S69-2013 Actions

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

S69-2013 Memo

BILL NUMBER:S69

TITLE OF BILL:
An act
to amend the criminal procedure law and the family court act, in relation
to the mandatory suspension and revocation of firearms licenses upon
issuance of orders of protection

PURPOSE OR GENERAL IDEA OF BILL:
This bill closes a dangerous loophole in the CPL and Family Court Act
provisions governing the immediate surrender of firearms, and the
immediate revocation or suspension of firearm licenses, in both
criminal and Family Court cases where an order of protection is issued.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 amends CPL 530.14(1) to require a court issuing a temporary
order of protection in a criminal case to order the immediate
surrender of all firearms owned or possessed by the person against
whom the order of protection is issued (and the suspension of any
existing firearm license) where the court finds a "substantial risk"
that the individual may use or threaten to use a firearm unlawfully
against the person for whose protection the order was issued. Under
current CPL 530.14 (1), the court, notwithstanding this "substantial
risk" determination, retains complete discretion NOT to order the
surrender of firearms or the suspension of the gun license.

Sections 2 and 3 amend CPL �530.14(2) and (3), respectively, to make
corresponding changes to the existing firearm surrender and gun
license suspension/revocation provisions in criminal cases where,
upon conviction, a final order of protection is issued and in cases
where the defendant has been found to have willfully violated a
pending order of protection.

Sections 4, 5 and 6 amend subdivisions (1), (2) and (3), respectively,
of Family Court Act section 842-a to make corresponding changes to
the existing firearm surrender and gun license suspension/revocation
provisions applicable to Family Court proceedings where a temporary
or final order of protection is issued, and in Family Court cases
where the respondent has been found to have willfully violated a
pending order of protection.

Sections 4, 5 and 6, as well as section 7, also replace the term
"serious physical injury" with "physical injury" in separate but
related firearm surrender provisions of Family Court Act sections
842-a and 846-a, thereby conforming these provisions to the
corresponding firearm surrender provisions of the CPL.

Section 8 contains the effective date.

EXISTING LAW:
Both the CPL and Family Court Act currently require a court issuing an
order of protection to order the immediate surrender of all firearms
owned or possessed by the defendant or respondent, and the immediate
suspension or revocation of any existing firearm license, but only
where certain statutory criteria are met (e.g., the defendant or
respondent has a prior conviction for any violent felony offense, or


the order of protection is a final order issued upon conviction for a
felony offense or a non-felony "serious offense" as defined in Penal
Law section 400.00(11)). Where these "mandatory surrender" criteria
are not satisfied, the court may, but need not, order the immediate
surrender of firearms where it finds a "substantial risk" that the
individual may use or threaten to use a firearm unlawfully against
the person for whose protection the order is issued.

JUSTIFICATION:
Guns and domestic violence are a lethal combination, killing on
average, three women every day. The presence of a gun greatly
increases the chances that a domestic violence incident will end with
a homicide. A woman is three times more likely to he murdered by a
gun used by her husband or intimate partner, than killed by a
stranger's guns, knives, or other weapons combined.
A study of female domestic homicides found that the presence of guns
in the home made a woman 1.2 times more likely to be the victim of a
domestic homicide. It is self-evident that firearms must not remain
in the hands of those who present a "substantial risk" that they may
use a firearm to harm the very person for whose benefit an order of
protection is issued. By eliminating the discretion criminal and
Family Courts in these cases now have to allow an individual who is
the subject of an order of protection and has been found to pose a
"substantial risk" to the protected party to continue to possess
firearms, this bill will help to ensure that surviving victims of
domestic violence and other crimes receive the maximum protection the
law can provide.

PRIOR LEGISLATIVE HISTORY:
2011-12: S.674
2010-    S.7142-A Passed Senate

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.

S69-2013 Text

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

                                     69

                         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 criminal procedure law and the family court act,  in
    relation  to  the  mandatory  suspension  and  revocation  of firearms
    licenses upon issuance of orders of protection

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


    Section  1.   The opening paragraph and paragraph (b) of subdivision 1
  of section 530.14 of the criminal procedure law, as added by chapter 644
  of the laws of 1996, are amended to read as follows:

    Mandatory [and permissive] suspension of firearms license and ineligi-
  bility  for  such  a  license  upon  issuance  of  temporary  order   of
  protection.  Whenever a temporary order of protection is issued pursuant
  to  subdivision  one  of  section  530.12  or subdivision one of section
  530.13 of this article:

    (b) the court [may] SHALL where the court  finds  a  substantial  risk
  that  the  defendant  may  use  or  threaten to use a firearm unlawfully
  against the person or persons for whose protection the  temporary  order
  of  protection is issued, suspend any such existing license possessed by
  the defendant, order the defendant ineligible for  such  a  license  and
  order the immediate surrender of any or all firearms owned or possessed.
    S  2.   Subdivision 2 of section 530.14 of the criminal procedure law,
  as added by chapter 644 of the laws of  1996,  is  amended  to  read  as
  follows:

    2.  Mandatory  [and  permissive]  revocation or suspension of firearms
  license and ineligibility for such a license upon issuance of  an  order
  of  protection.  Whenever  an  order of protection is issued pursuant to
  subdivision five of section 530.12 or subdivision four of section 530.13
  of this article:

    (a) the court shall revoke any such existing license possessed by  the
  defendant,  order  the defendant ineligible for such a license and order
  the immediate surrender of any or all firearms owned or possessed  where
  such action is required by section 400.00 of the penal law; and

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD01085-01-3

 S. 69                               2

    (b)  the  court  [may]  SHALL where the court finds a substantial risk
  that the defendant may use or  threaten  to  use  a  firearm  unlawfully
  against  the  person  or  persons  for  whose  protection  the  order of
  protection is issued, (i) revoke any such existing license possessed  by
  the  defendant,  order  the  defendant ineligible for such a license and
  order the immediate surrender of any or all firearms owned or  possessed
  or  (ii)  suspend  or  continue  to  suspend  any  such existing license
  possessed by the defendant, order the defendant ineligible  for  such  a
  license  and  order the immediate surrender of any or all firearms owned
  or possessed.
    S 3.  The opening paragraph and paragraph  (b)  of  subdivision  3  of
  section  530.14  of the criminal procedure law, the opening paragraph as
  amended by chapter 597 of the laws of 1998 and paragraph (b) as added by
  chapter 644 of the laws of 1996, are amended to read as follows:

    Mandatory  [and  permissive]  revocation  or  suspension  of  firearms
  license and ineligibility for such a license upon a finding of a willful
  failure  to  obey  an order of protection. Whenever a defendant has been
  found pursuant to subdivision eleven of section  530.12  or  subdivision
  eight of section 530.13 of this article to have willfully failed to obey
  an  order  of  protection issued by a court of competent jurisdiction in
  this state or another state,  territorial  or  tribal  jurisdiction,  in
  addition  to any other remedies available pursuant to subdivision eleven
  of section 530.12 or subdivision eight of section 530.13 of  this  arti-
  cle:

    (b)  the  court  [may]  SHALL where the court finds a substantial risk
  that the defendant may use or  threaten  to  use  a  firearm  unlawfully
  against  the  person  or  persons  for  whose  protection  the  order of
  protection was issued, (i) revoke any such existing license possessed by
  the defendant, order the defendant ineligible for  such  a  license  and
  order  the immediate surrender of any or all firearms owned or possessed
  or (ii) suspend any such existing license possessed  by  the  defendant,
  order  the defendant ineligible for such a license and order the immedi-
  ate surrender of any or all firearms owned or possessed.
    S 4. Subdivision 1 of section 842-a of the family court act, as  added
  by chapter 644 of the laws of 1996 and paragraph (a) as amended by chap-
  ter 434 of the laws of 2000, is amended to read as follows:

    1. Mandatory [and permissive] suspension of firearms license and inel-
  igibility  for  such a license upon the issuance of a temporary order of
  protection.  Whenever a temporary order of protection is issued pursuant
  to section eight hundred twenty-eight of this article:

    (a) the court shall suspend any such existing license possessed by the
  respondent, order the respondent ineligible  for  such  a  license,  and
  order  the immediate surrender of any or all firearms owned or possessed
  where the court receives information that gives the court good cause  to
  believe  that:  (i) the respondent has a prior conviction of any violent
  felony offense as defined in section 70.02 of the penal  law;  (ii)  the
  respondent  has previously been found to have willfully failed to obey a
  prior order of protection and such  willful  failure  involved  (A)  the
  infliction of [serious] physical injury, as defined in subdivision [ten]
  NINE of section 10.00 of the penal law, (B) the use or threatened use of
  a  deadly  weapon  or dangerous instrument as those terms are defined in
  subdivisions twelve and thirteen of section 10.00 of the penal  law,  or
  (C)  behavior  constituting  any  violent  felony  offense as defined in
  section 70.02 of the penal law; or (iii)  the  respondent  has  a  prior
  conviction for stalking in the first degree as defined in section 120.60
  of  the  penal  law, stalking in the second degree as defined in section

 S. 69                               3

  120.55 of the penal law, stalking in the  third  degree  as  defined  in
  section  120.50  of  the  penal  law or stalking in the fourth degree as
  defined in section 120.45 of such law; and
    (b)  the  court  [may]  SHALL where the court finds a substantial risk
  that the respondent may use or threaten  to  use  a  firearm  unlawfully
  against  the  person or persons for whose protection the temporary order
  of protection is issued, suspend any such existing license possessed  by
  the  respondent, order the respondent ineligible for such a license, and
  order the immediate surrender of any or all firearms owned or possessed.
    S 5. Subdivision 2 of section 842-a of the family court act, as  added
  by chapter 644 of the laws of 1996, is amended to read as follows:

    2.    Mandatory  [and permissive] revocation or suspension of firearms
  license and ineligibility for such a license upon  the  issuance  of  an
  order  of protection. Whenever an order of protection is issued pursuant
  to section eight hundred forty-one of this part:

    (a) the court shall revoke any such existing license possessed by  the
  respondent,  order  the  respondent  ineligible  for such a license, and
  order the immediate surrender of any or all firearms owned or  possessed
  where the court finds that the conduct which resulted in the issuance of
  the  order  of protection involved (i) the infliction of [serious] phys-
  ical injury, as defined in subdivision [ten] NINE of  section  10.00  of
  the  penal  law,  (ii)  the  use or threatened use of a deadly weapon or
  dangerous instrument as those terms are defined in  subdivisions  twelve
  and  thirteen  of  section  10.00  of  the  penal law, or (iii) behavior
  constituting any violent felony offense as defined in section  70.02  of
  the penal law; and
    (b)  the  court  [may] SHALL, where the court finds a substantial risk
  that the respondent may use or threaten  to  use  a  firearm  unlawfully
  against  the  person  or  persons  for  whose  protection  the  order of
  protection is issued, (i) revoke any such existing license possessed  by
  the  respondent,  order the respondent ineligible for such a license and
  order the immediate surrender of any or all firearms owned or  possessed
  or  (ii)  suspend  or  continue  to  suspend  any  such existing license
  possessed by the respondent, order the respondent ineligible for such  a
  license,  and order the immediate surrender of any or all firearms owned
  or possessed.
    S 6. Subdivision 3 of section 842-a of the family court act, as  added
  by  chapter 644 of the laws of 1996, the opening paragraph as amended by
  chapter 597 of the laws of 1998 and paragraph (a) as amended by  chapter
  635 of the laws of 1999, is amended to read as follows:

    3.    Mandatory  [and permissive] revocation or suspension of firearms
  license and ineligibility for such a license upon a finding of a willful
  failure to obey an order of protection. Whenever a respondent  has  been
  found,  pursuant  to  section  eight hundred forty-six-a of this part to
  have willfully failed to obey an order  of  protection  issued  by  this
  court or an order of protection issued by a court of competent jurisdic-
  tion  in  another state, territorial or tribal jurisdiction, in addition
  to any other  remedies  available  pursuant  to  section  eight  hundred
  forty-six-a of this part:

    (a)  the court shall revoke any such existing license possessed by the
  respondent, order the respondent ineligible  for  such  a  license,  and
  order  the immediate surrender of any or all firearms owned or possessed
  where the willful failure to obey such order involves (i) the infliction
  of [serious] physical injury, as defined in subdivision  [ten]  NINE  of
  section  10.00  of  the  penal  law, (ii) the use or threatened use of a
  deadly weapon or dangerous instrument as  those  terms  are  defined  in

 S. 69                               4

  subdivisions  twelve  and thirteen of section 10.00 of the penal law, or
  (iii) behavior constituting any violent felony  offense  as  defined  in
  section  70.02  of the penal law; or (iv) behavior constituting stalking
  in  the  first  degree  as  defined  in section 120.60 of the penal law,
  stalking in the second degree as defined in section 120.55 of the  penal
  law,  stalking  in  the third degree as defined in section 120.50 of the
  penal law or stalking in the fourth degree as defined in section  120.45
  of such law; and
    (b)  the  court  [may]  SHALL where the court finds a substantial risk
  that the respondent may use or threaten  to  use  a  firearm  unlawfully
  against  the  person  or  persons  for  whose  protection  the  order of
  protection was issued, (i) revoke any such existing license possessed by
  the respondent, order the respondent  ineligible  for  such  a  license,
  whether  or  not  the respondent possesses such a license, and order the
  immediate surrender of any or all firearms owned or  possessed  or  (ii)
  suspend any such existing license possessed by the respondent, order the
  respondent  ineligible  for  such  a  license,  and  order the immediate
  surrender of any or all firearms owned or possessed.
    S 7. Section 846-a of the family court act, as amended by chapter  597
  of the laws of 1998, is amended to read as follows:

    S  846-a.  Powers on failure to obey order. If a respondent is brought
  before the court for failure to obey any lawful order issued under  this
  article  or an order of protection issued by a court of competent juris-
  diction of another  state,  territorial  or  tribal  jurisdiction  in  a
  proceeding  and  if,  after hearing, the court is satisfied by competent
  proof that the respondent has willfully failed to obey any  such  order,
  the  court  may modify an existing order to add reasonable conditions of
  behavior to the existing order  of  protection,  make  a  new  order  of
  protection  in  accordance  with section eight hundred forty-two OF THIS
  PART, may order the forfeiture of bail in a manner consistent with arti-
  cle five hundred forty of the criminal procedure law if  bail  has  been
  ordered  pursuant  to  this  act,  may  order  the respondent to pay the
  petitioner's reasonable and necessary counsel fees  in  connection  with
  the  violation  petition where the court finds that the violation of its
  order was willful, and may commit the respondent to jail for a term  not
  to exceed six months.  Such commitment may be served upon certain speci-
  fied  days  or parts of days as the court may direct, and the court may,
  at any time within the term of such sentence, revoke such suspension and
  commit the respondent for the remainder of  the  original  sentence,  or
  suspend the remainder of such sentence. If the court determines that the
  willful  failure to obey such order involves violent behavior constitut-
  ing the crimes of menacing, reckless endangerment, assault or  attempted
  assault  and  if such a respondent is licensed to carry, possess, repair
  and dispose of firearms pursuant to section 400.00 of the penal law, the
  court [may] SHALL also immediately revoke such license and  [may]  SHALL
  arrange  for  the  immediate  surrender and disposal of any firearm such
  respondent owns or possesses.  If the willful failure to obey such order
  involves the infliction of  [serious]  physical  injury  as  defined  in
  subdivision  [ten]  NINE of section 10.00 of the penal law or the use or
  threatened use of a deadly weapon  or  dangerous  instrument,  as  those
  terms  are  defined in subdivisions twelve and thirteen of section 10.00
  of the penal law, such revocation and immediate surrender  and  disposal
  of  any  firearm  owned  or  possessed by respondent shall be mandatory,
  pursuant to subdivision eleven of section 400.00 of the penal law.
    S 8. This act shall take effect immediately.