New York State Assembly

 
•  Summary 
 
•  Actions 
 
•  Floor Votes 
 
•  Memo 
 
•  Text 

A06406 Summary:

A06406 Actions:

A06406 Floor Votes:

A06406 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         6406--A
 
                               2011-2012 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 16, 2011
                                       ___________
 
        Introduced by M. of A. WEINSTEIN, ROSENTHAL, JAFFEE, P. RIVERA, SCHIMEL,
          ENGLEBRIGHT  -- Multi-Sponsored by -- M. of A. CROUCH, PHEFFER -- read
          once and referred to the Committee on Codes --  committee  discharged,
          bill  amended,  ordered  reprinted  as amended and recommitted to said
          committee
 

        AN ACT to amend the family court act, the domestic relations law and the
          criminal procedure law, in relation to  providing  for  the  mandatory
          suspension  or  revocation of the firearms license of a person against
          whom an order of protection or a temporary  order  of  protection  has
          been issued under certain circumstances, or upon violation of any such
          order
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivisions 1, 2 and 3 of  section  842-a  of  the  family
     2  court act, as added by chapter 644 of the laws of 1996, paragraph (a) of
     3  subdivision 1 as amended by chapter 434 of the laws of 2000, the opening
     4  paragraph  of  subdivision  3  as  amended by chapter 597 of the laws of
     5  1998, paragraph (a) of subdivision 3 as amended by chapter  635  of  the

     6  laws of 1999, are amended to read as follows:
     7    1.  [Mandatory  and  permissive  suspension]  Suspension  of  firearms
     8  license and ineligibility for such a license  upon  the  issuance  of  a
     9  temporary order of protection.  Whenever a temporary order of protection
    10  is  issued  pursuant  to  section  eight  hundred  twenty-eight  of this
    11  article, or pursuant to article four, five, six, seven or  ten  of  this
    12  act:
    13    (a) the court shall suspend any such existing license possessed by the
    14  respondent,  order  the  respondent  ineligible  for such a license, and
    15  order the immediate surrender of any or all firearms owned or  possessed
    16  where  the court receives information that gives the court good cause to
    17  believe that: (i) the respondent has a prior conviction of  any  violent

    18  felony  offense  as  defined in section 70.02 of the penal law; (ii) the
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD09906-03-1
        A. 6406--A                          2
 
     1  respondent has previously been found to have willfully failed to obey  a
     2  prior  order  of  protection  and  such willful failure involved (A) the
     3  infliction of [serious] physical injury, as defined in subdivision [ten]
     4  nine of section 10.00 of the penal law, (B) the use or threatened use of
     5  a  deadly  weapon  or dangerous instrument as those terms are defined in
     6  subdivisions twelve and thirteen of section 10.00 of the penal  law,  or

     7  (C)  behavior  constituting  any  violent  felony  offense as defined in
     8  section 70.02 of the penal law; or (iii)  the  respondent  has  a  prior
     9  conviction for stalking in the first degree as defined in section 120.60
    10  of  the  penal  law, stalking in the second degree as defined in section
    11  120.55 of the penal law, stalking in the  third  degree  as  defined  in
    12  section  120.50  of  the  penal  law or stalking in the fourth degree as
    13  defined in section 120.45 of such law; and
    14    (b) the court [may] shall where the court  finds  a  substantial  risk
    15  that  the  respondent  may  use  or threaten to use a firearm unlawfully
    16  against the person or persons for whose protection the  temporary  order
    17  of  protection is issued, suspend any such existing license possessed by
    18  the respondent, order the respondent ineligible for such a license,  and

    19  order the immediate surrender of any or all firearms owned or possessed.
    20    2.  [Mandatory  and permissive revocation] Revocation or suspension of
    21  firearms license and ineligibility for such a license upon the  issuance
    22  of  an  order  of  protection. Whenever an order of protection is issued
    23  pursuant to section eight hundred forty-one of this part, or pursuant to
    24  article four, five, six, seven or ten of this act:
    25    (a) the court shall revoke any such existing license possessed by  the
    26  respondent,  order  the  respondent  ineligible  for such a license, and
    27  order the immediate surrender of any or all firearms owned or  possessed
    28  where the court finds that the conduct which resulted in the issuance of
    29  the  order  of protection involved (i) the infliction of [serious] phys-

    30  ical injury, as defined in subdivision [ten] nine of  section  10.00  of
    31  the  penal  law,  (ii)  the  use or threatened use of a deadly weapon or
    32  dangerous instrument as those terms are defined in  subdivisions  twelve
    33  and  thirteen  of  section  10.00  of  the  penal law, or (iii) behavior
    34  constituting any violent felony offense as defined in section  70.02  of
    35  the penal law; and
    36    (b)  the  court  [may] shall, where the court finds a substantial risk
    37  that the respondent may use or threaten  to  use  a  firearm  unlawfully
    38  against  the  person  or  persons  for  whose  protection  the  order of
    39  protection is issued, (i) revoke any such existing license possessed  by
    40  the  respondent,  order the respondent ineligible for such a license and
    41  order the immediate surrender of any or all firearms owned or  possessed

    42  or  (ii)  suspend  or  continue  to  suspend  any  such existing license
    43  possessed by the respondent, order the respondent ineligible for such  a
    44  license,  and order the immediate surrender of any or all firearms owned
    45  or possessed.
    46    3. [Mandatory and permissive revocation] Revocation or  suspension  of
    47  firearms  license and ineligibility for such a license upon a finding of
    48  a willful failure to obey an order of protection or temporary  order  of
    49  protection.    Whenever a respondent has been found, pursuant to section
    50  eight hundred forty-six-a of this part to have willfully failed to  obey
    51  an  order of protection or temporary order of protection issued pursuant
    52  to this act or the domestic relations law, or by this court or [an order

    53  of protection issued] by a court of competent  jurisdiction  in  another
    54  state,  territorial  or  tribal  jurisdiction,  in addition to any other
    55  remedies available pursuant to section eight hundred forty-six-a of this
    56  part:
        A. 6406--A                          3
 
     1    (a) the court shall revoke any such existing license possessed by  the
     2  respondent,  order  the  respondent  ineligible  for such a license, and
     3  order the immediate surrender of any or all firearms owned or  possessed
     4  where the willful failure to obey such order involves (i) the infliction
     5  of  [serious]  physical  injury, as defined in subdivision [ten] nine of
     6  section 10.00 of the penal law, (ii) the use  or  threatened  use  of  a
     7  deadly  weapon  or  dangerous  instrument  as those terms are defined in

     8  subdivisions twelve and thirteen of section 10.00 of the penal  law,  or
     9  (iii)  behavior  constituting  any  violent felony offense as defined in
    10  section 70.02 of the penal law; or (iv) behavior  constituting  stalking
    11  in  the  first  degree  as  defined  in section 120.60 of the penal law,
    12  stalking in the second degree as defined in section 120.55 of the  penal
    13  law,  stalking  in  the third degree as defined in section 120.50 of the
    14  penal law or stalking in the fourth degree as defined in section  120.45
    15  of such law; and
    16    (b)  the  court  [may]  shall where the court finds a substantial risk
    17  that the respondent may use or threaten  to  use  a  firearm  unlawfully
    18  against  the  person  or  persons  for  whose  protection  the  order of
    19  protection was issued, (i) revoke any such existing license possessed by

    20  the respondent, order the respondent  ineligible  for  such  a  license,
    21  whether  or  not  the respondent possesses such a license, and order the
    22  immediate surrender of any or all firearms owned or  possessed  or  (ii)
    23  suspend any such existing license possessed by the respondent, order the
    24  respondent  ineligible  for  such  a  license,  and  order the immediate
    25  surrender of any or all firearms owned or possessed.
    26    § 2. Section 846-a of the family court act, as amended by chapter  597
    27  of the laws of 1998, is amended to read as follows:
    28    §  846-a.  Powers on failure to obey order. If a respondent is brought
    29  before the court for failure to obey any lawful order issued under  this
    30  article  or  an  order  of  protection  or temporary order of protection
    31  issued pursuant to this act or issued by a court of competent  jurisdic-

    32  tion of another state, territorial or tribal jurisdiction [in a proceed-
    33  ing]  and  if,  after hearing, the court is satisfied by competent proof
    34  that the respondent has willfully failed to obey  any  such  order,  the
    35  court  may  modify an existing order or temporary order of protection to
    36  add  reasonable  conditions  of  behavior  to  the  existing  order  [of
    37  protection],  make  a new order of protection in accordance with section
    38  eight hundred forty-two of this part, may order the forfeiture  of  bail
    39  in  a  manner consistent with article five hundred forty of the criminal
    40  procedure law if bail has been ordered pursuant to this act,  may  order
    41  the  respondent to pay the petitioner's reasonable and necessary counsel
    42  fees in connection with the violation petition  where  the  court  finds

    43  that the violation of its order was willful, and may commit the respond-
    44  ent to jail for a term not to exceed six months.  Such commitment may be
    45  served  upon  certain  specified  days or parts of days as the court may
    46  direct, and the court may, at any time within the term of such sentence,
    47  revoke such suspension and commit the respondent for  the  remainder  of
    48  the original sentence, or suspend the remainder of such sentence. If the
    49  court  determines  that  the willful failure to obey such order involves
    50  violent behavior constituting the crimes of menacing, reckless endanger-
    51  ment, assault or attempted assault and if such a respondent is  licensed
    52  to  carry,  possess,  repair and dispose of firearms pursuant to section
    53  400.00 of the penal law, the court  may  also  immediately  revoke  such
    54  license  and may arrange for the immediate surrender and disposal of any

    55  firearm such respondent owns or possesses.   If the willful  failure  to
    56  obey  such order involves the infliction of [serious] physical injury as
        A. 6406--A                          4
 
     1  defined in subdivision [ten] nine of section 10.00 of the penal  law  or
     2  the use or threatened use of a deadly weapon or dangerous instrument, as
     3  those  terms  are defined in subdivisions twelve and thirteen of section
     4  10.00  of  the  penal  law,  such revocation and immediate surrender and
     5  disposal of any firearm owned or possessed by respondent shall be manda-
     6  tory, pursuant to subdivision eleven of section 400.00 of the penal law.
     7    § 3. The family court act is amended by adding a new section 446-a  to
     8  read as follows:
     9    §  446-a.  Firearms;  surrender and license suspension, revocation and

    10  ineligibility.  Upon the issuance of an order of protection or temporary
    11  order of protection, or upon a violation of such order, the court  shall
    12  make  a  determination  regarding  the  suspension  and  revocation of a
    13  license to carry, possess, repair or dispose of a firearm  or  firearms,
    14  ineligibility  for  such  a  license  and  the  surrender of firearms in
    15  accordance with section eight hundred forty-two-a of this act.
    16    § 4. The family court act is amended by adding a new  section  552  to
    17  read as follows:
    18    §  552.  Firearms;  surrender  and  license suspension, revocation and
    19  ineligibility. Upon the issuance of an order of protection or  temporary
    20  order  of protection, or upon a violation of such order, the court shall

    21  make a determination  regarding  the  suspension  and  revocation  of  a
    22  license  to  carry, possess, repair or dispose of a firearm or firearms,
    23  ineligibility for such a  license  and  the  surrender  of  firearms  in
    24  accordance with section eight hundred forty-two-a of this act.
    25    § 5.  The family court act is amended by adding a new section 656-a to
    26  read as follows:
    27    §  656-a.  Firearms;  surrender and license suspension, revocation and
    28  ineligibility. Upon the issuance of an order of protection or  temporary
    29  order  of protection, or upon a violation of such order, the court shall
    30  make a determination  regarding  the  suspension  and  revocation  of  a
    31  license  to  carry, possess, repair or dispose of a firearm or firearms,

    32  ineligibility for such a  license  and  the  surrender  of  firearms  in
    33  accordance with section eight hundred forty-two-a of this act.
    34    §  6. Part 7 of article 7 of the family court act is amended by adding
    35  a new section 780-a to read as follows:
    36    § 780-a. Firearms; surrender and license  suspension,  revocation  and
    37  ineligibility.  Upon the issuance of an order of protection or temporary
    38  order of protection, or upon a violation of such order, the court  shall
    39  make  a  determination  regarding  the  suspension  and  revocation of a
    40  license to carry, possess, repair or dispose of a firearm  or  firearms,
    41  ineligibility  for  such  a  license  and  the  surrender of firearms in
    42  accordance with section eight hundred forty-two-a of this act.

    43    § 7.  The family court act is amended by adding a new  section  1056-a
    44  to read as follows:
    45    §  1056-a.  Firearms; surrender and license suspension, revocation and
    46  ineligibility. Upon the issuance of an order of protection or  temporary
    47  order  of protection, or upon a violation of such order, the court shall
    48  make an order in accordance with section eight  hundred  forty-two-a  of
    49  this act.
    50    § 8. The first undesignated and closing paragraphs of subdivision 3 of
    51  section  240  of  the domestic relations law, as added by chapter 606 of
    52  the laws of 1999, are amended to read as follows:
    53    g. Any party moving for a temporary order of  protection  pursuant  to
    54  this  subdivision  during hours when the court is open shall be entitled

    55  to file such motion or pleading containing  such  prayer  for  emergency
    56  relief on the same day that such person first appears at such court, and
        A. 6406--A                          5
 
     1  a hearing on the motion or portion of the pleading requesting such emer-
     2  gency  relief  shall  be  held  on the same day or the next day that the
     3  court is in session following the filing of such motion or pleading.
     4    h.  Upon  issuance  of  an  order  of protection or temporary order of
     5  protection or upon a violation of such order, the court [may] shall make
     6  [an order] a determination regarding the suspension and revocation of  a
     7  license  to  carry, possess, repair or dispose of a firearm or firearms,
     8  ineligibility for such a  license  and  the  surrender  of  firearms  in

     9  accordance  with  [section] sections eight hundred forty-two-a and eight
    10  hundred forty-six-a of the family court act [directing the surrender  of
    11  firearms,  revoking  or  suspending  a  party's firearms license, and/or
    12  directing that such party be ineligible to receive a firearms  license],
    13  as  applicable. Upon issuance of an order of protection pursuant to this
    14  section or upon a finding of a violation thereof,  the  court  also  may
    15  direct  payment  of  restitution in an amount not to exceed ten thousand
    16  dollars in accordance with subdivision  (e)  of  section  eight  hundred
    17  forty-one of such act; provided, however, that in no case shall an order
    18  of  restitution  be  issued  where  the  court determines that the party

    19  against whom the order would  be  issued  has  already  compensated  the
    20  injured  party  or  where  such  compensation is incorporated in a final
    21  judgment or settlement of the action.
    22    § 9. Subdivision 9 of section 252 of the domestic  relations  law,  as
    23  added by chapter 606 of the laws of 1999, is amended to read as follows:
    24    9.  Upon  issuance  of  an  order  of protection or temporary order of
    25  protection or upon a violation of such order, the  court  [may  take  an
    26  order]  shall  make a determination regarding the suspension and revoca-
    27  tion of a license to carry, possess, repair or dispose of a  firearm  or
    28  firearms, ineligibility for such a license and the surrender of firearms
    29  in  accordance  with  [section]  sections  eight hundred forty-two-a and

    30  eight hundred forty-six-a of the family court act [directing the surren-
    31  der of firearms, revoking or  suspending  a  party's  firearms  license,
    32  and/or  directing  that  such  party be ineligible to receive a firearms
    33  license], as applicable. Upon issuance of an order of protection  pursu-
    34  ant  to this section or upon a finding of a violation thereof, the court
    35  also may direct payment of restitution in an amount not  to  exceed  ten
    36  thousand  dollars  in  accordance  with subdivision (e) of section eight
    37  hundred forty-one of such act; provided, however, that in no case  shall
    38  an  order  of  restitution be issued where the court determines that the
    39  party against whom the order would be issued has already compensated the
    40  injured party or where such compensation  is  incorporated  in  a  final

    41  [judgement] judgment or settlement of the action.
    42    §  10.  The  opening  paragraph  and paragraph (b) of subdivision 1 of
    43  section 530.14 of the criminal procedure law, as added by chapter 644 of
    44  the laws of 1996, are amended to read as follows:
    45    [Mandatory and permissive suspension] Suspension of  firearms  license
    46  and ineligibility for such a license upon issuance of temporary order of
    47  protection.  Whenever a temporary order of protection is issued pursuant
    48  to  subdivision  one  of  section  530.12  or subdivision one of section
    49  530.13 of this article:
    50    (b) the court [may] shall where the court  finds  a  substantial  risk
    51  that  the  defendant  may  use  or  threaten to use a firearm unlawfully
    52  against the person or persons for whose protection the  temporary  order

    53  of  protection is issued, suspend any such existing license possessed by
    54  the defendant, order the defendant ineligible for  such  a  license  and
    55  order the immediate surrender of any or all firearms owned or possessed.
        A. 6406--A                          6
 
     1    §  11.  The  opening  paragraph  and paragraph (b) of subdivision 2 of
     2  section 530.14 of the criminal procedure law, as added by chapter 644 of
     3  the laws of 1996, are amended to read as follows:
     4    [Mandatory  and  permissive  revocation]  Revocation  or suspension of
     5  firearms license and ineligibility for such a license upon  issuance  of
     6  an order of protection. Whenever an order of protection is issued pursu-
     7  ant to subdivision five of section 530.12 or subdivision four of section
     8  530.13 of this article:

     9    (b)  the  court  [may]  shall where the court finds a substantial risk
    10  that the defendant may use or  threaten  to  use  a  firearm  unlawfully
    11  against  the  person  or  persons  for  whose  protection  the  order of
    12  protection is issued, (i) revoke any such existing license possessed  by
    13  the  defendant,  order  the  defendant ineligible for such a license and
    14  order the immediate surrender of any or all firearms owned or  possessed
    15  or  (ii)  suspend  or  continue  to  suspend  any  such existing license
    16  possessed by the defendant, order the defendant ineligible  for  such  a
    17  license  and  order the immediate surrender of any or all firearms owned
    18  or possessed.
    19    § 12. The opening paragraph and paragraph  (b)  of  subdivision  3  of
    20  section  530.14  of the criminal procedure law, the opening paragraph as

    21  amended by chapter 597 of the laws of 1998 and paragraph (b) as added by
    22  chapter 644 of the laws of 1996, are amended to read as follows:
    23    [Mandatory and permissive  revocation]  Revocation  or  suspension  of
    24  firearms  license and ineligibility for such a license upon a finding of
    25  a willful failure to obey an order of protection. Whenever  a  defendant
    26  has  been  found  pursuant  to  subdivision  eleven of section 530.12 or
    27  subdivision eight of section 530.13 of this article  to  have  willfully
    28  failed  to  obey  an  order of protection issued by a court of competent
    29  jurisdiction in this state  or  another  state,  territorial  or  tribal
    30  jurisdiction,  in  addition  to any other remedies available pursuant to
    31  subdivision eleven of section 530.12 or  subdivision  eight  of  section
    32  530.13 of this article:

    33    (b)  the  court  [may]  shall where the court finds a substantial risk
    34  that the defendant may use or  threaten  to  use  a  firearm  unlawfully
    35  against  the  person  or  persons  for  whose  protection  the  order of
    36  protection was issued, (i) revoke any such existing license possessed by
    37  the defendant, order the defendant ineligible for  such  a  license  and
    38  order  the immediate surrender of any or all firearms owned or possessed
    39  or (ii) suspend any such existing license possessed  by  the  defendant,
    40  order  the defendant ineligible for such a license and order the immedi-
    41  ate surrender of any or all firearms owned or possessed.
    42    § 13. This act shall take effect immediately.