S63-2013 Actions

• Mar 4, 2013: RECOMMIT, ENACTING CLAUSE STRICKEN
• Jan 9, 2013: REFERRED TO CODES

S63-2013 Memo

BILL NUMBER:S63

TITLE OF BILL:
An act
to amend the penal law, the criminal procedure law,
and the mental hygiene law,
in relation to
authorizing court to revoke
the firearms license and seize weapons of certain individuals

PURPOSE:
The bill seeks to keep guns out of the hands of individuals that
should not possess them.

SUMMARY OF PROVISIONS:
Section 1. Amends the penal law to clarify that a person surrendering
or otherwise voluntarily delivering a weapon pursuant to law will not
be subject to prosecution for illegal possession of a weapon.

Section 2. Amends the penal law to provide that any weapon surrendered
as required by a court or otherwise voluntarily delivered shall be
redelivered within a year to a lawful licensee or be destroyed.

Section 3. Amends the criminal procedure law to provide that a court
shall, upon entry of a verdict or acceptance of a plea that a
defendant is not responsible by reason of mental disease or defect,
revoke the defendant's firearm license, if any, inquire about the
existence and location of a firearm, rifle or shotgun and order the
surrender of such firearm, rifle or shotgun.

Section 4. Amends the criminal procedure law to provide that a court
shall, upon a finding that a defendant is an incapacitated person,
revoke the defendant's firearm license, if any, inquire about the
existence and location of a firearm, rifle or shotgun and order the
surrender of such firearm, rifle or shotgun.

Section 5. Amends the mental hygiene law to provide that a court
shall, upon issuing an order that a person is in need of involuntary
care and treatment, revoke that person's firearm license, if any,
inquire about the existence and location of a firearm, rifle or
shotgun and order the surrender of such firearm, rifle or shotgun.

Section 6. Amends the mental hygiene law to provide that a court
shall, upon issuing an order that a person is in need of assisted
outpatient treatment, revoke that person's firearm license, if any,
inquire about the existence and location of a firearm, rifle or
shotgun and order the surrender of such firearm, rifle or shotgun.

Section 7. Amends the mental hygiene law to provide that a court
shall, upon issuing an order that a person is in need of involuntary
care and treatment, revoke that person's firearm license, if any,
inquire about the existence and location of a firearm, rifle or
shotgun and order the surrender of such firearm, rifle or shotgun.

Section 8. Amends the mental hygiene law to provide that the effect of
a court order authorizing the involuntary care and treatment of a


person shall render such person ineligible for a firearm license
under state law and ineligible to purchase a firearm, defined as a
pistol, revolver, rifle or shotgun, under federal law.

Section 9. Severability clause.

Section 10. Effective date.

JUSTIFICATION:
The law currently does not expressly empower courts to remove firearms
and revoke firearm licenses of individuals who have been adjudicated
as incapacitated or ordered to treatment or commitment to a mental
facility. The bill would provide that anyone subject to such orders
shall have an existing firearm license revoked and be ordered to
surrender all firearms, rifles or shotguns in his or her possession.
This would enable courts to further protect the public by giving them
the express authority they need to take weapons out of the hands of
individuals who, as a matter of law, have no right to possess them.

LEGISLATIVE HISTORY:
2011-12: S.670
2010:    S.5466 (Schneiderman)

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after it shall have
become a law, with provisions.

S63-2013 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                     63

                         2013-2014 Regular Sessions

                              I N  SENATE

                                 (PREFILED)

                               January 9, 2013
                                 ___________

  Introduced  by  Sen. PERALTA -- read twice and ordered printed, and when
    printed to be committed to the Committee on Codes

  AN ACT to amend the penal law,  the  criminal  procedure  law,  and  the
    mental  hygiene  law,  in  relation to authorizing court to revoke the
    firearms license and seize weapons of certain individuals

    THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section  1.    Subparagraph  (f)  of  paragraph  1 of subdivision a of
  section 265.20 of the penal law, as amended by chapter 578 of  the  laws
  of 2006, is amended to read as follows:

    (f)  A  person  [voluntarily]  surrendering  OR  OTHERWISE VOLUNTARILY
  DELIVERING such weapon, instrument,  appliance  or  substance,  provided
  that  such surrender shall be made to the superintendent of the division
  of state police or a member thereof designated by  such  superintendent,
  or  to the sheriff of the county in which such person resides, or in the
  county of Nassau or in the towns  of  Babylon,  Brookhaven,  Huntington,
  Islip  and  Smithtown  in  the  county of Suffolk to the commissioner of
  police or a member of the police department thereof designated  by  such
  commissioner,  or  if such person resides in a city, town other than one
  named in this subparagraph, or village to  the  police  commissioner  or
  head  of  the  police  force or department thereof or to a member of the
  force or  department  designated  by  such  commissioner  or  head;  and
  provided,  further, that the same shall be surrendered by such person in
  accordance with such terms and conditions as may be established by  such
  superintendent,  sheriff,  police  force  or department. Nothing in this
  paragraph shall be construed as granting immunity from  prosecution  for
  any crime or offense except that of unlawful possession of such weapons,
  instruments,  appliances or substances surrendered as herein provided. A
  person who possesses any such weapon, instrument, appliance or substance
  as an executor or administrator or any other lawful  possessor  of  such

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD01088-01-3

 S. 63                               2

  property of a decedent may continue to possess such property for a peri-
  od  not  over fifteen days. If such property is not lawfully disposed of
  within such period the possessor shall  deliver  it  to  an  appropriate
  official  described  in this paragraph or such property may be delivered
  to the superintendent of state police. Such officer shall  hold  it  and
  shall  thereafter  deliver  it  on the written request of such executor,
  administrator or other lawful possessor of  such  property  to  a  named
  person,  provided  such  named  person  is  licensed  to or is otherwise
  lawfully permitted to possess the same. If no  request  to  deliver  the
  property is received by such official within one year of the delivery of
  such  property, such official shall dispose of it in accordance with the
  provisions of section 400.05 of this chapter.
    S 2. Subdivision 6 of section 400.05 of the penal law, as  amended  by
  chapter 578 of the laws of 2006, is amended to read as follows:

    6. A firearm or other weapon which is surrendered AS REQUIRED BY COURT
  ORDER,  or is otherwise voluntarily delivered pursuant to section 265.20
  of this chapter and which has not been declared a nuisance  pursuant  to
  subdivision  one  of  this section, shall be retained by the official to
  whom it was delivered for a period not to exceed one year. Prior to  the
  expiration  of such time period, a person who surrenders a firearm shall
  have the right to arrange for the sale, or transfer, of such firearm  to
  a dealer in firearms licensed in accordance with this chapter or for the
  transfer  of  such firearm to himself or herself provided that a license
  therefor has been issued in accordance with this chapter. If  no  lawful
  disposition  of  the  firearm  or  other  weapon is made within the time
  provided, the firearm or weapon concerned shall be declared  a  nuisance
  and  shall  be  disposed  of  in  accordance with the provisions of this
  section.
    S 3. Section 330.20 of the criminal procedure law is amended by adding
  a new subdivision 2-a to read as follows:

    2-A. FIREARM, RIFLE OR  SHOTGUN  SURRENDER  ORDER.  UPON  ENTRY  OF  A
  VERDICT  OF  NOT  RESPONSIBLE  BY REASON OF MENTAL DISEASE OR DEFECT, OR
  UPON THE ACCEPTANCE OF A PLEA OF NOT RESPONSIBLE  BY  REASON  OF  MENTAL
  DISEASE  OR  DEFECT,  THE  COURT  SHALL  REVOKE  THE DEFENDANT'S FIREARM
  LICENSE, IF ANY, INQUIRE OF  THE  DEFENDANT  AS  TO  THE  EXISTENCE  AND
  LOCATION  OF  ANY  FIREARM,  RIFLE OR SHOTGUN OWNED OR POSSESSED BY SUCH
  DEFENDANT AND DIRECT THE SURRENDER OF SUCH  FIREARM,  RIFLE  OR  SHOTGUN
  PURSUANT  TO  SUBPARAGRAPH  (F)  OF  PARAGRAPH  ONE  OF SUBDIVISION A OF
  SECTION 265.20 OF THE PENAL LAW.
    S 4. The criminal procedure law is amended by  adding  a  new  section
  730.55 to read as follows:

  S 730.55 FIREARM, RIFLE OR SHOTGUN SURRENDER ORDER.
    WHENEVER  A  LOCAL  CRIMINAL  COURT  OR  A SUPERIOR COURT FINDS THAT A
  DEFENDANT IS AN INCAPACITATED PERSON, THE COURT SHALL REVOKE THE DEFEND-
  ANT'S FIREARM LICENSE, IF ANY, INQUIRE OF THE DEFENDANT AS TO THE EXIST-
  ENCE AND LOCATION OF ANY FIREARM, RIFLE OR SHOTGUN OWNED OR POSSESSED BY
  SUCH DEFENDANT AND DIRECT THE SURRENDER OF SUCH FIREARM, RIFLE OR  SHOT-
  GUN  PURSUANT  TO  SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVISION A OF
  SECTION 265.20 OF THE PENAL LAW.
    S 5. The mental hygiene law is amended by adding a new section 9.36 to
  read as follows:

  S 9.36 ISSUANCE OF COURT ORDER AUTHORIZING INVOLUNTARY CARE  AND  TREAT-
           MENT UNDER THIS ARTICLE.
    IN ISSUING ANY ORDER OR DETERMINATION UNDER THIS ARTICLE THAT A PERSON
  IS IN NEED OF INVOLUNTARY CARE AND TREATMENT OR THAT THERE IS A NEED FOR
  RETENTION  OF  SUCH PERSON, THE COURT SHALL REVOKE SUCH PERSON'S FIREARM

 S. 63                               3

  LICENSE, IF ANY, INQUIRE OF THE PERSON AS TO THE EXISTENCE AND  LOCATION
  OF  ANY  FIREARM, RIFLE OR SHOTGUN OWNED OR POSSESSED BY SUCH PERSON AND
  DIRECT THE SURRENDER OF SUCH  FIREARM,  RIFLE  OR  SHOTGUN  PURSUANT  TO
  SUBPARAGRAPH  (F) OF PARAGRAPH ONE OF SUBDIVISION A OF SECTION 265.20 OF
  THE PENAL LAW.
    S 6. Paragraph 2 of subdivision (j) of  section  9.60  of  the  mental
  hygiene  law,  as amended by chapter 158 of the laws of 2005, is amended
  to read as follows:

    (2) If after hearing all relevant evidence, the court finds  by  clear
  and  convincing  evidence  that  the  subject  of the petition meets the
  criteria for assisted outpatient treatment, and there is no  appropriate
  and  feasible  less  restrictive  alternative,  the  court may order the
  subject to receive assisted outpatient treatment for an  initial  period
  not  to  exceed  six  months.  In  fashioning the order, the court shall
  specifically make findings by clear and  convincing  evidence  that  the
  proposed  treatment  is  the least restrictive treatment appropriate and
  feasible for the subject. The order shall state an  assisted  outpatient
  treatment  plan,  which  shall include all categories of assisted outpa-
  tient treatment, as set forth in paragraph one  of  subdivision  (a)  of
  this section, which the assisted outpatient is to receive, but shall not
  include  any  such  category  that  has not been recommended in both the
  proposed written treatment plan and the testimony provided to the  court
  pursuant  to  subdivision  (i)  of this section.   SUCH ORDER SHALL ALSO
  STATE THAT THE SUBJECT'S FIREARMS LICENSE, IF ANY, IS REVOKED.  FURTHER,
  THE  COURT SHALL INQUIRE OF THE SUBJECT AS TO THE EXISTENCE AND LOCATION
  OF ANY FIREARM, RIFLE OR SHOTGUN OWNED OR POSSESSED BY SUCH  PERSON  AND
  DIRECT  THE  SURRENDER  OF  SUCH  FIREARM,  RIFLE OR SHOTGUN PURSUANT TO
  SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVISION A OF SECTION 265.20  OF
  THE PENAL LAW.
    S  7.  The mental hygiene law is amended by adding a new section 15.36
  to read as follows:

  S 15.36 ISSUANCE OF COURT ORDER AUTHORIZING INVOLUNTARY CARE AND  TREAT-
            MENT UNDER THIS ARTICLE.
    IN ISSUING ANY ORDER OR DETERMINATION UNDER THIS ARTICLE THAT A PERSON
  IS IN NEED OF INVOLUNTARY CARE AND TREATMENT OR THAT THERE IS A NEED FOR
  RETENTION  OF  SUCH PERSON, THE COURT SHALL REVOKE SUCH PERSON'S FIREARM
  LICENSE, IF ANY, INQUIRE OF THE PERSON AS TO THE EXISTENCE AND  LOCATION
  OF  ANY  FIREARM, RIFLE OR SHOTGUN OWNED OR POSSESSED BY SUCH PERSON AND
  DIRECT THE SURRENDER OF SUCH  FIREARM,  RIFLE  OR  SHOTGUN  PURSUANT  TO
  SUBPARAGRAPH  (F) OF PARAGRAPH ONE OF SUBDIVISION A OF SECTION 265.20 OF
  THE PENAL LAW.
    S 8. Section 29.03 of the mental hygiene law is  amended  to  read  as
  follows:

  S 29.03 Effect of court order authorizing retention of a patient.
    No  order or determination under this article that a person is in need
  of involuntary care and treatment or that there was need  for  retention
  of  such  person  shall  be construed or deemed to be a determination or
  finding that such person is  incompetent  or  is  unable  adequately  to
  conduct his OR HER personal or business affairs; PROVIDED, HOWEVER, THAT
  THE  EXISTENCE  OF SUCH AN ORDER OR DETERMINATION SHALL MAKE SUCH PERSON
  INELIGIBLE FOR A FIREARMS LICENSE PURSUANT  TO  SECTION  400.00  OF  THE
  PENAL  LAW  AND  SHALL MAKE SUCH PERSON INELIGIBLE TO PURCHASE A FIREARM
  PURSUANT TO 18 USC 922.
    S 9. Severability. If any clause, sentence, paragraph, section or part
  of this act shall be adjudged by any court of competent jurisdiction  to
  be  invalid  and  after  exhaustion  of all further judicial review, the

 S. 63                               4

  judgment shall not affect, impair or invalidate the  remainder  thereof,
  but  shall  be  confined in its operation to the clause, sentence, para-
  graph, section or part of this act directly involved in the  controversy
  in which the judgment shall have been rendered.
    S  10.  This act shall take effect on the ninetieth day after it shall
  have become a law, provided that the amendments to paragraph 2 of subdi-
  vision (j) of section 9.60 of the mental hygiene law made by section six
  of this act shall not affect the repeal of such  section  and  shall  be
  deemed repealed therewith.