Bill Text: NY A06406 | 2011-2012 | General Assembly | Amended
Bill Title: Provides for the mandatory revocation or suspension of the firearms license of, and eligibility therefor of an individual against whom an order or temporary order of protection has been issued, under certain circumstances.
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Engrossed - Dead) 2012-03-21 - REFERRED TO CHILDREN AND FAMILIES [A06406 Detail]
Download: New_York-2011-A06406-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 6406--A 2011-2012 Regular Sessions I N A S S E M B L Y 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 S 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 S 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 S 3. The family court act is amended by adding a new section 446-a to 8 read as follows: 9 S 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 S 4. The family court act is amended by adding a new section 552 to 17 read as follows: 18 S 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 S 5. The family court act is amended by adding a new section 656-a to 26 read as follows: 27 S 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 S 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 S 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 S 7. The family court act is amended by adding a new section 1056-a 44 to read as follows: 45 S 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 S 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 S 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 S 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 S 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 S 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 S 13. This act shall take effect immediately.