temporary extreme risk protection order.
     8          6343. Issuance of a final extreme risk protection order.
     9          6344. Surrender  and  removal  of  firearms, rifles and shotguns
    10                 pursuant to an extreme risk protection order.
    11          6345. Request for renewal of an extreme risk protection order.
    12          6346. Expiration of an extreme risk protection order.
    13          6347. Effect  of  findings  and  determinations  in   subsequent
    14                 proceedings.
    15    § 6340. Definitions. For the purposes of this article:
    16    1.  "Extreme  risk  protection  order"  means  a court-issued order of
    17  protection prohibiting a person from purchasing, possessing or  attempt-
    18  ing to purchase or possess a firearm, rifle or shotgun.
    19    2.  "Petitioner"  means:  (a)  a police officer, as defined in section
    20  1.20 of the criminal procedure law, or district attorney with  jurisdic-
    21  tion  in  the  county or city where the person against whom the order is
    22  sought resides; or (b) a family  or  household  member,  as  defined  in
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10726-05-8

        A. 8976--B                          2
 
     1  subdivision  two  of  section  four  hundred  fifty-nine-a of the social
     2  services law, of the person against whom the order is sought.
     3    3.  "Respondent"  means  the  person  against  whom  an  extreme  risk
     4  protection order is or may be sought under this article.
     5    4. "Possess" shall have the same meaning  as  defined  in  subdivision
     6  eight of section 10.00 of the penal law.
     7    §  6341.  Application for an extreme risk protection order. In accord-
     8  ance with this article, a petitioner may file a sworn  application,  and
     9  accompanying  supporting  documentation,  setting  forth  the  facts and
    10  circumstances justifying the issuance  of  an  extreme  risk  protection
    11  order.  Such  application and supporting documentation shall be filed in
    12  the supreme court in the county in which  the  respondent  resides.  The
    13  chief administrator of the courts shall adopt forms that may be used for
    14  purposes  of  such  applications  and  the court's consideration of such
    15  applications. Such application form shall include inquiry as to  whether
    16  the  petitioner  knows,  or  has  reason to believe, that the respondent
    17  owns, possesses or has access to a firearm, rifle or shotgun and if  so,
    18  a request that the petitioner list or describe such firearms, rifles and
    19  shotguns, and the respective locations thereof, with as much specificity
    20  as possible.
    21    §  6342.  Issuance  of  a  temporary extreme risk protection order. 1.
    22  Upon application of a petitioner pursuant to this article, the court may
    23  issue a temporary extreme risk protection order, ex parte or  otherwise,
    24  to  prohibit the respondent from purchasing, possessing or attempting to
    25  purchase or possess a firearm, rifle or shotgun,  upon  a  finding  that
    26  there is probable cause to believe the respondent is likely to engage in
    27  conduct that would result in serious harm to himself, herself or others,
    28  as defined in paragraph one or two of subdivision (a) of section 9.39 of
    29  the  mental hygiene law. Such application for a temporary order shall be
    30  determined in writing on the same day the application is filed.
    31    2. In  determining  whether  grounds  for  a  temporary  extreme  risk
    32  protection  order  exist,  the court shall consider any relevant factors
    33  including, but not limited to, the following acts of the respondent:
    34    (a) a threat or act of violence or  use  of  physical  force  directed
    35  toward self, the petitioner, or another person;
    36    (b) a violation or alleged violation of an order of protection;
    37    (c)  any pending charge or conviction for an offense involving the use
    38  of a weapon;
    39    (d) the reckless use, display or brandishing of a  firearm,  rifle  or
    40  shotgun;
    41    (e) any history of a violation of an extreme risk protection order;
    42    (f)  evidence  of  recent or ongoing abuse of controlled substances or
    43  alcohol; or
    44    (g) evidence of recent acquisition of a  firearm,  rifle,  shotgun  or
    45  other deadly weapon or dangerous instrument, or any ammunition therefor.
    46    In  considering  the  factors  under this subdivision, the court shall
    47  consider the time that has elapsed since the occurrence of such  act  or
    48  acts and the age of the person at the time of the occurrence of such act
    49  or acts.
    50    For  the  purposes  of this subdivision, "recent" means within the six
    51  months prior to the date the petition was filed.
    52    3. The application of the petitioner and supporting documentation,  if
    53  any,  shall  set  forth  the  factual basis for the request and probable
    54  cause for issuance of a temporary order. The court may conduct an  exam-
    55  ination  under oath of the petitioner and any witness the petitioner may
    56  produce.

        A. 8976--B                          3
 
     1    4. A temporary extreme risk  protection  order,  if  warranted,  shall
     2  issue in writing, and shall include:
     3    (a) a statement of the grounds found for the issuance of the order;
     4    (b) the date and time the order expires;
     5    (c) the address of the court that issued the order;
     6    (d)  a  statement to the respondent: (i) directing that the respondent
     7  may not purchase, possess or attempt to purchase or possess  a  firearm,
     8  rifle  or  shotgun  while  the  order is in effect and that any firearm,
     9  rifle or shotgun possessed by such respondent shall be promptly  surren-
    10  dered  to  any authorized law enforcement official in the same manner as
    11  set forth in subdivision five of section 530.14 of the  criminal  proce-
    12  dure law;
    13    (ii)  informing  the  respondent that the court will hold a hearing no
    14  sooner than three nor more than six business days after service  of  the
    15  temporary  order,  to  determine whether a final extreme risk protection
    16  order will be issued and the date, time and location  of  such  hearing,
    17  provided  that  the  respondent  shall be entitled to more than six days
    18  upon request in order to prepare for the hearing;  and  (iii)  informing
    19  the respondent the he or she may seek the advice of an attorney and that
    20  an attorney should be consulted promptly; and
    21    (e)  a form to be completed and executed by the respondent at the time
    22  of service of the temporary extreme risk protection order which  elicits
    23  a  list of all firearms, rifles and shotguns possessed by the respondent
    24  and the particular location of each firearm, rifle or shotgun listed.
    25    5. If the application for a temporary extreme risk protection order is
    26  not granted, the court shall  notify  the  petitioner  and,  unless  the
    27  application  is  voluntarily  withdrawn  by  the petitioner, nonetheless
    28  schedule  a  hearing  on  the  application  for  a  final  extreme  risk
    29  protection  order.  Such hearing shall be scheduled to be held promptly,
    30  but in any event no later than ten business days after the date on which
    31  such application is served on the respondent,  provided,  however,  that
    32  the  respondent may request, and the court may grant, additional time to
    33  allow the respondent to prepare for the hearing. A notice of such  hear-
    34  ing  shall  be prepared by the court and shall include the date and time
    35  of the hearing, the address of the court, and the subject of  the  hear-
    36  ing.
    37    6.  (a)  The  court shall, in the manner specified in paragraph (b) of
    38  this subdivision, arrange for prompt service of a copy of the  temporary
    39  extreme  risk protection order, if any, the application therefor and, if
    40  separately applied for or if a temporary extreme risk  protection  order
    41  was  not  granted, the application for an extreme risk protection order,
    42  any notice of hearing prepared by the court, along with  any  associated
    43  papers   including   the  petition  and  any  supporting  documentation,
    44  provided, that the court may redact the address and contact  information
    45  of the petitioner from such application and papers where the court finds
    46  that  disclosure of such address or other contact information would pose
    47  an unreasonable risk to the health or safety of the petitioner.
    48    (b) The court shall provide copies of such documents to the  appropri-
    49  ate  law enforcement agency serving the jurisdiction of the respondent's
    50  residence with a direction that such documents be promptly served, at no
    51  cost to the petitioner, on the respondent; provided, however,  that  the
    52  petitioner  may  voluntarily arrange for service of copies of such order
    53  and associated papers through a third party, such as a licensed  process
    54  server.
    55    7.  (a) The court shall notify the division of state police, any other
    56  law enforcement agency with jurisdiction, all applicable licensing offi-

        A. 8976--B                          4
 
     1  cers, and the division of criminal justice services of the issuance of a
     2  temporary extreme risk protection order and provide a copy of such order
     3  no later than the next business day after  issuing  the  order  to  such
     4  persons  or  agencies. The court also shall promptly notify such persons
     5  and agencies and provide a copy of any order amending or  revoking  such
     6  protection order or restoring the respondent's ability to own or possess
     7  firearms,  rifles  or shotguns no later than the next business day after
     8  issuing the order to restore such right to the respondent. Any notice or
     9  report submitted pursuant to this subdivision shall be in an  electronic
    10  format,  in  a  manner  prescribed  by  the division of criminal justice
    11  services.
    12    (b) Upon receiving notice of the issuance of a temporary extreme  risk
    13  protection  order, the division of criminal justice services shall imme-
    14  diately report the existence of such order  to  the  federal  bureau  of
    15  investigation  to  allow  the bureau to identify persons prohibited from
    16  purchasing firearms, rifles or shotguns. The division shall  also  imme-
    17  diately  report  to  the  bureau  the  expiration of any such protection
    18  order, any court order amending or revoking  such  protection  order  or
    19  restoring the respondent's ability to purchase a firearm, rifle or shot-
    20  gun.
    21    8.  A  law  enforcement  officer  serving  a  temporary  extreme  risk
    22  protection order shall request that the respondent immediately surrender
    23  to the officer all firearms, rifles and  shotguns  in  the  respondent's
    24  possession and the officer shall conduct any search permitted by law for
    25  such  firearms. The law enforcement officer shall take possession of all
    26  firearms, rifles and shotguns that are surrendered, that  are  in  plain
    27  sight,  or  that are discovered pursuant to a lawful search.  As part of
    28  the order, the court may also direct a  police  officer  to  search  for
    29  firearms, rifles and shotguns in the respondent's possession in a manner
    30  consistent  with  the  procedures  of  article six hundred ninety of the
    31  criminal procedure law.
    32    9. Upon issuance of a temporary extreme risk protection order, or upon
    33  setting a hearing for a final extreme  risk  protection  order  where  a
    34  temporary  order  is denied or not requested, the court shall direct the
    35  law enforcement agency  having  jurisdiction  to  conduct  a  background
    36  investigation  and  report  to the court and, subject to any appropriate
    37  redactions to protect any  person,  each  party  regarding  whether  the
    38  respondent:
    39    (a)  has any prior criminal conviction for an offense involving domes-
    40  tic violence, use of a weapon, or other violence;
    41    (b) has any criminal charge or violation currently pending against him
    42  or her;
    43    (c) is currently on parole or probation;
    44    (d) possesses any registered firearms, rifles or shotguns; and
    45    (e) has been, or is,  subject  to  any  order  of  protection  or  has
    46  violated or allegedly violated any order of protection.
    47    §  6343.  Issuance  of  a  final  extreme risk protection order. 1. In
    48  accordance with this article, no sooner than  three  business  days  nor
    49  later  than  six business days after service of a temporary extreme risk
    50  protection order and, alternatively, no later  than  ten  business  days
    51  after  service  of  an application under this article where no temporary
    52  extreme risk protection order has been issued, the supreme  court  shall
    53  hold  a  hearing  to  determine  whether  to  issue a final extreme risk
    54  protection order and, when applicable, whether a firearm, rifle or shot-
    55  gun surrendered by, or removed from, the respondent should  be  returned
    56  to  the  respondent.  The  respondent shall be entitled to more than six

        A. 8976--B                          5
 
     1  business days if a temporary extreme  risk  protection  order  has  been
     2  issued  and  the  respondent  requests a reasonable period of additional
     3  time to prepare for the hearing.  Where  no  temporary  order  has  been
     4  issued,  the respondent may request, and the court may grant, additional
     5  time beyond the ten days to allow the  respondent  to  prepare  for  the
     6  hearing.
     7    2.  At  the  hearing  pursuant to subdivision one of this section, the
     8  petitioner shall have the burden of proving,  by  clear  and  convincing
     9  evidence,  that the respondent is likely to engage in conduct that would
    10  result in serious harm to himself, herself  or  others,  as  defined  in
    11  paragraph  one  or  two of subdivision (a) of section 9.39 of the mental
    12  hygiene law. The court  may  consider  the  petition  and  any  evidence
    13  submitted  by  the petitioner, any evidence submitted by the respondent,
    14  any testimony presented, and the report of the relevant law  enforcement
    15  agency  submitted  pursuant  to  subdivision nine of section sixty-three
    16  hundred forty-two of this article. The court  shall  also  consider  the
    17  factors  set  forth  in  subdivision  two of section sixty-three hundred
    18  forty-two of this article.
    19    3. (a) After the hearing pursuant to subdivision one of this  section,
    20  the  court  shall  issue a written order granting or denying the extreme
    21  risk protection order and setting forth the reasons  for  such  determi-
    22  nation. If the extreme risk protection order is granted, the court shall
    23  direct  service  of  such order in the manner and in accordance with the
    24  protections for the petitioner set forth in subdivision six  of  section
    25  sixty-three hundred forty-two of this article.
    26    (b)  Upon  issuance  of  an  extreme  risk  protection  order: (i) any
    27  firearm, rifle or shotgun removed pursuant to a temporary  extreme  risk
    28  protection order or such extreme risk protection order shall be retained
    29  by  the  law  enforcement agency having jurisdiction for the duration of
    30  the order, unless ownership of the firearm, rifle or shotgun is  legally
    31  transferred  by the respondent to another individual permitted by law to
    32  own and possess such firearm, rifle or shotgun; (ii) the  supreme  court
    33  shall  temporarily suspend any existing firearm license possessed by the
    34  respondent and order the respondent temporarily ineligible  for  such  a
    35  license;  (iii)  the  respondent  shall be prohibited from purchasing or
    36  possessing, or attempting to purchase or possess, a  firearm,  rifle  or
    37  shotgun; and (iv) the court shall direct the respondent to surrender any
    38  firearm, rifle or shotgun in his or her possession in the same manner as
    39  set  forth  in subdivision five of section 530.14 of the criminal proce-
    40  dure law.
    41    (c) An extreme risk protection order issued in  accordance  with  this
    42  section  shall  extend, as specified by the court, for a period of up to
    43  one year from the date of the issuance of such order; provided, however,
    44  that if such order was immediately preceded by the issuance of a  tempo-
    45  rary  extreme  risk  protection  order, then the duration of the extreme
    46  risk protection order shall be measured from the  date  of  issuance  of
    47  such temporary extreme risk protection order.
    48    (d)  A law enforcement officer serving a final extreme risk protection
    49  order shall request that the respondent  immediately  surrender  to  the
    50  officer all firearms, rifles and shotguns in the respondent's possession
    51  and  the  officer  shall  conduct  any  search permitted by law for such
    52  firearms. The law enforcement  officer  shall  take  possession  of  all
    53  firearms,  rifles  and  shotguns that are surrendered, that are in plain
    54  sight, or that are discovered pursuant to a lawful search.   As part  of
    55  the  order,  the  court  may  also direct a police officer to search for
    56  firearms, rifles and shotguns in a  respondent's  possession  consistent

        A. 8976--B                          6
 
     1  with the procedures of article six hundred ninety of the criminal proce-
     2  dure law.
     3    4.  (a) The court shall notify the division of state police, any other
     4  law enforcement agency with jurisdiction, all applicable licensing offi-
     5  cers, and the division of criminal justice services of the issuance of a
     6  final extreme risk protection order and provide a copy of such order  to
     7  such  persons  and  agencies  no  later than the next business day after
     8  issuing the order. The court also shall promptly notify such persons and
     9  agencies and provide a copy of  any  order  amending  or  revoking  such
    10  protection order or restoring the respondent's ability to own or possess
    11  firearms,  rifles  or shotguns no later than the next business day after
    12  issuing the order to restore such right to the respondent. Any notice or
    13  report submitted pursuant to this subdivision shall be in an  electronic
    14  format,  in  a  manner  prescribed  by  the division of criminal justice
    15  services.
    16    (b) Upon receiving notice of the issuance  of  a  final  extreme  risk
    17  protection  order, the division of criminal justice services shall imme-
    18  diately report the existence of such order  to  the  federal  bureau  of
    19  investigation  to  allow  the bureau to identify persons prohibited from
    20  purchasing firearms, rifles or shotguns. The division shall  also  imme-
    21  diately report to the bureau the expiration of such protection order and
    22  any  court order amending or revoking such protection order or restoring
    23  the respondent's ability to purchase a firearm, rifle or shotgun.
    24    5. (a) If, in accordance with  a  temporary  extreme  risk  protection
    25  order,  a  firearm,  rifle or shotgun has been surrendered by or removed
    26  from the respondent, and the supreme court subsequently finds  that  the
    27  petitioner has not met the required standard of proof, the court's find-
    28  ing shall include a written order, issued to all parties, directing that
    29  any  firearm,  rifle  or shotgun surrendered or removed pursuant to such
    30  temporary order shall be returned to  the  respondent,  upon  a  written
    31  finding that there is no legal impediment to the respondent's possession
    32  of such firearm, rifle or shotgun.
    33    (b)  If  any  other  person  demonstrates that he or she is the lawful
    34  owner of any firearm, rifle or shotgun surrendered or  removed  pursuant
    35  to  a  protection  order  issued  in  accordance  with this article, and
    36  provided that the court has made a written  finding  that  there  is  no
    37  legal  impediment to the person's possession of a surrendered or removed
    38  firearm, rifle or shotgun, the court shall  direct  that  such  firearm,
    39  rifle or shotgun be returned to such lawful owner and inform such person
    40  of  the  obligation  to  safely store such firearm, rifle, or shotgun in
    41  accordance with section 265.45 of the penal law.
    42    6. The respondent shall be notified on the record and  in  writing  by
    43  the  court  that  he  or she may submit one written request, at any time
    44  during the effective period of an extreme risk protection order,  for  a
    45  hearing  setting  aside  any portion of such order. The request shall be
    46  submitted in substantially the same form and manner as prescribed by the
    47  chief administrator of the courts. Upon such request,  the  court  shall
    48  promptly  hold a hearing, in accordance with this article, after provid-
    49  ing reasonable notice to the petitioner.  The respondent shall bear  the
    50  burden to prove, by clear and convincing evidence, any change of circum-
    51  stances that may justify a change to the order.
    52    §  6344. Surrender and removal of firearms, rifles and shotguns pursu-
    53  ant to an extreme risk protection order. 1. When a law enforcement offi-
    54  cer takes any firearm, rifle or shotgun pursuant to a temporary  extreme
    55  risk  protection  order  or  a  final extreme risk protection order, the
    56  officer shall give to the person from whom such firearm, rifle or  shot-

        A. 8976--B                          7
 
     1  gun is taken a receipt or voucher for the property taken, describing the
     2  property  in detail. In the absence of a person, the officer shall leave
     3  the receipt or voucher in the place where the property was found, mail a
     4  copy  of the receipt or voucher, retaining proof of mailing, to the last
     5  known address of the respondent and, if  different,  the  owner  of  the
     6  firearm,  rifle  or  shotgun, and file a copy of such receipt or voucher
     7  with the court. All firearms, rifles and shotguns in the possession of a
     8  law enforcement official pursuant to this article shall  be  subject  to
     9  the  provisions of applicable law, including but not limited to subdivi-
    10  sion six of section 400.05 of the penal law; provided, however, that any
    11  such firearm, rifle or shotgun shall be retained and not disposed of  by
    12  the  law enforcement agency for at least two years unless legally trans-
    13  ferred by the respondent to an individual permitted by law  to  own  and
    14  possess such firearm, rifle or shotgun.
    15    2.  If the location to be searched during the execution of a temporary
    16  extreme risk protection order or extreme risk protection order is joint-
    17  ly occupied by two or more parties, and  a  firearm,  rifle  or  shotgun
    18  located  during  the  execution of such order is owned by a person other
    19  than the respondent, the court shall, upon a written finding that  there
    20  is  no  legal impediment to the respondent's possession of such firearm,
    21  rifle or shotgun, order the return of such firearm, rifle or shotgun  to
    22  such  lawful  owner and inform such person of their obligation to safely
    23  store their firearm, rifle, or shotgun in accordance with section 265.45
    24  of the penal law.
    25    § 6345. Request for renewal of an extreme risk  protection  order.  1.
    26  If  a petitioner believes a person subject to an extreme risk protection
    27  order continues to be likely to engage in conduct that would  result  in
    28  serious harm to himself, herself, or others, as defined in paragraph one
    29  or  two  of  subdivision  (a) of section 9.39 of the mental hygiene law,
    30  such petitioner may, at any time within sixty days prior to the  expira-
    31  tion  of such existing extreme risk protection order, initiate a request
    32  for a renewal of such order, setting forth the facts  and  circumstances
    33  necessitating  the  request. The chief administrator of the courts shall
    34  adopt forms that may be used for purposes of such applications  and  the
    35  court's consideration of such applications. The court may issue a tempo-
    36  rary  extreme  risk  protection  order in accordance with section sixty-
    37  three hundred forty-two of  this  article,  during  the  period  that  a
    38  request for renewal of an extreme risk protection order is under consid-
    39  eration pursuant to this section.
    40    2.  A  hearing held pursuant to this section shall be conducted in the
    41  supreme court, in accordance with  section  sixty-three  hundred  forty-
    42  three  of  this  article,  to  determine if a request for renewal of the
    43  order shall be granted. The respondent  shall  be  served  with  written
    44  notice  of an application for renewal a reasonable time before the hear-
    45  ing, and shall be afforded an opportunity to fully  participate  in  the
    46  hearing.  The  court  shall  direct  service of such application and the
    47  accompanying papers in the manner and in accordance with the protections
    48  for the petitioner set forth in subdivision six of  section  sixty-three
    49  hundred forty-two of this article.
    50    §  6346.  Expiration  of  an  extreme  risk  protection  order.  1.  A
    51  protection order issued pursuant to this article, and all records of any
    52  proceedings conducted pursuant to this article,  shall  be  sealed  upon
    53  expiration  of  such  order  and  the  clerk  of  the court wherein such
    54  proceedings were conducted shall immediately notify the commissioner  of
    55  the  division of criminal justice services, the heads of all appropriate
    56  police departments, applicable licensing officers, and all other  appro-

        A. 8976--B                          8
 
     1  priate  law enforcement agencies that the order has expired and that the
     2  record of such protection order shall be sealed and not be  made  avail-
     3  able to any person or public or private entity, except that such records
     4  shall be made available to:
     5    (a) the respondent or the respondent's designated agent;
     6    (b) courts in the unified court system;
     7    (c)  police  forces and departments having responsibility for enforce-
     8  ment of the general criminal laws of the state;
     9    (d) any state or local officer or agency with responsibility  for  the
    10  issuance  of  licenses  to possess a firearm, rifle or shotgun, when the
    11  respondent has made application for such a license; and
    12    (e) any prospective employer of a police officer or peace  officer  as
    13  those  terms are defined in subdivisions thirty-three and thirty-four of
    14  section 1.20 of the criminal procedure law, in relation to  an  applica-
    15  tion  for  employment  as  a  police officer or peace officer; provided,
    16  however, that every person who is  an  applicant  for  the  position  of
    17  police  officer  or  peace officer shall be furnished with a copy of all
    18  records obtained under this subparagraph and afforded an opportunity  to
    19  make an explanation thereto.
    20    2. Upon expiration of a protection order issued pursuant to this arti-
    21  cle and upon written application of the respondent who is the subject of
    22  such  order,  with  notice and opportunity to be heard to the petitioner
    23  and every licensing  officer  responsible  for  issuance  of  a  firearm
    24  license  to the subject of the order pursuant to article four hundred of
    25  the penal law, and upon a written finding that there is no legal  imped-
    26  iment  to the respondent's possession of a surrendered firearm, rifle or
    27  shotgun, the court shall order the return of a firearm, rifle or shotgun
    28  not otherwise disposed of in accordance with subdivision one of  section
    29  sixty-three  hundred forty-four of this article. When issuing such order
    30  in connection with any firearm subject to a  license  requirement  under
    31  article  four hundred of the penal law, if the licensing officer informs
    32  the court that he or she will seek to  revoke  the  license,  the  order
    33  shall be stayed by the court until the conclusion of any license revoca-
    34  tion proceeding.
    35    §   6347.   Effect   of  findings  and  determinations  in  subsequent
    36  proceedings.  Notwithstanding any contrary claim based on common law  or
    37  a  provision of any other law, no finding or determination made pursuant
    38  to this article shall be interpreted as binding,  or  having  collateral
    39  estoppel  or  similar effect, in any other action or proceeding, or with
    40  respect to any other determination or finding, in any  court,  forum  or
    41  administrative proceeding.
    42    §  2. Paragraph (b) of subdivision 5 of section 530.14 of the criminal
    43  procedure law, as added by chapter 644 of the laws of 1996,  is  amended
    44  to read as follows:
    45    (b)  The  prompt surrender of one or more firearms pursuant to a court
    46  order issued pursuant to this section shall be  considered  a  voluntary
    47  surrender  for purposes of subparagraph (f) of paragraph one of subdivi-
    48  sion a of section 265.20 of the penal law. The disposition of  any  such
    49  firearms  shall  be in accordance with the provisions of subdivision six
    50  of section 400.05 of the penal law; provided, however, that upon  termi-
    51  nation  of  any  suspension  order  issued  pursuant  to this section or
    52  section eight hundred forty-two-a of the family court act, upon  written
    53  application  of the subject of the order, with notice and opportunity to
    54  be heard to the district attorney, the county  attorney,  the  protected
    55  party,  and  every  licensing  officer  responsible  for  issuance  of a
    56  firearms license to the subject of the order pursuant  to  article  four

        A. 8976--B                          9

     1  hundred  of  the  penal law, and upon a written finding that there is no
     2  legal impediment to the subject's possession of a  surrendered  firearm,
     3  rifle  or  shotgun, any court of record exercising criminal jurisdiction
     4  may  order  the  return  of  a  firearm,  rifle or shotgun not otherwise
     5  disposed of in accordance with subdivision six of section 400.05 of  the
     6  penal  law.    When  issuing  such  order in connection with any firearm
     7  subject to a license requirement under article four hundred of the penal
     8  law, if the licensing officer informs the court that he or she will seek
     9  to revoke the license, the order shall be stayed by the court until  the
    10  conclusion of any license revocation proceeding.
    11    §  3. Section 265.45 of the penal law, as amended by section 3 of part
    12  FF of chapter 57 of the laws of 2013, is amended to read as follows:
    13  § 265.45 Safe storage of rifles, shotguns, and firearms.
    14    No person who owns or is custodian of a rifle, shotgun or firearm  who
    15  resides  with  an individual who such person knows or has reason to know
    16  is prohibited from possessing a firearm pursuant to 18 U.S.C.  §  922(g)
    17  (1),  (4),  (8) or (9), or pursuant to a temporary or final extreme risk
    18  protection order issued under article sixty-three-A of the  civil  prac-
    19  tice  law  and rules, shall store or otherwise leave such rifle, shotgun
    20  or firearm out of his or her immediate  possession  or  control  without
    21  having first securely locked such rifle, shotgun or firearm in an appro-
    22  priate  safe  storage depository or rendered it incapable of being fired
    23  by use of a gun locking device appropriate to that weapon. For  purposes
    24  of  this  section  "safe  storage depository" shall mean a safe or other
    25  secure container which, when locked, is incapable of being opened  with-
    26  out  the key, combination or other unlocking mechanism and is capable of
    27  preventing  an  unauthorized  person  from  obtaining  access   to   and
    28  possession of the weapon contained therein. With respect to a person who
    29  is  prohibited from possessing a firearm pursuant to 18 USC § 922(g)(9),
    30  for purposes of this section, this section applies only if  such  person
    31  has  been  convicted  of  a crime included in subdivision one of section
    32  370.15 of the criminal procedure law and such gun  is  possessed  within
    33  five  years  from  the  later of the date of conviction or completion of
    34  sentence. Nothing in this section shall be deemed to affect,  impair  or
    35  supersede  any  special  or  local  act  relating to the safe storage of
    36  rifles, shotguns or firearms which impose additional requirements on the
    37  owner or custodian of such weapons.
    38    A violation of this section shall constitute a class A misdemeanor.
    39    § 4. This act shall take effect on the two hundred tenth day after  it
    40  shall have become a law.
Go to top