S08121 Summary:

BILL NOS08121
 
SAME ASSAME AS A10272
 
SPONSORPHILLIPS
 
COSPNSR
 
MLTSPNSR
 
Amd §§265.00 & 400.00, Pen L; rpld §§370.15 & 380.97, add §§370.15, 380.97 & 370.25, amd §530.14, CP L; amd §842-a, Fam Ct Act
 
Relates to the possession of weapons by domestic violence offenders.
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S08121 Actions:

BILL NOS08121
 
03/30/2018REFERRED TO RULES
03/30/2018ORDERED TO THIRD READING CAL.741
03/30/2018MESSAGE OF NECESSITY - 3 DAY MESSAGE
03/30/2018PASSED SENATE
03/30/2018DELIVERED TO ASSEMBLY
03/30/2018referred to codes
03/30/2018substituted for a10272
03/30/2018ordered to third reading rules cal.25
03/30/2018message of necessity - 3 day message
03/30/2018passed assembly
03/30/2018returned to senate
04/02/2018DELIVERED TO GOVERNOR
04/12/2018SIGNED CHAP.60
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S08121 Committee Votes:

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S08121 Floor Votes:

DATE:03/30/2018Assembly Vote  YEA/NAY: 94/34
AbbateERCrouchNOGuntherYMayerYPichardoYTaylorY
AbinantiYCurranNOHarrisYMcDonaldYPretlowYThieleY
ArroyoYCusickYHawleyNOMcDonoughERQuartERTitoneY
AubryYCymbrowitzYHevesiYMiller B NORaNOTitusY
BarclayNODavilaYHikindERMiller MGYRaiaERVanelY
BarnwellYDe La RosaYHooperYMiller MLERRamosYWalkerY
BarrettERDenDekkerYHunterYMontesanoNORichardsonYWallaceY
BarronYDickensYHyndmanYMorelleYRiveraYWalshNO
BenedettoYDilanYJaffeeYMorinelloNORodriguezYWalterNO
BichotteYDinowitzYJean-PierreYMosleyYRosenthal D ERWeinsteinY
BlakeYDiPietroNOJenneYMurrayNORosenthal L YWeprinER
BlankenbushNOD'UrsoYJohnsYNiouYRozicERWilliamsY
BrabenecNOEnglebrightYJonesYNolanYRyanYWoernerY
BraunsteinYErrigoNOJoynerYNorrisNOSantabarbaraYWrightY
BrindisiYFahyYKimYOaksNOSchimmingerYZebrowskiY
BronsonYFinchNOKolbNOO'DonnellYSeawrightYMr. SpeakerY
BuchwaldERFitzpatrickNOLalorNOOrtizYSepulvedaY
ButlerNOFriendNOLavineYOtisYSimonY
ByrneNOGalefYLawrenceNOPalmesanoNOSimotasY
CahillYGanttERLentolYPalumboNOSkartadosER
CarrollYGarbarinoNOLiftonYPaulinYSkoufisY
CastorinaNOGiglioNOLupardoYPellegrinoYSolagesY
ColtonYGlickYMageeNOPeoples-StokesYStecNO
CookYGoodellNOMagnarelliYPerryYSteckY
CrespoYGottfriedYMalliotakisNOPheffer AmatoYStirpeY

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S08121 Memo:

Memo not available
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S08121 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8121
 
                    IN SENATE
 
                                     March 30, 2018
                                       ___________
 
        Introduced  by  Sen.  PHILLIPS  --  (at request of the Governor) -- read
          twice and ordered printed, and when printed to  be  committed  to  the
          Committee on Rules
 
        AN ACT to amend the penal law, the criminal procedure law and the family
          court  act,  in  relation  to  the  possession  of weapons by domestic
          violence offenders; and to repeal certain provisions of  the  criminal
          procedure law relating thereto
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Subdivision 17 of  section  265.00  of  the  penal  law  is
     2  amended by adding a new paragraph (c) to read as follows:
     3    (c)  any of the following offenses, where the defendant and the person
     4  against whom the offense was committed were members of the  same  family
     5  or  household  as  defined  in  subdivision one of section 530.11 of the
     6  criminal procedure law and as established pursuant to section 370.15  of
     7  the  criminal  procedure law:   assault in the third degree; menacing in
     8  the third degree; menacing in the second degree; criminal obstruction of
     9  breathing or blood circulation;  unlawful  imprisonment  in  the  second
    10  degree;  coercion  in  the third degree; criminal tampering in the third
    11  degree; criminal contempt in the second degree; harassment in the  first
    12  degree; aggravated harassment in the second degree; criminal trespass in
    13  the  third  degree; criminal trespass in the second degree; arson in the
    14  fifth degree; or attempt to commit any of the above-listed offenses.
    15    § 2. Section 370.15 of the criminal procedure law is  REPEALED  and  a
    16  new section 370.15 is added to read as follows:
    17  § 370.15 Procedure  for  determining  whether certain misdemeanor crimes
    18             are serious offenses under the penal law.
    19    1. When a defendant has been charged with assault in the third degree,
    20  menacing in the third degree, menacing in the  second  degree,  criminal
    21  obstruction  of breathing or blood circulation, unlawful imprisonment in
    22  the second degree, coercion in the third degree, criminal  tampering  in
    23  the  third degree, criminal contempt in the second degree, harassment in
    24  the first degree, aggravated harassment in the second  degree,  criminal
    25  trespass  in  the  third degree, criminal trespass in the second degree,
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD12054-02-8

        S. 8121                             2
 
     1  arson in the fifth degree, or attempt to commit any of the  above-listed
     2  offenses,  the  people  may,  at arraignment or no later than forty-five
     3  days after arraignment, serve on the defendant and file with the court a
     4  notice  alleging  that  the  defendant  and the person alleged to be the
     5  victim of such crime were members of the same  family  or  household  as
     6  defined in subdivision one of section 530.11 of this chapter.
     7    2.  Such notice shall include the name of the person alleged to be the
     8  victim of such crime  and  shall  specify  the  nature  of  the  alleged
     9  relationship  as  set forth in subdivision one of section 530.11 of this
    10  chapter. Upon conviction of such offense, the  court  shall  advise  the
    11  defendant  that he or she is entitled to a hearing solely on the allega-
    12  tion contained in the notice and, if necessary, an  adjournment  of  the
    13  sentencing  proceeding in order to prepare for such hearing, and that if
    14  such allegation is sustained, that determination and conviction will  be
    15  reported to the division of criminal justice services.
    16    3.  After  having been advised by the court as provided in subdivision
    17  two of this section, the defendant may stipulate or admit, orally on the
    18  record or in writing, that he or she  is  related  or  situated  to  the
    19  victim  of such crime in the manner described in subdivision one of this
    20  section. In such case, such relationship shall  be  deemed  established.
    21  If  the  defendant  denies  that he or she is related or situated to the
    22  victim of the crime as alleged in the notice served by  the  people,  or
    23  stands  mute with respect to such allegation, then the people shall bear
    24  the burden to prove beyond a reasonable  doubt  that  the  defendant  is
    25  related  or  situated to the victim in the manner alleged in the notice.
    26  The court may consider reliable hearsay  evidence  submitted  by  either
    27  party  provided  that it is relevant to the determination of the allega-
    28  tion. Facts previously proven at trial or elicited at the time of  entry
    29  of  a  plea  of  guilty  shall be deemed established beyond a reasonable
    30  doubt and shall not be relitigated. At the conclusion of the hearing, or
    31  upon such a stipulation or admission, as  applicable,  the  court  shall
    32  make a specific written determination with respect to such allegation.
    33    §  3.  Section  380.97 of the criminal procedure law is REPEALED and a
    34  new section 380.97 is added to read as follows:
    35  § 380.97 Notification  to  division  of  criminal  justice  services  of
    36             certain misdemeanor convictions.
    37    Upon  judgment  of conviction of assault in the third degree, menacing
    38  in the third degree, menacing in the second degree, criminal obstruction
    39  of breathing or blood circulation, unlawful imprisonment in  the  second
    40  degree,  coercion  in  the third degree, criminal tampering in the third
    41  degree, criminal contempt in the second degree, harassment in the  first
    42  degree, or aggravated harassment in the second degree, criminal trespass
    43  in  the  third  degree, criminal trespass in the second degree, arson in
    44  the fifth degree, or attempt to commit any of the above-listed offenses,
    45  when the defendant and victim have been determined, pursuant to  section
    46  370.15  of  this  part, to be members of the same family or household as
    47  defined in subdivision one of section 530.11 of this chapter, the  clerk
    48  of the court shall include notification and a copy of the written deter-
    49  mination  in  a  report  of  such conviction to the division of criminal
    50  justice services to enable the division to report such determination  to
    51  the Federal Bureau of Investigation and assist the bureau in identifying
    52  persons  prohibited  from  purchasing  and possessing a firearm or other
    53  weapon due  to conviction of an offense  specified  in  paragraph  c  of
    54  subdivision seventeen of section 265.00 of the penal law.
    55    § 4. Section 530.14 of the criminal procedure law, as added by chapter
    56  644  of  the laws of 1996, the opening paragraph of subdivision 1, para-

        S. 8121                             3
 
     1  graph (b) of subdivision 1, the  opening  paragraph  of  subdivision  2,
     2  paragraph  (b)  of subdivision 2, the opening paragraph of subdivision 3
     3  and paragraph (b) of subdivision 3 as amended by chapter 1 of  the  laws
     4  of 2013, paragraph (a) of subdivision 1 as amended by chapter 434 of the
     5  laws of 2000, clause (A) of subparagraph (ii) of paragraph (a) of subdi-
     6  vision  1  and  subparagraph  (i)  of  paragraph (a) of subdivision 3 as
     7  amended by chapter 198 of the laws of 2007, and paragraph (a) of  subdi-
     8  vision  3  as  amended by chapter 635 of the laws of 1999, is amended to
     9  read as follows:
    10  § 530.14 Suspension and revocation  of  a  license  to  carry,  possess,
    11             repair  or  dispose  of  a    firearm or firearms pursuant to
    12             section 400.00 of the penal law and ineligibility for such  a
    13             license; order to surrender firearms.
    14    1. Suspension of firearms license and ineligibility for such a license
    15  upon  issuance  of  temporary  order of protection. Whenever a temporary
    16  order of protection is issued pursuant to  subdivision  one  of  section
    17  530.12 or subdivision one of section 530.13 of this article:
    18    (a) the court shall suspend any such existing license possessed by the
    19  defendant,  order  the defendant ineligible for such a license and order
    20  the immediate surrender of any or  all  firearms,  rifles  and  shotguns
    21  owned  or  possessed where the court receives information that gives the
    22  court good  cause  to  believe  that  (i)  the  defendant  has  a  prior
    23  conviction  of any violent felony offense as defined in section 70.02 of
    24  the penal law; (ii) the defendant has  previously  been  found  to  have
    25  willfully  failed  to  obey a prior order of protection and such willful
    26  failure involved (A) the infliction of physical injury,  as  defined  in
    27  subdivision  nine  of  section  10.00  of  the penal law, (B) the use or
    28  threatened use of a deadly weapon or dangerous instrument as those terms
    29  are defined in subdivisions twelve and thirteen of section 10.00 of  the
    30  penal  law,  or  (C) behavior constituting any violent felony offense as
    31  defined in section 70.02 of the penal law; or (iii) the defendant has  a
    32  prior  conviction for stalking in the first degree as defined in section
    33  120.60 of the penal law, stalking in the second  degree  as  defined  in
    34  section 120.55 of the penal law, stalking in the third degree as defined
    35  in  section  120.50 of the penal law or stalking in the fourth degree as
    36  defined in section 120.45 of such law; and
    37    (b) the court shall where the court finds a substantial risk that  the
    38  defendant  may use or threaten to use a firearm, rifle or shotgun unlaw-
    39  fully against the person or persons for whose protection  the  temporary
    40  order  of  protection  is  issued,  suspend  any  such  existing license
    41  possessed by the defendant, order the defendant ineligible  for  such  a
    42  license  and  order the immediate surrender pursuant to subparagraph (f)
    43  of paragraph one of subdivision a of section 265.20 and subdivision  six
    44  of  section  400.05 of the penal law, of any or all firearms, rifles and
    45  shotguns owned or possessed.
    46    2. Revocation or suspension of firearms license and ineligibility  for
    47  such  a  license  upon  issuance  of an order of protection. Whenever an
    48  order of protection is issued pursuant to subdivision  five  of  section
    49  530.12 or subdivision four of section 530.13 of this article:
    50    (a)  the court shall revoke any such existing license possessed by the
    51  defendant, order the defendant ineligible for such a license  and  order
    52  the  immediate  surrender  of  any  or all firearms, rifles and shotguns
    53  owned or possessed where such action is required by  section  400.00  of
    54  the penal law; and
    55    (b)  the court shall where the court finds a substantial risk that the
    56  defendant may use or threaten to  use  a  firearm,  rifles  or  shotguns

        S. 8121                             4

     1  unlawfully  against the person or persons for whose protection the order
     2  of protection is issued, (i) revoke any such existing license  possessed
     3  by  the defendant, order the defendant ineligible for such a license and
     4  order  the  immediate surrender of any or all firearms, rifles and shot-
     5  guns owned or possessed or (ii) suspend or continue to suspend any  such
     6  existing  license possessed by the defendant, order the defendant ineli-
     7  gible for such a license and order the immediate surrender  pursuant  to
     8  subparagraph (f) of paragraph one of subdivision a of section 265.20 and
     9  subdivision  six  of  section  400.05  of  the  penal law, of any or all
    10  firearms, rifles and shotguns owned or possessed.
    11    3. Revocation or suspension of firearms license and ineligibility  for
    12  such  a  license upon a finding of a willful failure to obey an order of
    13  protection. Whenever a defendant has been found pursuant to  subdivision
    14  eleven  of section 530.12 or subdivision eight of section 530.13 of this
    15  article to have willfully failed to obey an order of  protection  issued
    16  by  a  court  of  competent jurisdiction in this state or another state,
    17  territorial or tribal jurisdiction, in addition to  any  other  remedies
    18  available  pursuant  to subdivision eleven of section 530.12 or subdivi-
    19  sion eight of section 530.13 of this article:
    20    (a) the court shall revoke any such existing license possessed by  the
    21  defendant,  order  the defendant ineligible for such a license and order
    22  the immediate surrender of any or  all  firearms,  rifles  and  shotguns
    23  owned or possessed where the willful failure to obey such order involved
    24  (i) the infliction of physical injury, as defined in subdivision nine of
    25  section  10.00  of  the  penal  law, (ii) the use or threatened use of a
    26  deadly weapon or dangerous instrument as  those  terms  are  defined  in
    27  subdivisions  twelve  and  thirteen  of  section 10.00 of the penal law,
    28  (iii) behavior constituting any violent felony  offense  as  defined  in
    29  section  70.02  of the penal law; or (iv) behavior constituting stalking
    30  in the first degree as defined in  section  120.60  of  the  penal  law,
    31  stalking  in the second degree as defined in section 120.55 of the penal
    32  law, stalking in the third degree as defined in section  120.50  of  the
    33  penal  law or stalking in the fourth degree as defined in section 120.45
    34  of such law; and
    35    (b) the court shall where the court finds a substantial risk that  the
    36  defendant  may use or threaten to use a firearm, rifle or shotgun unlaw-
    37  fully against the person or persons for whose protection  the  order  of
    38  protection was issued, (i) revoke any such existing license possessed by
    39  the  defendant,  order  the  defendant ineligible for such a license and
    40  order the immediate surrender pursuant to subparagraph (f) of  paragraph
    41  one  of  subdivision  a of section 265.20 and subdivision six of section
    42  400.05 of the penal law, of any or all  firearms,  rifles  and  shotguns
    43  owned  or  possessed or (ii) suspend any such existing license possessed
    44  by the defendant, order the defendant ineligible for such a license  and
    45  order  the immediate surrender pursuant to subparagraph (f) of paragraph
    46  one of subdivision a of section 265.20 and subdivision  six  of  section
    47  400.05  of  the  penal  law, of any or all firearms, rifles and shotguns
    48  owned or possessed.
    49    4. Suspension. Any suspension order issued pursuant  to  this  section
    50  shall  remain  in  effect  for  the  duration  of the temporary order of
    51  protection or order of protection, unless modified  or  vacated  by  the
    52  court.
    53    5.  Surrender.  (a)  Where an order to surrender one or more firearms,
    54  rifles and shotguns has been issued, the temporary order  of  protection
    55  or  order  of  protection  shall specify the place where such [firearms]
    56  weapons shall be surrendered, shall specify a date and time by which the

        S. 8121                             5
 
     1  surrender shall be completed and, to the extent possible, shall describe
     2  such [firearms] weapons to be surrendered, and shall direct the authori-
     3  ty receiving such surrendered [firearms] weapons to  immediately  notify
     4  the court of such surrender.
     5    (b)  The  prompt surrender of one or more firearms, rifles or shotguns
     6  pursuant to a court order issued  pursuant  to  this  section  shall  be
     7  considered  a  voluntary  surrender  for purposes of subparagraph (f) of
     8  paragraph one of subdivision a of section 265.20 of the penal  law.  The
     9  disposition  of  any such [firearms] weapons shall be in accordance with
    10  the provisions of subdivision six of section 400.05 of  the  penal  law;
    11  provided,  however, that upon termination of any suspension order issued
    12  pursuant to this section or section eight  hundred  forty-two-a  of  the
    13  family  court act, upon written application of the subject of the order,
    14  with notice and opportunity to be heard to the  district  attorney,  the
    15  county  attorney,  the  protected  party,  and  every  licensing officer
    16  responsible for issuance of a firearms license to  the  subject  of  the
    17  order  pursuant  to  article  four  hundred of the penal law, and upon a
    18  written finding that there is  no  legal  impediment  to  the  subject's
    19  possession  of  a  surrendered  firearm,  rifle or shotgun, any court of
    20  record exercising criminal  jurisdiction  may  order  the  return  of  a
    21  firearm,  rifle  or shotgun not otherwise disposed of in accordance with
    22  subdivision six of section 400.05 of the penal law.   When issuing  such
    23  order  in  connection  with any firearm subject to a license requirement
    24  under article four hundred of the penal law, if  the  licensing  officer
    25  informs  the  court  that he or she will seek to revoke the license, the
    26  order shall be stayed by the court until the conclusion of  any  license
    27  revocation proceeding.
    28    (c)  The  provisions  of  this  section  shall not be deemed to limit,
    29  restrict or otherwise impair the authority of the  court  to  order  and
    30  direct  the  surrender of any or all firearms, rifles and shotguns owned
    31  or possessed by a defendant pursuant to sections  530.12  or  530.13  of
    32  this article.
    33    6.  Notice.  (a)  Where an order [of] requiring surrender, revocation,
    34  suspension or ineligibility has been issued pursuant  to  this  section,
    35  any  temporary  order  of protection or order of protection issued shall
    36  state that such firearm license has been suspended or  revoked  or  that
    37  the  defendant  is  ineligible for such license, as the case may be, and
    38  that the defendant is prohibited from possessing any firearm,  rifle  or
    39  shotgun.
    40    (b) The court revoking or suspending the license, ordering the defend-
    41  ant  ineligible  for  such  a  license, or ordering the surrender of any
    42  firearm, rifle or shotgun shall immediately notify the duly  constituted
    43  police  authorities  of  the locality concerning such action and, in the
    44  case of orders of protection and temporary orders of  protection  issued
    45  pursuant to section 530.12 of this article, shall immediately notify the
    46  statewide registry of orders of protection.
    47    (c)  The  court  revoking  or  suspending  the license or ordering the
    48  defendant ineligible for such a license shall give written notice there-
    49  of without unnecessary delay to the division  of  state  police  at  its
    50  office in the city of Albany.
    51    (d) Where an order of revocation, suspension, ineligibility or surren-
    52  der  is  modified  or  vacated,  the  court shall immediately notify the
    53  statewide registry of orders of  protection  and  the  duly  constituted
    54  police authorities of the locality concerning such action and shall give
    55  written  notice  thereof  without  unnecessary  delay to the division of
    56  state police at its office in the city of Albany.

        S. 8121                             6
 
     1    7. Hearing. The defendant shall have the right to a hearing before the
     2  court regarding any revocation, suspension, ineligibility  or  surrender
     3  order  issued  pursuant  to  this section, provided that nothing in this
     4  subdivision shall preclude the court from issuing any such  order  prior
     5  to  a hearing. Where the court has issued such an order prior to a hear-
     6  ing, it shall commence such hearing within fourteen  days  of  the  date
     7  such order was issued.
     8    8. Nothing in this section shall delay or otherwise interfere with the
     9  issuance of a temporary order of protection or the timely arraignment of
    10  a defendant in custody.
    11    § 5. Section 842-a of the family court act, as added by chapter 644 of
    12  the  laws of 1996, subdivision 1, 2 and 3 as amended by chapter 1 of the
    13  laws of 2013, is amended to read as follows:
    14    § 842-a. Suspension and revocation of a  license  to  carry,  possess,
    15  repair or dispose of a firearm or firearms pursuant to section 400.00 of
    16  the  penal  law and ineligibility for such a license; order to surrender
    17  firearms.
    18    1. Suspension of firearms license and ineligibility for such a license
    19  upon the issuance of a temporary order of protection. Whenever a  tempo-
    20  rary  order  of  protection  is issued pursuant to section eight hundred
    21  twenty-eight of this article, or pursuant to article  four,  five,  six,
    22  seven or ten of this act:
    23    (a) the court shall suspend any such existing license possessed by the
    24  respondent,  order  the  respondent  ineligible  for such a license, and
    25  order the immediate surrender pursuant to subparagraph (f) of  paragraph
    26  one  of  subdivision  a of section 265.20 and subdivision six of section
    27  400.05 of the penal law, of any or all  firearms,  rifles  and  shotguns
    28  owned  or  possessed where the court receives information that gives the
    29  court good cause to  believe  that:  (i)  the  respondent  has  a  prior
    30  conviction  of any violent felony offense as defined in section 70.02 of
    31  the penal law; (ii) the respondent has previously  been  found  to  have
    32  willfully  failed  to  obey a prior order of protection and such willful
    33  failure involved (A) the infliction of physical injury,  as  defined  in
    34  subdivision  nine  of  section  10.00  of  the penal law, (B) the use or
    35  threatened use of a deadly weapon or dangerous instrument as those terms
    36  are defined in subdivisions twelve and thirteen of section 10.00 of  the
    37  penal  law,  or  (C) behavior constituting any violent felony offense as
    38  defined in section 70.02 of the penal law; or (iii) the respondent has a
    39  prior conviction for stalking in the first degree as defined in  section
    40  120.60  of  the  penal  law, stalking in the second degree as defined in
    41  section 120.55 of the penal law, stalking in the third degree as defined
    42  in section 120.50 of the penal law or stalking in the fourth  degree  as
    43  defined in section 120.45 of such law; and
    44    (b)  the court shall where the court finds a substantial risk that the
    45  respondent may use or threaten to use a firearm, rifle or shotgun unlaw-
    46  fully against the person or persons for whose protection  the  temporary
    47  order  of  protection  is  issued,  suspend  any  such  existing license
    48  possessed by the respondent, order the respondent ineligible for such  a
    49  license,  and order the immediate surrender pursuant to subparagraph (f)
    50  of paragraph one of subdivision a of section 265.20 and subdivision  six
    51  of  section  400.05 of the penal law, of any or all firearms, rifles and
    52  shotguns owned or possessed.
    53    2. Revocation or suspension of firearms license and ineligibility  for
    54  such  a license upon the issuance of an order of protection. Whenever an
    55  order of protection is issued pursuant to section eight  hundred  forty-

        S. 8121                             7
 
     1  one  of  this part, or pursuant to article four, five, six, seven or ten
     2  of this act:
     3    (a)  the court shall revoke any such existing license possessed by the
     4  respondent, order the respondent ineligible  for  such  a  license,  and
     5  order  the immediate surrender pursuant to subparagraph (f) of paragraph
     6  one of subdivision a of section 265.20 and subdivision  six  of  section
     7  400.05  of  the  penal  law, of any or all firearms, rifles and shotguns
     8  owned or possessed where the court finds that the conduct which resulted
     9  in the issuance of the order of protection involved (i)  the  infliction
    10  of  physical  injury, as defined in subdivision nine of section 10.00 of
    11  the penal law, (ii) the use or threatened use  of  a  deadly  weapon  or
    12  dangerous  instrument  as those terms are defined in subdivisions twelve
    13  and thirteen of section 10.00  of  the  penal  law,  or  (iii)  behavior
    14  constituting  any  violent felony offense as defined in section 70.02 of
    15  the penal law; and
    16    (b) the court shall, where the court finds a substantial risk that the
    17  respondent may use or threaten to use a firearm, rifle or shotgun unlaw-
    18  fully against the person or persons for whose protection  the  order  of
    19  protection  is issued, (i) revoke any such existing license possessed by
    20  the respondent, order the respondent ineligible for such a  license  and
    21  order  the immediate surrender pursuant to subparagraph (f) of paragraph
    22  one of subdivision a of section 265.20 and subdivision  six  of  section
    23  400.05  of  the  penal  law, of any or all firearms, rifles and shotguns
    24  owned or possessed or (ii) suspend  or  continue  to  suspend  any  such
    25  existing license possessed by the respondent, order the respondent inel-
    26  igible for such a license, and order the immediate surrender pursuant to
    27  subparagraph (f) of paragraph one of subdivision a of section 265.20 and
    28  subdivision  six  of  section  400.05  of  the  penal law, of any or all
    29  firearms, rifles and shotguns owned or possessed.
    30    3. Revocation or suspension of firearms license and ineligibility  for
    31  such  a  license upon a finding of a willful failure to obey an order of
    32  protection or temporary order of protection. Whenever a  respondent  has
    33  been  found,  pursuant to section eight hundred forty-six-a of this part
    34  to have willfully failed to obey an order  of  protection  or  temporary
    35  order  of  protection  issued  pursuant  to  this  act  or  the domestic
    36  relations law, or by this court or by a court of competent  jurisdiction
    37  in another state, territorial or tribal jurisdiction, in addition to any
    38  other  remedies  available pursuant to section eight hundred forty-six-a
    39  of this part:
    40    (a) the court shall revoke any such existing license possessed by  the
    41  respondent,  order  the  respondent  ineligible  for such a license, and
    42  order the immediate surrender pursuant to subparagraph (f) of  paragraph
    43  one  of  subdivision  a of section 265.20 and subdivision six of section
    44  400.05 of the penal law, of any or all  firearms,  rifles  and  shotguns
    45  owned or possessed where the willful failure to obey such order involves
    46  (i) the infliction of physical injury, as defined in subdivision nine of
    47  section  10.00  of  the  penal  law, (ii) the use or threatened use of a
    48  deadly weapon or dangerous instrument as  those  terms  are  defined  in
    49  subdivisions  twelve  and thirteen of section 10.00 of the penal law, or
    50  (iii) behavior constituting any violent felony  offense  as  defined  in
    51  section  70.02  of the penal law; or (iv) behavior constituting stalking
    52  in the first degree as defined in  section  120.60  of  the  penal  law,
    53  stalking  in the second degree as defined in section 120.55 of the penal
    54  law, stalking in the third degree as defined in section  120.50  of  the
    55  penal  law or stalking in the fourth degree as defined in section 120.45
    56  of such law; and

        S. 8121                             8

     1    (b) the court shall where the court finds a substantial risk that  the
     2  respondent may use or threaten to use a firearm, rifle or shotgun unlaw-
     3  fully  against  the  person or persons for whose protection the order of
     4  protection was issued, (i) revoke any such existing license possessed by
     5  the  respondent,  order  the  respondent  ineligible for such a license,
     6  whether or not the respondent possesses such a license,  and  order  the
     7  immediate  surrender  pursuant  to  subparagraph (f) of paragraph one of
     8  subdivision a of section 265.20 and subdivision six of section 400.05 of
     9  the penal law, of any or all firearms,  rifles  and  shotguns  owned  or
    10  possessed  or  (ii)  suspend  any such existing license possessed by the
    11  respondent, order the respondent ineligible  for  such  a  license,  and
    12  order  the  immediate surrender of any or all firearms, rifles and shot-
    13  guns owned or possessed.
    14    4. Suspension. Any suspension order issued pursuant  to  this  section
    15  shall  remain  in  effect  for  the  duration  of the temporary order of
    16  protection or order of protection, unless modified  or  vacated  by  the
    17  court.
    18    5.  Surrender.  (a)  Where an order to surrender one or more firearms,
    19  rifles or shotguns has been issued, the temporary order of protection or
    20  order of protection shall specify the place where such [firearms]  weap-
    21  ons  shall  be  surrendered,  shall specify a date and time by which the
    22  surrender shall be completed and, to the extent possible, shall describe
    23  such [firearms] weapons to be surrendered and shall direct the authority
    24  receiving such surrendered [firearms] weapons to immediately notify  the
    25  court of such surrender.
    26    (b)  The  prompt surrender of one or more firearms, rifles or shotguns
    27  pursuant to a court order issued pursuant this section shall be  consid-
    28  ered a voluntary surrender for purposes of subparagraph (f) of paragraph
    29  one of subdivision a of section 265.20 of the penal law. The disposition
    30  of  any  such  [firearms]  weapons  shall  be  in  accordance  with  the
    31  provisions of subdivision six  of  section  400.05  of  the  penal  law;
    32  provided,  however  that  upon  the  termination of any suspension order
    33  issued pursuant to this section, any court of record exercising criminal
    34  jurisdiction may order the return of a firearm, rifle or shotgun  pursu-
    35  ant to paragraph b of subdivision five of section 530.14 of the criminal
    36  procedure law.
    37    (c)  The  provisions  of  this  section  shall not be deemed to limit,
    38  restrict or otherwise impair the authority of the  court  to  order  and
    39  direct  the surrender of any or all pistols, revolvers, rifles, shotguns
    40  or other firearms owned or possessed by a respondent  pursuant  to  this
    41  act.
    42    6.  Notice.  (a)  Where an order [of] requiring surrender, revocation,
    43  suspension or ineligibility has been issued pursuant  to  this  section,
    44  any  temporary  order  of protection or order of protection issued shall
    45  state that such firearm license has been suspended or  revoked  or  that
    46  the  respondent  is ineligible for such license, as the case may be, and
    47  that the defendant is prohibited from possessing any firearms, rifles or
    48  shotguns.
    49    (b) The  court  revoking  or  suspending  the  license,  ordering  the
    50  respondent ineligible for such license, or ordering the surrender of any
    51  firearm,  rifles  or  shotguns  shall  immediately  notify the statewide
    52  registry of orders of protection and the duly constituted police author-
    53  ities of the locality of such action.
    54    (c) The court revoking or  suspending  the  license  or  ordering  the
    55  defendant  ineligible for such license shall give written notice thereof

        S. 8121                             9
 
     1  without unnecessary delay to the division of state police at its  office
     2  in the city of Albany.
     3    (d)  Where  an  order  of  revocation,  suspension,  ineligibility, or
     4  surrender is modified or vacated, the court shall immediately notify the
     5  statewide registry of orders of  protection  and  the  duly  constituted
     6  police authorities of the locality concerning such action and shall give
     7  written  notice  thereof  without  unnecessary  delay to the division of
     8  state police at its office in the city of Albany.
     9    7. Hearing. The respondent shall have the right to  a  hearing  before
    10  the court regarding any revocation, suspension, ineligibility or surren-
    11  der order issued pursuant to this section, provided that nothing in this
    12  subdivision  shall  preclude the court from issuing any such order prior
    13  to a hearing. Where the court has issued such an order prior to a  hear-
    14  ing,  it  shall  commence  such hearing within fourteen days of the date
    15  such order was issued.
    16    8. Nothing in this section shall delay or otherwise interfere with the
    17  issuance of a temporary order of protection.
    18    § 6. Paragraph (c) of subdivision 1 of section  400.00  of  the  penal
    19  law,  as amended by chapter 1 of the laws of 2013, is amended to read as
    20  follows:
    21    (c) who has not been convicted anywhere  of  a  felony  or  a  serious
    22  offense  or  who  is not the subject of an outstanding warrant of arrest
    23  issued upon the alleged commission of a felony or serious offense;
    24    § 7. The criminal procedure law is amended by  adding  a  new  section
    25  370.25 to read as follows:
    26  § 370.25 Procedure  for  the  surrender of firearms, rifles and shotguns
    27             upon judgment  of  conviction  for  a  felony  or  a  serious
    28             offense.
    29    1.  Upon judgment of conviction for a felony or a serious offense, the
    30  court shall inquire  of  the  defendant  as  to  the  existence  of  all
    31  firearms,  rifles  and  shotguns  he or she owns or possesses. The court
    32  shall order the immediate surrender, pursuant  to  subparagraph  (f)  of
    33  paragraph  one  of  subdivision a of section 265.20 of the penal law and
    34  subdivision six of section 400.05 of  the  penal  law,  of  any  or  all
    35  firearms, rifles and shotguns owned or possessed by the defendant.
    36    2.  The  court ordering the surrender of any firearms, rifles or shot-
    37  guns as provided in this  section  shall  immediately  notify  the  duly
    38  constituted  police  authorities  of the locality of such action and the
    39  division of state police at its office in the city of Albany. The  court
    40  shall  direct  the authority receiving such surrendered firearms, rifles
    41  and shotguns to immediately notify the court of such surrender.
    42    3. The disposition of any firearms,  rifles  or  shotguns  surrendered
    43  pursuant  to  this section shall be in accordance with the provisions of
    44  subdivision six of section 400.05 of the penal law.
    45    4. The provisions of this  section  shall  not  be  deemed  to  limit,
    46  restrict  or  otherwise  impair  the authority of the court to order and
    47  direct the surrender of any or all firearms, rifles and  shotguns  owned
    48  or possessed by a defendant pursuant to any other provision of law.
    49    §  8.  This  act  shall take effect on the sixtieth day after it shall
    50  have become a law.
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S08121 LFIN:

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S08121 Chamber Video/Transcript:

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