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.