Senate Bill S5963

                                 BILL NUMBER:  S5963

 TITLE OF BILL :

An act to amend the criminal procedure law, in relation to orders to
surrender eligible weapons

 PURPOSE :

To require the immediate surrender of any firearms, rifles, shotguns,
black powder rifles, black powder shotguns, muzzle-loading firearms
and antique firearms that are owned or possessed by a person upon his
or her conviction of offenses determined to be misdemeanor crimes of
domestic violence.

 SUMMARY OF PROVISIONS :

Section 1 amends section 370.15 of the criminal procedure law by
adding three new subdivisions 4, 5 and 6. Subdivision 4 requires the
court to order the immediate surrender of any firearms, rifles,
shotguns, black powder rifles, black powder shotguns, muzzle-loading
firearms and antique firearms owned or possessed upon judgment of
conviction and determination of the defendant to be related or
situated to the victim as set forth in this section 370.15. The
subdivision requires the court to require the respondent to inform the
court of all firearms, rifles, shotguns, black powder rifles, black
              

powder shotguns, muzzle-loading firearms and antique firearms he or
she owns or possesses.

Subdivision 5 provides that the court ordering the surrender of any
firearm, rifle, shotgun, black powder rifle, black powder shotgun,
muzzle-loading firearm or antique firearm as provided in this section
shall immediately notify the duly constituted police authorities of
the locality of such action and the division of state police at its
office in Albany. The court shall direct the authority receiving such
surrendered firearms, rifles, shotguns, black powder rifles, black
powder shotguns, muzzle-loading firearms or antique firearms to
immediately notify the court of such surrender.

Subdivision 6 provides that the disposition of any firearms, rifles,
shotguns, black powder rifles, black powder shotguns, muzzle-loading
firearms or antique firearms surrendered pursuant to this section
shall be in accordance with section 400.05(6) of the Penal Law.
Subdivision 6 further provides that the provisions of this section
shall not be deemed to limit, restrict or otherwise impair the
authority of the court to order and direct the surrender of any or all
firearms, rifles, shotguns, black powder rifles, black powder
shotguns, muzzle-loading firearms or antique firearms owned or
possessed by a defendant pursuant to any other provision of law.

Section 2 sets forth the effective date.

 JUSTIFICATION :

Intimate partner homicide is the most frequent type of domestic
homicide. In 2013, nearly one-quarter of the victims in all homicides
in the state had a domestic relationship with their offenders.
October 2014 Criminal Justice Research Report, "Domestic Homicide in
New York State 2013," Division of Criminal Justice Services Office of
Justice Research & Performance (2014 DCJS Report). More than half of
these domestic homicides were committed by intimate partners (13.5%,
with 8.91 committed by other family members).

The 2014 DCJS Report also found that statewide, intimate partner
homicides and total domestic homicides have increased 16% and 5.1%,
respectively, from 2012 to 2013. Outside of New York City, there were
49 intimate partner homicides -- the highest in 5 years (56.3% of a
total of 87 intimate partner homicides), with 38 in New York City.
Similarly, of the 144 total domestic homicides in 2013, 83 (57.6%)
occurred outside New York City -- the highest in 5 years -- and 61 in
New York City.

Women continue to account for most of all intimate partner homicides
in New York (78.2% in 2013). Of the 130 total homicide victims who
were female, age 16 and older, 51.5% were killed by intimate partners.
2014 DCJS Report. In addition, eleven domestic homicide incidents
reported in 2013 involved multiple victims, a total of 26, including
seven children.

Firearms, which include handguns, rifles, shotguns and other firearms,
are the weapons used in one-third of intimate partner homicides, with
firearms used in 18.4% of intimate partner homicides in New York City
and in 42.9% of intimate partner homicides in the rest of the state.
2014 DCJS Report. Domestic violence often escalates in severity over
time and the presence of a firearm increases the likelihood that it
will escalate to a homicide. "When a gun was in the house, an abused
woman was 6 times more likely than other abused women to be killed."
See U.S. v. Castleman, 572 U.S. (2014), citing Campbell et al.,
Assessing Risk Factors for Intimate Partner Homicide, DOJ, Nat.
Institute of Justice J., No. 250, p. 16 (Nov. 2003).

In recognition of this stark reality, Congress prohibited, in addition
to felons, those individuals convicted of misdemeanor crimes of
domestic violence from possessing firearms. 18 U.S.C. § 922(g)(9). We
were recently reminded by the Supreme Court that Congress recognized
20 years ago the need to "close (a) dangerous loophole" when it
enacted 18 U.S.C. § 922(g) (9). (See Voisine v. U.S. 579 U.S. (2016),
citing Castleman, quoting U.S. v. Hayes, 555 U.S. 415,426 (2009).)
Although an existing provision at the time already prohibited
convicted felons from possessing firearms, domestic violence abusers
charged with "run-of-the-mill misdemeanor assault and battery laws"
were not barred from possessing guns. In affirming that the federal
ban on firearms possession applies to misdemeanor assault convictions
for reckless conduct, the Court in Voisine reiterated its view that
'(firearms and domestic strife are a potentially deadly combination'.
(See Voisine, quoting Hayes.)

A dangerous loophole similarly exists under New York law. Currently,
when a person is convicted of a felony or serious offense or an order
of protection is issued for victims of family offenses in certain
circumstances, the court must revoke any existing license of that
person to possess a firearm and order the immediate surrender of any
firearms that person owns or possesses. The law does not, however,
provide for the surrender of these dangerous weapons that a person
owns or possesses upon conviction of a misdemeanor crime of domestic
violence even though upon such a conviction, the person would be
prohibited under federal law from purchasing or possessing a firearm.
To provide that when a person is convicted of a misdemeanor crime of
domestic violence he cannot buy or possess a firearm under federal
law, but if he already owns firearms and is convicted of a misdemeanor
crime of domestic violence he can keep the firearms he owns is a
gaping hole in the law that must be closed.

Firearms, rifles, shotguns, antique firearms, black powder rifles,
black powder shotguns and muzzle-loading firearms clearly have the
ability to inflict or threaten serious injury or cause death. They
should be removed from the abuser's possession upon conviction of a
misdemeanor crime of domestic violence.

By requiring the surrender of firearms, rifles, shotguns, antique
firearms, black powder rifles, black powder shotguns and
muzzle-loading firearms of those persons who have been convicted of a
misdemeanor crime of domestic violence, we will be better able to
protect the safety and welfare of domestic violence victims who we
know are at risk of harm at the hands of their abusers.

 LEGISLATIVE HISTORY :

2017-18: A980 passed assembly - S
A.5257, 2015 and 2016 passed Assembly.
Similar to A.9515, 2014 referred to Codes.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
Effective immediately and shall apply to convictions on or after such
effective date as well as to charges for such offenses pending on such
effective date for which sentence had not yet been imposed.