BILL NUMBER: S5577             REVISED MEMO 01/24/2018

SPONSOR: LANZA
 
TITLE OF BILL:  An act to amend the criminal procedure law, in
relation to procedures for the return of firearms voluntarily surren-
dered in connection with an order of protection

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Advisory
Committee on Criminal Law and Procedure.

This measure would amend section 530.14 of the Criminal Procedure Law to
provide a procedure for the return of firearms voluntarily surrendered
in connection with the issuance of an order of protection after the
order of protection has terminated. While a court has the authority to
order the surrender of weapons in connection with the issuance of an
order of protection (see CPL 530.14; FCA 842-a), there is no statute
authorizing a court to order law enforcement to restore the weapons
after the reason for the surrender has ended. Law enforcement officials
who were ordered by a court to take possession of the weapons are reluc-
tant to release the weapons back to the owner unless the owner presents
them with another court order authorizing the release. However, under
current law, the court that issued the order often has no jurisdiction
              

to order law enforcement to return any weapons surrendered. As a result,
the owner is compelled to resort to an Article 78 proceeding in Supreme
Court to compel release of the weapons (see Engel v Engel, 24 A.D.3d
548(2d Dept 2005); Aloi v Aloi, 10 A.D.3d 655 (2d Dept 2004)).

The issue is described in the Practice Commentary to the Family Court
Act dealing with surrender of weapons:

"... neither Section 842-a nor any other Article 8 section authorizes
the Court to order the return of firearms, and the Court consequently
lacks jurisdiction to entertain an application; see Blauman v.  Blauman,
2 A.D.3d 727, 769 N.Y.S.2d 584 (2d Dept. 2003). The dichotomy is illus-
trated in Aloi v. Nassau County Sheriff's Department, N.Y.L.J., 8/3/05,
p. 20 (Sup. Ct. Nassau Cty. 2005).  Family Court had initially issued a
temporary order of protection and a Section 842-a order, but both had
been withdrawn as part of a negotiated settlement. In the absence of
Family Court jurisdiction, the respondent's only recourse was a new
petition in Supreme Court (the Sheriff understandably refused to return
the firearms in the absence of a court order), thereby delaying the
lawful return of his property, increasing litigation costs and legal
fees, and placing an unnecessary burden on the Supreme Court. The appar-
ent jurisdictional oversight can be remedied only through legislation.

A similar analysis applies to surrender orders that originate in a local
criminal court under CPL 530.14. In contrast, Supreme Court orders of
protection may not have such a limitation since a Supreme Court justice
appears to have the authority to order return of weapons (see Dudek v
Nassau County Sheriff's Dept., 991.F.Supp.2d 402 (E.D.N.Y. 2013).

The current measure amends CPL 530(14) to provide a procedure for a
court of record* exercising criminal jurisdiction to order the return of
a voluntarily surrendered firearm after the reason for the surrender has
ended. Significantly, the measure provides notice and an opportunity to
be heard to the district attorney, the county attorney, the protected
party and any licensing officer responsible for issuance of a firearms
license to the subject of the order.  Moreover, to ensure that return of
firearms under the authority provided by this measure is not to be
required during ongoing license revocation proceedings, the order
providing for the return of a voluntarily surrendered firearm must be
stayed for the longer of ninety days or until the conclusion of any
license revocation proceeding. Notwithstanding this limitation, it is
not the purpose or the effect of this measure to inspire or initiate the
bringing of such revocation proceedings.

This measure, which would have no fiscal impact on the State, would take
effect ninety days after it shall have become a law.

 
LEGISLATIVE HISTORY:

2017: S.5577 - Died on Third Reading Calendar


* Courts of record include all courts of the Unified Court System except
for the Town and Village Justice Courts. Judiciary Law § 2.