Senate Bill S4244

                                BILL NUMBER:S4244A

TITLE OF BILL:
An act to amend the criminal procedure law, in relation to certain
domestic violence offenses

PURPOSE OR GENERAL IDEA OF BILL:
To ensure that pertinent information regarding misdemeanor crimes of
domestic violence is transmitted to the federal bureau of investigation
for purposes of determining whether a person is disqualified from
purchasing a firearm under federal law based upon conviction for certain
misdemeanor crimes of domestic violence.

SUMMARY OF SPECIFIC PROVISIONS:
Section one amends subdivision 4 of section 170.10 of the criminal
procedure law by adding a new paragraph (f) to provide that where a
defendant is arraigned on a information, a prosecutor's information, or
a misdemeanor complaint, which contains the charges of assault or
attempted assault in the third degree, menacing or attempted menacing in
the second degree, criminal obstruction of breathing or blood
circulation or attempted criminal obstruction of breathing or blood
circulation, forcible touching or attempted forcible touching, the
people may serve upon the defendant and file with the court a notice
alleging that the defendant (i) is a current or former spouse, parent or
guardian of the victim, or (ii) shares a child in common with such
person, or (iii) is cohabiting or has cohabitated with the victim as a
              

spouse, parent, or guardian, or (iv) is or was similarly situated to a
spouse, parent or guardian of the victim. The section further provides
that a defendant may stipulate or admit in the course of a plea
disposition that he or she is related or situated to the victim as
described in which case the relationship shall be deemed established. If
the defendant denies such relationship to the victim as alleged in the
notice served by the people, the people shall have the burden of proving
that the defendant is related or situated to the victim as alleged
beyond a reasonable doubt during the trial. The trier of fact shall make
a determination with respect to such allegation orally on the record or
in writing.

Section two amends section 180.10 of the criminal procedure law by
adding new subdivisions 1(b) and 1(c) to provide that where a felony
complaint which contains the charges of assault or attempted assault in
the third degree, menacing or attempted menacing in the second degree,
criminal obstruction of breathing or blood circulation or attempted
criminal obstruction of breathing or blood circulation, forcible
touching or attempted forcible touching, the people may serve upon the
defendant and file with the court a notice alleging that the defendant
is a current or former spouse, parent, or guardian of the victim, or
shares a child in common with such person, or (iii) is cohabitating or
has cohabitated with the victim as a spouse, parent, or guardian, or
(iv) is or was similarly situated to a spouse, parent or guardian of the
victim, and thereafter follow the same procedures set forth in new
section 170.10(4) (f) above.

Section three amends section 210.15 of the criminal procedure law by
adding a new subdivision (d) to provide where an indictment which
contains the charges of assault or attempted assault in the third
degree, menacing or attempted menacing in the second degree, criminal


obstruction of breathing or blood circulation or attempted criminal
obstruction of breathing or blood circulation, forcible touching or
attempted forcible touching, the people may serve upon the defendant and
file with the court a notice alleging that the defendant (i) is a
current or former spouse, parent or guardian of the victim,#or
(ii) shares a child in common with such person, or (iii)
is cohabiting or has cohabitated with the victim as a
spouse, parent, or guardian, or (iv) is
or was similarly situated to a spouse, parent or guardian
of the victim, and thereafter follow the same procedures
set forth in new Section 170.10(4)(f) above.

Section four amends the criminal procedure Law by adding new section
380.97 which provides that upon judgment of conviction of the offenses
specified above the clerk of,the court shall notify DCJS of the
determination that has been made about the status of the defendant as a
current or former spouse of the victim, parent or guardian of the
victim, sharing a child in common with such the victim or is cohabiting
or has cohabitated with the victim as a spouse, parent, or guardian, or
is or was similarly situated to a spouse, parent or guardian of the
victim.

JUSTIFICATION:
Keeping firearms out of the hands of individuals convicted of certain
violent misdemeanors is of great importance to the citizens of this
state. In Dutchess County alone there have been four recent instances of
deaths due to domestic violence in the past year. These tragic events
highlight the volatility of domestic violence cases and require action
to ensure that an already dangerous situation is not compounded by
allowing individuals convicted of certain misdemeanors access to legal
firearms. This bill a potential gap in the reporting of crimes by our
state to the federal government and ensures that individuals convicted
of certain misdemeanors are barred from purchasing firearms legally.

Currently, a federal firearms licensee (FFL) may not sell or otherwise
dispose of a firearm to a person who has been convicted of a misdemeanor
crime of domestic violence (MCDV). The Criminal Justice Information
Services Division of the Federal Bureau of Investigation (FBI) National
Instant Criminal Background Check System (NICS) determines firearm
eligibility by conducting a background check, which includes a check of
automated databases. In cases where additional information is needed,
follow-up requests are made to agencies such as the police, prosecutors
or the courts; the NICS has three business days to determine whether a
proposed gun transfer is prohibited. If the NICS has not been able to
make a definitive determination within three business days, the FFL
may lawfully transfer the firearm. An MCDV is defined under federal law
as an offense that: (i) is a misdemeanor under federal, state or tribal
law (ii) has as an element the use or attempted use of physical force,
or the threatened use of a deadly weapon; and (iii) at the time the
offense was committed, the defendant was (A) a current or former spouse,
parent, or guardian of the victim; (B) a person with whom the victim
shares a child in common; (C) a person who is cohabiting with or has
cohabitated with the victim as a spouse, parent, or guardian; or (D) a
person who was or is similarly situated to a spouse, parent, or guardian
of the victim. Two critical pieces of information that would enable the
FBI to determine whether a person has been convicted of an MCDV under


federal law and therefore disqualified from purchasing a firearm are not
provided by the State to the FBI.

This bill will provide the mechanism by which the two critical pieces of
information may be transmitted by the State to the FBI. The bill
identifies specific misdemeanor offenses that have the requisite element
of the use of or attempted use of physical force or the threatened use
of a deadly weapon and therefore satisfy one of the criteria under
federal law to constitute an MCDV. In the case of those offenses, the
bill provides the people with the ability to determine at trial the
relationship of the defendant to the victim as described and therefore
satisfy the second of the criteria required under federal law to
constitute an MCDV. If the relationship as described is determined as
provided in the bill, such relationship will be noted on the defendant's
record, which record is transmitted by DCJS to the FBI for purposes of
NICS.

With this critical information in the NICS, if a defendant has been
convicted of an MCDV, the NICS can deny the firearm application without
further research, resulting in greater efficiencies in conducting
background checks and less delay in making determinations as to the
eligibility to acquire a firearm, better ensuring that an individual who
is prohibited under federal law from acquiring a firearm does not
acquire the firearm. By failing to transmit this critical information,
we run the risk that individuals who are prohibited from buying a gun
nevertheless can because we did not give the FBI the necessary
information that requires us to keep the guns out of their hands.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

FISCAL IMPLICATION:
None.

EFFECTIVE DATE:
This act shall take effect on the first of November next succeeding the
date on which it shall have become a law.

                                BILL NUMBER:S4244B

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to certain domestic
violence offenses

PURPOSE OR GENERAL IDEA OF BILL:
To ensure that pertinent information regarding misdemeanor crimes of
domestic violence is transmitted to the federal bureau of
investigation for purposes of determining whether a person is
disqualified from purchasing a firearm under federal law based upon
conviction for certain misdemeanor crimes of domestic violence

SUMMARY OF SPECIFIC PROVISIONS:
Section one amends criminal procedure law by adding a new section
370.15 to provide that when a defendant has been charged with assault
or attempted assault in the third degree, menacing or attempted
menacing in the second degree, criminal obstruction of breathing or
blood circulation or attempted criminal obstruction of breathing or
blood circulation, forcible touching or attempted forcible touching,
the people may, at arraignment or no later than 15 days after
arraignment, for the purpose of notifying the division of criminal
justice services as described in section two below, serve upon the
defendant and file with the court a notice alleging that the
defendant is related or situated to the victim of the crime in the
              

manner specified in 18 U.S.C. 921(a)(33)(A)(ii). The notice must
include the name of the person alleged to be the victim of the
offense, specify the nature of the alleged relationship as set forth
in 18 U.S.C.
921(a)(33)(A)(ii), and set forth specific facts supporting such
allegation. Upon conviction to such offense, the court must advise
the defendant that he or she is entitled to a hearing on the
allegation contained in the notice and, if necessary, an adjournment
of the sentencing
proceeding in order to prepare for such hearing, and that if such
allegation is sustained, that determination and conviction will be
reported to the division of criminal justice services. The section
further provides that a defendant may stipulate or admit orally on
the record or in writing that he or she is related or situated to the
victim as described in this section, in which case the relationship
shall be deemed established for the purpose set forth in section two
below.
If the defendant denies such relationship to the victim as alleged in
the notice served by the people, the people shall have the burden of
proving beyond a reasonable doubt that the defendant is related or
situated to the victim as alleged in the notice. At the conclusion of
the hearing, or upon such a stipulation or admission, as applicable,
the court shall make a specific written determination with respect to
such allegation.

Section two amends Criminal procedure law by adding a new section
380.97 to provide that upon judgment of conviction of assault or
attempted assault in the third degree, menacing or attempted menacing
in the second degree, criminal obstruction of breathing or blood
circulation or attempted criminal obstruction of breathing or blood


circulation, forcible touching or attempted forcible touching, and
the defendant has been determined to be related or situated to the
victim of the offense in the manner specified in 18 U.S.C. 921
(a)(33)(A)(ii), the clerk of the court shall include notification and
a copy of the written determination in any report of such conviction
to the division of criminal justice services to enable the division
to report such determination to the federal bureau of investigation
and assist the bureau to identify persons prohibited from purchasing
and possessing a firearm pursuant to the provisions of 18 U.S.C. 922.

Section three provides the effective date.

JUSTIFICATION:

Keeping firearms out of the hands of individuals convicted of certain
violent misdemeanors is of great importance to the citizens of this
state. In Dutchess County alone there have been four recent instances
of deaths due to domestic violence in the past year. These tragic
events highlight the volatility of domestic violence cases and
require action to ensure that an already dangerous situation is not
compounded by allowing individuals convicted of certain misdemeanors
access to legal firearms. This bill closes a potential gap in the
reporting of crimes by our state to the federal government and
ensures that individuals convicted of certain misdemeanors are barred
from purchasing firearms legally.

Currently, a federal firearms licensee (FFL) may not sell or otherwise
dispose of a firearm to a person who has been convicted of a
misdemeanor crime of domestic violence (MCDV). The Criminal Justice
Information Services Division of the Federal Bureau of Investigation
(FBI) National Instant Criminal Background Check System (NICS)
determines firearm eligibility by conducting a background check,
which includes a check of automated databases. In cases where
additional information is needed, follow-up requests are made to
agencies such as the police, prosecutors or the courts; the NICS has
three business days to determine whether a proposed gun transfer is
prohibited. If the NICS has not been able to make a definitive
determination within three business days, the FFL may lawfully
transfer the firearm.

An MCDV is defined under federal law as an offense that: (i) is a
misdemeanor under federal, state or tribal law (ii) has as an element
the use or attempted use of physical force, or the threatened use of
a deadly weapon; and (iii) at the time the offense was committed, the
defendant was (A) a current or former spouse, parent, or guardian of
the victim; (B) a person with whom the victim shares a child in
common; (C) a person who is cohabiting with or has cohabitated with
the victim as a spouse, parent, or guardian; or (D) a person who was
or is similarly situated to a spouse, parent, or guardian of the
victim.

Two critical pieces of information that would enable the FBI to
determine whether a person has been convicted of an MCDV under
federal law and therefore disqualified from purchasing a firearm are
not provided by the State to the FBI.


This bill will provide the mechanism by which the two critical pieces
of information may be transmitted by the State to the FBI. The bill
identifies specific misdemeanor offenses that have the requisite
element of the use of or attempted use of physical force or the
threatened use of a deadly weapon and therefore satisfy one of the
criteria under federal law to constitute an MCDV.
In the case of those offenses, the bill provides the people with the
ability to determine at trial the relationship of the defendant to
the victim as described and therefore satisfy the second of the
criteria required under federal law to constitute an MCDV. If the
relationship as described is determined as provided in the bill, such
relationship will be noted on the defendant's record, which record is
transmitted by DCJS to the FBI for purposes of NICS.

With this critical information in the NICS, if a defendant has been
convicted of an MCDV, the NICS can deny the firearm application
without further research, resulting in greater efficiencies in
conducting background checks and less delay in making determinations
as to the eligibility to acquire a firearm, better ensuring that an
individual who is prohibited under federal law from acquiring a
firearm does not acquire the firearm. By failing to transmit this
critical information, we run the risk that individuals who are
prohibited from buying a gun nevertheless can because we did not give
the FBI the necessary information that requires us to keep the guns
out of their hands.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

FISCAL IMPLICATION:
None.

EFFECTIVE DATE:
This act shall take effect on the one hundred and twentieth day
after it shall become a law.

                                BILL NUMBER:S4244C

TITLE OF BILL:
An act
to amend the criminal procedure law, in relation to certain domestic
violence offenses

PURPOSE OR GENERAL IDEA OF BILL:
To ensure that pertinent information regarding misdemeanor crimes of
domestic violence is transmitted to the federal bureau of
investigation for purposes of determining whether a person is
disqualified from purchasing a firearm under federal law based upon
conviction for certain misdemeanor crimes of domestic violence

SUMMARY OF SPECIFIC PROVISIONS:
Section one amends criminal procedure law by adding a new section
370.15 to provide that when a defendant has been charged with assault
or attempted assault in the third degree, menacing or attempted
menacing in the second degree, criminal obstruction of breathing or
blood circulation or attempted criminal obstruction of breathing or
blood circulation, forcible touching or attempted forcible touching,
the people may, at arraignment or no later than 45 days after
arraignment, for the purpose of notifying the division of criminal
justice services as described in section two below, serve upon the
defendant and file with the court a notice alleging that the
defendant is related or situated to the victim of the crime in the
              

manner specified in 18 U.S.c. 921(a)(33)(A)(ii). The notice must
include the name of the person alleged to be the victim of the
offense and specify the nature of the alleged relationship as set
forth in 18 U.S.C.
921(a)(33)(A)(ii). Upon conviction to such offense, the court must
advise the defendant that he or she is entitled to a hearing on the
allegation contained in the notice and, if necessary, an adjournment
of the sentencing
proceeding in order to prepare for such hearing, and that if such
allegation is sustained, that determination and conviction will be
reported to the division of criminal justice services. The section
further provides that a defendant may stipulate or admit orally on
the record or in writing that he or she is related or situated to the
victim as described in this section, in which case the relationship
shall be deemed established for the purpose set forth in section two
below.
If the defendant denies such relationship to the victim as alleged in
the notice served by the people, the people shall have the burden of
proving beyond a reasonable doubt that the defendant is related or
situated to the victim as alleged in the notice. At the conclusion of
the hearing, or upon such a stipulation or admission, as applicable,
the court shall make a specific written determination with respect to
such allegation.

Section two amends Criminal procedure law by adding a new section
380.97 to provide that upon judgment of conviction of assault or
attempted assault in the third degree, menacing or attempted menacing
in the second degree, criminal obstruction of breathing or blood
circulation or attempted criminal obstruction of breathing or blood
circulation, forcible touching or attempted forcible touching, and


the defendant has been determined to be related or situated to the
victim of the offense in the manner specified in 18 U.S.C. 92 I
(a)(33)(A)(ii), the clerk of the court shall include notification and
a copy of the written determination in any report of such conviction
to the division of criminal justice services to enable the division
to report such determination to the federal bureau of investigation
and assist the bureau to identify persons prohibited from purchasing
and possessing a firearm pursuant to the provisions of 18 U.S.c. 922.

Section three provides the effective date.

JUSTIFICATION:
Keeping firearms out of the hands of individuals convicted of certain
violent misdemeanors is of great importance to the citizens of this
state. In Dutchess County alone there have been four recent instances
of deaths due to domestic violence in the past year. These tragic
events highlight the volatility of domestic violence cases and
require action to ensure that an already dangerous situation is not
compounded by allowing individuals convicted of certain misdemeanors
access to legal firearms. This bill closes a potential gap in the
reporting of crimes by our state to the federal government and
ensures that individuals convicted of certain misdemeanors are barred
from purchasing firearms legally.

Currently, a federal firearms licensee (FFL) may not sell or otherwise
dispose of a firearm to a person who has been convicted of a
misdemeanor crime of domestic violence (MCDV). The Criminal Justice
Information Services Division of the Federal Bureau of Investigation
(FBI) National Instant Criminal Background Check System (NICS)
determines firearm eligibility by conducting a background check,
which includes a check of automated databases. In cases where
additional information is needed, follow-up requests are made to
agencies such as the police, prosecutors or the courts; the NICS has
three business days to determine whether a proposed gun transfer is
prohibited. If the NICS has not been able to make a definitive
determination within three business days, the FFL may lawfully
transfer the firearm.

An MCDV is defined under federal law as an offense that: (i) is a
misdemeanor under federal, state or tribal law (ii) has as an element
the use or attempted use of physical force, or the threatened use of
a deadly weapon; and (iii) at the time the offense was committed, the
defendant was (A) a current or former spouse, parent, or guardian of
the victim; (B) a person with whom the victim shares a child in
common; (C) a person who is cohabiting with or has cohabitated with
the victim as a spouse, parent, or guardian; or (D) a person who was
or is similarly situated to a spouse, parent, or guardian of the
victim.

Two critical pieces of information that would enable the FBI to
determine whether a person has been convicted of an MCDV under
federal law and therefore disqualified from purchasing a firearm are
not provided by the State to the FBI.

This bill will provide the mechanism by which the two critical pieces
of information may be transmitted by the State to the FBI. The bill
identifies specific misdemeanor offenses that have the requisite


element of the use of or attempted use of physical force or the
threatened use of a deadly weapon and therefore satisfy one of the
criteria under federal law to constitute an MCDV.
In the case of those offenses, the bill provides the people with the
ability to determine the relationship of the defendant to the victim
as described and therefore satisfy the second of the criteria
required under federal law to constitute an MCDV. If the relationship
as described is determined as provided in the bill, such relationship
will be noted on the defendant's record, which record is transmitted
by DCJS to the FBI for purposes of NICS.

With this critical information in the NICS, if a defendant has been
convicted of an MCDV, the NICS can deny the firearm application
without further research, resulting in greater efficiencies in
conducting background checks and less delay in making determinations
as to the eligibility to acquire a firearm, better ensuring that an
individual who is prohibited under federal law from acquiring a
firearm does not acquire the firearm. By failing to transmit this
critical information, we run the risk that individuals who are
prohibited from buying a gun nevertheless can because we did not give
the FBI the necessary information that requires us to keep the guns
out of their hands.

PRIOR LEGISLATIVE HISTORY:
This is a new bill.

FISCAL IMPLICATION:
None.

EFFECTIVE DATE:
This act shall take effect on the one hundred twentieth day after it
shall have become a law.