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This entry was published on 2021-04-23
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SECTION 140.10
Arrest without a warrant; by police officer; when and where authorized
Criminal Procedure (CPL) CHAPTER 11-A, PART 2, TITLE H, ARTICLE 140
§ 140.10 Arrest without a warrant; by police officer; when and where

authorized.

1. Subject to the provisions of subdivision two, a police officer may
arrest a person for:

(a) Any offense when he or she has reasonable cause to believe that
such person has committed such offense in his or her presence; and

(b) A crime when he or she has reasonable cause to believe that such
person has committed such crime, whether in his or her presence or
otherwise.

2. A police officer may arrest a person for a petty offense, pursuant
to subdivision one, only when:

(a) Such offense was committed or believed by him or her to have been
committed within the geographical area of such police officer's
employment or within one hundred yards of such geographical area; and

(b) Such arrest is made in the county in which such offense was
committed or believed to have been committed or in an adjoining county;
except that the police officer may follow such person in continuous
close pursuit, commencing either in the county in which the offense was
or is believed to have been committed or in an adjoining county, in and
through any county of the state, and may arrest him or her in any county
in which he or she apprehends him or her.

3. A police officer may arrest a person for a crime, pursuant to
subdivision one, whether or not such crime was committed within the
geographical area of such police officer's employment, and he or she may
make such arrest within the state, regardless of the situs of the
commission of the crime. In addition, he or she may, if necessary,
pursue such person outside the state and may arrest him or her in any
state the laws of which contain provisions equivalent to those of
section 140.55.

* 4. Notwithstanding any other provisions of this section, a police
officer shall arrest a person, and shall not attempt to reconcile the
parties or mediate, where such officer has reasonable cause to believe
that:

(a) a felony, other than subdivision three, four, nine or ten of
section 155.30 of the penal law, has been committed by such person
against a member of the same family or household, as member of the same
family or household is defined in subdivision one of section 530.11 of
this chapter; or

(b) a duly served order of protection or special order of conditions
issued pursuant to subparagraph (i) or (ii) of paragraph (o) of
subdivision one of section 330.20 of this chapter is in effect, or an
order of which the respondent or defendant has actual knowledge because
he or she was present in court when such order was issued, where the
order appears to have been issued by a court of competent jurisdiction
of this or another state, territorial or tribal jurisdiction; and

(i) Such order directs that the respondent or defendant stay away from
persons on whose behalf the order of protection or special order of
conditions has been issued and the respondent or defendant committed an
act or acts in violation of such "stay away" provision of such order; or

(ii) The respondent or defendant commits a family offense as defined
in subdivision one of section eight hundred twelve of the family court
act or subdivision one of section 530.11 of this chapter in violation of
such order of protection or special order of conditions.

The provisions of this subdivision shall apply only to orders of
protection issued pursuant to sections two hundred forty and two hundred
fifty-two of the domestic relations law, articles four, five, six and
eight of the family court act and section 530.12 of this chapter,
special orders of conditions issued pursuant to subparagraph (i) or (ii)
of paragraph (o) of subdivision one of section 330.20 of this chapter
insofar as they involve a victim or victims of domestic violence as
defined by subdivision one of section four hundred fifty-nine-a of the
social services law or a designated witness or witnesses to such
domestic violence, and to orders of protection issued by courts of
competent jurisdiction in another state, territorial or tribal
jurisdiction. In determining whether reasonable cause exists to make an
arrest for a violation of an order issued by a court of another state,
territorial or tribal jurisdiction, the officer shall consider, among
other factors, whether the order, if available, appears to be valid on
its face or whether a record of the order exists on the statewide
registry of orders of protection and warrants established pursuant to
section two hundred twenty-one-a of the executive law or the protection
order file maintained by the national crime information center;
provided, however, that entry of the order of protection or special
order of conditions into the statewide registry or the national
protection order file shall not be required for enforcement of the
order. When a special order of conditions is in effect and a defendant
or respondent has been taken into custody pursuant to this paragraph,
nothing contained in this paragraph shall restrict or impair a police
officer from acting pursuant to section 9.41 of the mental hygiene law;
or

(c) a misdemeanor constituting a family offense, as described in
subdivision one of section 530.11 of this chapter and section eight
hundred twelve of the family court act, has been committed by such
person against such family or household member, unless the victim
requests otherwise. The officer shall neither inquire as to whether the
victim seeks an arrest of such person nor threaten the arrest of any
person for the purpose of discouraging requests for police intervention.
Notwithstanding the foregoing, when an officer has reasonable cause to
believe that more than one family or household member has committed such
a misdemeanor, the officer is not required to arrest each such person.
In such circumstances, the officer shall attempt to identify and arrest
the primary physical aggressor after considering: (i) the comparative
extent of any injuries inflicted by and between the parties; (ii)
whether any such person is threatening or has threatened future harm
against another party or another family or household member; (iii)
whether any such person has a prior history of domestic violence that
the officer can reasonably ascertain; and (iv) whether any such person
acted defensively to protect himself or herself from injury. The officer
shall evaluate each complaint separately to determine who is the primary
physical aggressor and shall not base the decision to arrest or not to
arrest on the willingness of a person to testify or otherwise
participate in a judicial proceeding.

The protected party in whose favor the order of protection or
temporary order of protection is issued may not be held to violate an
order issued in his or her favor nor may such protected party be
arrested for violating such order.

Nothing contained in this subdivision shall be deemed to (a) require
the arrest of any person when the officer reasonably believes the
person's conduct is justifiable under article thirty-five of title C of
the penal law; or (b) restrict or impair the authority of any
municipality, political subdivision, or the division of state police
from promulgating rules, regulations and policies requiring the arrest
of persons in additional circumstances where domestic violence has
allegedly occurred.

No cause of action for damages shall arise in favor of any person by
reason of any arrest made by a police officer pursuant to this
subdivision, except as provided in sections seventeen and eighteen of
the public officers law and sections fifty-k, fifty-l, fifty-m and
fifty-n of the general municipal law, as appropriate.

* NB Repealed September 1, 2023

5. Upon investigating a report of a crime or offense between members
of the same family or household as such terms are defined in section
530.11 of this chapter and section eight hundred twelve of the family
court act, a law enforcement officer shall prepare, file, and translate,
in accordance with section two hundred fourteen-b or eight hundred forty
of the executive law, a written report of the incident, on a form
promulgated pursuant to section eight hundred thirty-seven of the
executive law, including statements made by the victim and by any
witnesses, and make any additional reports required by local law
enforcement policy or regulations. Such report shall be prepared and
filed, whether or not an arrest is made as a result of the officers'
investigation, and shall be retained by the law enforcement agency for a
period of not less than four years. Where the reported incident involved
an offense committed against a person who is sixty-five years of age or
older a copy of the report required by this subdivision shall be sent to
the New York state committee for the coordination of police services to
elderly persons established pursuant to section eight hundred
forty-four-b of the executive law. Where the reported incident involved
an offense committed by an individual known by the law enforcement
officer to be under probation or parole supervision, he or she shall
transmit a copy of the report as soon as practicable to the supervising
probation department or the department of corrections and community
supervision.

6. (a) A police officer who responds to a report of a family offense
as defined in section 530.11 of this chapter and section eight hundred
twelve of the family court act may take temporary custody of any
firearm, rifle, electronic dart gun, electronic stun gun, disguised gun,
imitation weapon, shotgun, antique firearm, black powder rifle, black
powder shotgun, or muzzle-loading firearm that is in plain sight or is
discovered pursuant to a consensual or other lawful search, and shall
take temporary custody of any such weapon that is in the possession of
any person arrested for the commission of such family offense or
suspected of its commission. An officer who takes custody of any weapon
pursuant to this paragraph shall also take custody of any license to
carry, possess, repair, and dispose of such weapon issued to the person
arrested or suspected of such family offense. The officer shall deliver
such weapon and/or license to the appropriate law enforcement officer as
provided in subparagraph (f) of paragraph one of subdivision a of
section 265.20 of the penal law.

(b) Upon taking custody of weapons or a license described in paragraph
(a) of this subdivision, the responding officer shall give the owner or
person in possession of such weapons or license a receipt describing
such weapons and/or license and indicating any identification or serial
number on such weapons. Such receipt shall indicate where the weapons
and/or license can be recovered and describe the process for recovery
provided in paragraph (e) of this subdivision.

(c) Not less than forty-eight hours after effecting such seizure, and
in the absence of (i) an order of protection, an extreme risk protection
order, or other court order prohibiting the owner from possessing such a
weapon and/or license, or (ii) a pending criminal charge or conviction
which prohibits such owner from possessing such a weapon and/or license,
and upon a written finding that there is no legal impediment to the
owner's possession of such a weapon and/or license, the court or, if no
court is involved, licensing authority or custodian of the weapon shall
direct return of a weapon not otherwise disposed of in accordance with
subdivision one of section 400.05 of the penal law and/or such license
taken into custody pursuant to this section.

(d) If any other person demonstrates that such person is the lawful
owner of any weapon taken into custody pursuant to this section, and
provided that the court or, if no court is involved, licensing authority
or custodian of the weapon has made a written finding that there is no
legal impediment to the person's possession of such a weapon, such
court, licensing authority or custodian of the weapon, as the case may
be, shall direct that such weapon be returned to such lawful owner.

(e) All weapons in the possession of a law enforcement official
pursuant to this section shall be subject to the provisions of
applicable law, including but not limited to subdivision six of section
400.05 of the penal law; provided, however, that any such weapon shall
be retained and not disposed of by the law enforcement agency for at
least two years unless legally transferred by the owner to an individual
permitted by law to own and possess such weapon.