YORK

STATE OF NEW

_______________________________________________________ _________________ 3948 2013-2014 Regular Sessions

IN SENATE
February 28, 2013 ___________ Introduced by Sens. MARCHIONE, BOYLE -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the family court act, in relation to the suspension and revocation of a license to carry firearms; to amend the domestic relations law, in relation to orders of protection; to amend the penal law, in relation to the applicability of certain provisions of the penal law, large capacity ammunition feeding devices, and gun licenses; to amend section 58 of chapter 1 of the laws of 2013 amending the criminal procedure law and other laws relating to suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm, in relation to the effectiveness thereof; and to repeal

article 39-DDD of the general business law relating to the private sale or disposal of firearms, rifles and shotguns, section 9.46 of the mental hygiene law relating to reports of substantial risk or threat of harm by mental health professionals, sections 37, 38, 46 and 51 of chapter 1 of the laws of 2013, amending the criminal procedure law and other laws relating to suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm relating to gun control, section 265.01-b of the penal law relating to criminal possession of a firearm, section 265.36 of the penal law relating to unlawful possession of a large capacity ammunition feeding device, 265.37 of the penal law relating to unlawful possession of certain ammunition feeding devices, 265.45 of the penal law relating to the safe storage of rifles, shotguns, and firearms, 400.02 of the penal law relating to the statewide license and record database and 400.03 of the penal law relating to sellers of ammunition, and section 2509 of the surrogate's court procedure act relating to a firearms inventory The People of the State of New York, represented in Senate and Assembly, do enact as follows: EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD09316-03-3

S. 3948

1 Section 1. Section 446-a of the family court act, as added by chapter 2 1 of the laws of 2013, is amended to read as follows: 3 446-a. Firearms; surrender and license suspension, revocation and 4 ineligibility. Upon the issuance of an order of protection or temporary 5 order of protection, or upon a violation of such order, the court shall 6 make a determination regarding the suspension [and] and/or revocation of 7 a 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 eight hundred fortytwo-a of this act. 10 2. Section 552 of the family court act, as added by chapter 1 of the 11 laws of 2013, is amended to read as follows: 12 552. Firearms; surrender and license suspension, revocation and 13 ineligibility. Upon the issuance of an order of protection or temporary 14 order of protection, or upon a violation of such order, the court shall 15 make a determination regarding the suspension [and] and/or revocation of 16 a license to carry, possess, repair or dispose of a firearm or firearms, 17 ineligibility for such a license and the surrender of firearms in 18 accordance with section eight hundred fortytwo-a of this act. 19 3. Section 656-a of the family court act, as added by chapter 1 of 20 the laws of 2013, is amended to read as follows: 21 656-a. Firearms; surrender and license

suspension, revocation and 22 ineligibility. Upon the issuance of an order of protection or temporary 23 order of protection, or upon a violation of such order, the court shall 24 make a determination regarding the suspension [and] and/or revocation of 25 a license to carry, possess, repair or dispose of a firearm or firearms, 26 ineligibility for such a license and the surrender of firearms in 27 accordance with section eight hundred fortytwo-a of this act. 28 4. Section 780-a of the family court act, as added by chapter 1 of 29 the laws of 2013, is amended to read as follows: 30 780-a. Firearms; surrender and license suspension, revocation and 31 ineligibility. Upon the issuance of an order of protection or temporary 32 order of protection, or upon a violation of such order, the court shall 33 make a determination regarding the suspension [and] and/or revocation of 34 a license to carry, possess, repair or dispose of a firearm or firearms, 35 ineligibility for such a license and the surrender of firearms in 36 accordance with section eight hundred fortytwo-a of this act. 37 5. Paragraph h of subdivision 3 of section 240 of the domestic 38 relations law, as amended by chapter 1 of the laws of 2013, is amended 39 to read as follows: 40 h. Upon issuance of an order of protection or temporary order of 41 protection or upon a violation of such order, the court shall make a 42 determination regarding the suspension [and] and/or revocation of a 43 license to carry, possess, repair or dispose of a firearm or firearms, 44 ineligibility for such a license and the

surrender of firearms in 45 accordance with sections eight hundred fortytwo-a and eight hundred 46 forty-six-a of the family court act, as applicable. Upon issuance of an 47 order of protection pursuant to this section or upon a finding of a 48 violation thereof, the court also may direct payment of restitution in 49 an amount not to exceed ten thousand dollars in accordance with subdivi50 sion (e) of section eight hundred forty-one of such act; provided, 51 however, that in no case shall an order of restitution be issued where 52 the court determines that the party against whom the order would be 53 issued has already compensated the injured party or where such compen54 sation is incorporated in a final judgment or settlement of the action. 55 6. Subdivision 9 of section 252 of the domestic relations law, as 56 amended by chapter 1 of the laws of 2013, is amended to read as follows:

S. 3948

1 9. Upon issuance of an order of protection or temporary order of 2 protection or upon a violation of such order, the court shall make a 3 determination regarding the suspension [and] and/or revocation of a 4 license to carry, possess, repair or dispose of a firearm or firearms, 5 ineligibility for such a license and the surrender of firearms in 6 accordance with sections eight hundred fortytwo-a and eight hundred 7 forty-six-a of the family court act, as applicable. Upon issuance of an 8 order of protection pursuant to this section or

upon

finding of a 9 violation thereof, the court also may direct payment of restitution in 10 an amount not to exceed ten thousand dollars in accordance with subdivi11 sion (e) of section eight hundred forty-one of such act; provided, 12 however, that in no case shall an order of restitution be issued where 13 the court determines that the party against whom the order would be 14 issued has already compensated the injured party or where such compen15 sation is incorporated in a final judgment or settlement of the action. 16 7. Article 39-DDD of the general business law is REPEALED. 17 8. Section 9.46 of the mental hygiene law is REPEALED. 18 9. Sections 37, 38, 46 and 51 of chapter 1 of the laws of 2013, 19 amending the criminal procedure law and other laws relating to suspen20 sion and revocation of firearms licenses; private sale or disposal of 21 firearms, rifles or shotguns and establishing a minimum age to possess a 22 firearm are REPEALED. 23 10. The opening paragraph of subdivision a of section 265.20 of the 24 penal law, as amended by chapter 496 of the laws of 1991, is amended to 25 read as follows: 26 Sections 265.01, 265.01-a, 265.02, 265.03, 265.04, 265.05, 265.10, 27 265.11, 265.12, 265.13, 265.15 and 270.05 shall not apply to: 28 11. Sections 265.01-b, 265.36, 265.37, 265.45, 400.02 and 400.03 of 29 the penal law are REPEALED. 30 12. Subdivision 8 of section 265.02 of the penal law, as amended by 31 chapter 1 of the laws of 2013, is amended to read as follows: 32 (8) Such person possesses a large capacity

ammunition feeding device[. 33 For purposes of this subdivision, a large capacity ammunition feeding 34 device shall not include an ammunition feeding device lawfully possessed 35 by such person before the effective date of the chapter of the laws of 36 two thousand thirteen which amended this subdivision, that has a capaci37 ty of, or that can be readily restored or converted to accept more than 38 seven but less than eleven rounds of ammunition, or that was manufac39 tured before September thirteenth, nineteen hundred ninety-four, that 40 has a capacity of, or that can be readily restored or converted to 41 accept, more than ten rounds of ammunition]; or 42 13. Subdivisions 5, 10, 12, 16-a and 16-b of section 400.00 of the 43 penal law, subdivisions 5, 10 and 12 as amended and subdivisions 16-a 44 and 16-b as added by chapter 1 of the laws of 2013, are amended to read 45 as follows: 46 5. Filing of approved applications. [(a)] The application for any 47 license, if granted, shall be filed by the licensing officer with the 48 clerk of the county of issuance, except that in the city of New York 49 and, in the counties of Nassau and Suffolk, the licensing officer shall 50 designate the place of filing in the appropriate division, bureau or 51 unit of the police department thereof, and in the county of Suffolk the 52 county clerk is hereby authorized to transfer all records or applica53 tions relating to firearms to the licensing authority of that county. 54 [Except as provided in paragraphs (b) through (f) of this subdivision, 55 the] The name and address of any person to whom

an application for any 56 license has been granted shall not be a public record. Upon application

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1 by a licensee who has changed his place of residence such records or 2 applications shall be transferred to the appropriate officer at the 3 licensee's new place of residence. A duplicate copy of such application 4 shall be filed by the licensing officer in the executive department, 5 division of state police, Albany, within ten days after issuance of the 6 license. The superintendent of state police may designate that such 7 application shall be transmitted to the division of state police elec8 tronically. In the event the superintendent of the division of state 9 police determines that it lacks any of the records required to be filed 10 with the division, it may request that such records be provided to it by 11 the appropriate clerk, department or authority and such clerk, depart12 ment or authority shall provide the division with such records. In the 13 event such clerk, department or authority lacks such records, the divi14 sion may request the license holder provide information sufficient to 15 constitute such record and such license holder shall provide the divi16 sion with such information. Such information shall be limited to the 17 license holder's name, date of birth, gender,race, residential address, 18 social security number and firearms possessed by said license holder. 19 Nothing in this subdivision shall be construed

to change the expiration 20 date or term of such licenses if otherwise provided for in law. [Records 21 assembled or collected for purposes of inclusion in the database estab22 lished by this section shall be released pursuant to a court order. 23 Records assembled or collected for purposes of inclusion in the database 24 created pursuant to section 400.02 of this chapter shall not be subject 25 to disclosure pursuant to article six of the public officers law. 26 (b) Each application for a license pursuant to paragraph (a) of this 27 subdivision shall include, on a separate written form prepared by the 28 division of state police within thirty days of the effective date of the 29 chapter of the laws of two thousand thirteen, which amended this 30 section, and provided to the applicant at the same time and in the same 31 manner as the application for a license, an opportunity for the appli32 cant to request an exception from his or her application information 33 becoming public record pursuant to paragraph (a) of this subdivision. 34 Such forms, which shall also be made available to individuals who had 35 applied for or been granted a license prior to the effective date of the 36 chapter of the laws of two thousand thirteen which amended this section, 37 shall notify applicants that, upon discovery that an applicant knowingly 38 provided false information, such applicant may be subject to penalties 39 pursuant to section 175.30 of this chapter, and further, that his or her 40 request for an exception shall be null and void, provided that written 41 notice containing such determination is provided to the applicant. 42 Further, such forms shall provide each applicant an opportunity to spec-

43 ify the grounds on which he or she believes his or her application 44 information should not be publicly disclosed. These grounds, which shall 45 be identified on the application with a box beside each for checking, as 46 applicable, by the applicant, shall be as follows: 47 (i) the applicant's life or safety may be endangered by disclosure 48 because: 49 (A) the applicant is an active or retired police officer, peace offi50 cer, probation officer, parole officer, or corrections officer; 51 (B) the applicant is a protected person under a currently valid order 52 of protection; 53 (C) the applicant is or was a witness in a criminal proceeding involv54 ing a criminal charge;

S. 3948

1 (D) the applicant is participating or previously participated as a 2 juror in a criminal proceeding, or is or was a member of a grand jury; 3 or 4 (E) the applicant is a spouse, domestic partner or household member of 5 a person identified in this subparagraph or subparagraph (ii) of this 6 paragraph, specifying which subparagraph or subparagraphs and clauses 7 apply. 8 (ii) the applicant has reason to believe his or her life or safety may 9 be endangered by disclosure due to reasons stated by the applicant. 10 (iii) the applicant has reason to believe he or she may be subject to 11 unwarranted harassment upon disclosure of such information. 12 (c) Each form provided for recertification

pursuant to paragraph (b) 13 of subdivision ten of this section shall include an opportunity for the 14 applicant to request an exception from the information provided on such 15 form becoming public record pursuant to paragraph (a) of this subdivi16 sion. Such forms shall notify applicants that, upon discovery that an 17 applicant knowingly provided false information, such applicant may be 18 subject to penalties pursuant to section 175.30 of this chapter, and 19 further, that his or her request for an exception shall be null and 20 void, provided that written notice containing such determination is 21 provided to the applicant. Further, such forms shall provide each appli22 cant an opportunity to either decline to request the grant or continua23 tion of an exception, or specify the grounds on which he or she believes 24 his or her information should not be publicly disclosed. These grounds, 25 which shall be identified in the application with a box beside each for 26 checking, as applicable, by the applicant, shall be the same as provided 27 in paragraph (b) of this subdivision. 28 (d) Information submitted on the forms described in paragraph (b) of 29 this subdivision shall be excepted from disclosure and maintained by the 30 entity retaining such information separate and apart from all other 31 records. 32 (e) (i) Upon receiving a request for exception from disclosure, the 33 licensing officer shall grant such exception, unless the request is 34 determined to be null and void, pursuant to paragraph (b) or (c) of this 35 subdivision. 36 (ii) A request for an exception from disclosure may be submitted at 37 any time, including after a license or

recertification has been granted. 38 (iii) If an exception is sought and granted pursuant to paragraph (b) 39 of this subdivision, the application information shall not be public 40 record, unless the request is determined to be null and void. If an 41 exception is sought and granted pursuant to paragraph (c) of this subdi42 vision, the information concerning such recertification application 43 shall not be public record, unless the request is determined to be null 44 and void. 45 (f) The information of licensees or applicants for a license shall not 46 be disclosed to the public during the first one hundred twenty days 47 following the effective date of the chapter of the laws of two thousand 48 thirteen, which amended this section. After such period, the information 49 of those who had applied for or been granted a license prior to the 50 preparation of the form for requesting an exception, pursuant to para51 graph (b) of this subdivision, may be released only if such individuals 52 did not file a request for such an exception during the first sixty days 53 following such preparation; provided, however, that no information 54 contained in an application for licensure or recertification shall be 55 disclosed by an entity that has not completed processing any such 56 requests received during such sixty days.

S. 3948

1 (g) If a request for an exception is determined to be null and void 2 pursuant to paragraph (b) or (c) of this subdivision, an applicant may 3 request review of such determination pursuant

to

article seventy-eight 4 of the civil practice laws and rules. Such proceeding must commence 5 within thirty days after service of the written notice containing the 6 adverse determination. Notice of the right to commence such a petition, 7 and the time period therefor, shall be included in the notice of the 8 determination. Disclosure following such a petition shall not be made 9 prior to the disposition of such review.] 10 10. License: expiration, certification and renewal. [(a)] Any license 11 for gunsmith or dealer in firearms and, in the city of New York, any 12 license to carry or possess a pistol or revolver, issued at any time 13 pursuant to this section or prior to the first day of July, nineteen 14 hundred sixty-three and not limited to expire on an earlier date fixed 15 in the license, shall expire not more than three years after the date of 16 issuance. In the counties of Nassau, Suffolk and Westchester, any 17 license to carry or possess a pistol or revolver, issued at any time 18 pursuant to this section or prior to the first day of July, nineteen 19 hundred sixty-three and not limited to expire on an earlier date fixed 20 in the license, shall expire not more than five years after the date of 21 issuance; however, in the county of Westchester, any such license shall 22 be certified prior to the first day of April, two thousand, in accord23 ance with a schedule to be contained in regulations promulgated by the 24 commissioner of the division of criminal justice services, and every 25 such license shall be recertified every five years thereafter. For 26 purposes of this section certification shall

mean

that the licensee 27 shall provide to the licensing officer the following information only: 28 current name, date of birth, current address, and the make, model, cali29 ber and serial number of all firearms currently possessed. Such certif30 ication information shall be filed by the licensing officer in the same 31 manner as an amendment. Elsewhere than in the city of New York and the 32 counties of Nassau, Suffolk and Westchester, any license to carry or 33 possess a pistol or revolver, issued at any time pursuant to this 34 section or prior to the first day of July, nineteen hundred sixty-three 35 and not previously revoked or cancelled, shall be in force and effect 36 until revoked as herein provided. Any license not previously cancelled 37 or revoked shall remain in full force and effect for thirty days beyond 38 the stated expiration date on such license. Any application to renew a 39 license that has not previously expired, been revoked or cancelled shall 40 thereby extend the term of the license until disposition of the applica41 tion by the licensing officer. In the case of a license for gunsmith or 42 dealer in firearms, in counties having a population of less than two 43 hundred thousand inhabitants, photographs and fingerprints shall be 44 submitted on original applications and upon renewal thereafter only at 45 six year intervals. Upon satisfactory proof that a currently valid 46 original license has been despoiled, lost or otherwise removed from the 47 possession of the licensee and upon application containing an additional 48 photograph of the licensee, the licensing officer shall issue a dupli-

49 cate license. 50 [(b) All licensees shall be recertified to the division of state 51 police every five years thereafter. Any license issued before the effec52 tive date of the chapter of the laws of two thousand thirteen which 53 added this paragraph shall be recertified by the licensee on or before 54 January thirty-first, two thousand eighteen, and not less than one year 55 prior to such date, the state police shall send a notice to all license 56 holders who have not recertified by such time. Such recertification

S. 3948

1 shall be in a form as approved by the superintendent of state police, 2 which shall request the license holder's name, date of birth, gender, 3 race, residential address, social security number, firearms possessed by 4 such license holder, email address at the option of the license holder 5 and an affirmation that such license holder is not prohibited from 6 possessing firearms. The form may be in an electronic form if so desig7 nated by the superintendent of state police. Failure to recertify shall 8 act as a revocation of such license. If the New York state police 9 discover as a result of the recertification process that a licensee 10 failed to provide a change of address, the New York state police shall 11 not require the licensing officer to revoke such license.] 12 12. Records required of gunsmiths and dealers in firearms. Any person 13 licensed as gunsmith or dealer in firearms shall keep a record book 14 approved as to form, except in the city of New

York, by the superinten15 dent of state police. In the record book shall be entered at the time of 16 every transaction involving a firearm the date, name, age, occupation 17 and residence of any person from whom a firearm is received or to whom a 18 firearm is delivered, and the calibre, make, model, manufacturer's name 19 and serial number, or if none, any other distinguishing number or iden20 tification mark on such firearm. Before delivering a firearm to any 21 person, the licensee shall require him to produce either a license valid 22 under this section to carry or possess the same, or proof of lawful 23 authority as an exempt person pursuant to section 265.20. In addition, 24 before delivering a firearm to a peace officer, the licensee shall veri25 fy that person's status as a peace officer with the division of state 26 police. After completing the foregoing, the licensee shall remove and 27 retain the attached coupon and enter in the record book the date of such 28 license, number, if any, and name of the licensing officer, in the case 29 of the holder of a license to carry or possess, or the shield or other 30 number, if any, assignment and department, unit or agency, in the case 31 of an exempt person. The original transaction report shall be forwarded 32 to the division of state police within ten days of delivering a firearm 33 to any person, and a duplicate copy shall be kept by the licensee. The 34 superintendent of state police may designate that such record shall be 35 completed and transmitted in electronic form. A dealer may be granted a 36 waiver from transmitting such records in electronic form if the super-

37 intendent determines that such dealer is incapable of such transmission 38 due to technological limitations that are not reasonably within the 39 control of the dealer, or other exceptional circumstances demonstrated 40 by the dealer, pursuant to a process established in regulation, and at 41 the discretion of the superintendent. [Records assembled or collected 42 for purposes of inclusion in the database created pursuant to section 43 400.02 of this article shall not be subject to disclosure pursuant to 44 article six of the public officers law.] The record book shall be main45 tained on the premises mentioned and described in the license and shall 46 be open at all reasonable hours for inspection by any peace officer, 47 acting pursuant to his special duties, or police officer. In the event 48 of cancellation or revocation of the license for gunsmith or dealer in 49 firearms, or discontinuance of business by a licensee, such record book 50 shall be immediately surrendered to the licensing officer in the city of 51 New York, and in the counties of Nassau and Suffolk, and elsewhere in 52 the state to the executive department, division of state police. 53 16-a. [Registration. (a) An owner of a weapon defined in paragraph (e) 54 or (f) of subdivision twenty-two of section 265.00 of this chapter, 55 possessed before the date of the effective date of the chapter of the 56 laws of two thousand thirteen which added this paragraph, must make an

S. 3948 1 application to register such

8 weapon with

the superintendent of state 2 police, in the manner provided by the superintendent, or by amending a 3 license issued pursuant to this section within one year of the effective 4 date of this subdivision except any weapon defined under subparagraph 5 (vi) of paragraph (g) of subdivision twentytwo of section 265.00 of 6 this chapter transferred into the state may be registered at any time, 7 provided such weapons are registered within thirty days of their trans8 fer into the state. Registration information shall include the regis9 trant's name, date of birth, gender, race, residential address, social 10 security number and a description of each weapon being registered. A 11 registration of any weapon defined under subparagraph (vi) of paragraph 12 (g) of subdivision twenty-two of section 265.00 or a feeding device as 13 defined under subdivision twenty-three of section 265.00 of this chapter 14 shall be transferable, provided that the seller notifies the state 15 police within seventy-two hours of the transfer and the buyer provides 16 the state police with information sufficient to constitute a registra17 tion under this section. Such registration shall not be valid if such 18 registrant is prohibited or becomes prohibited from possessing a firearm 19 pursuant to state or federal law. The superintendent shall determine 20 whether such registrant is prohibited from possessing a firearm under 21 state or federal law. Such check shall be limited to determining whether 22 the factors in 18 USC 922 (g) apply or whether a registrant has been 23 convicted of a serious offense as defined in subdivision sixteen-b of 24 section 265.00 of this chapter, so as to prohibit such registrant from

25 possessing a firearm, and whether a report has been issued pursuant to 26 section 9.46 of the mental hygiene law. All registrants shall recertify 27 to the division of state police every five years thereafter. Failure to 28 recertify shall result in a revocation of such registration. 29 (b) The superintendent of state police shall create and maintain an 30 internet website to educate the public as to which semiautomatic rifle, 31 semiautomatic shotgun or semiautomatic pistol or weapon that are illegal 32 as a result of the enactment of the chapter of the laws of two thousand 33 thirteen which added this paragraph, as well as such assault weapons 34 which are illegal pursuant to article two hundred sixty-five of this 35 chapter. Such website shall contain information to assist the public in 36 recognizing the relevant features proscribed by such article two hundred 37 sixty-five, as well as which make and model of weapons that require 38 registration. 39 (c) A person who knowingly fails to apply to register such weapon, as 40 required by this section, within one year of the effective date of the 41 chapter of the laws of two thousand thirteen which added this paragraph 42 shall be guilty of a class A misdemeanor and such person who unknowingly 43 fails to validly register such weapon within such one year period shall 44 be given a warning by an appropriate law enforcement authority about 45 such failure and given thirty days in which to apply to register such 46 weapon or to surrender it. A failure to apply or surrender such weapon 47 within such thirty-day period shall result in such weapon being removed 48 by an appropriate law enforcement authority and declared a nuisance.

49 16-b.] The cost of the software, programming and interface required to 50 transmit any record that must be electronically transmitted by the deal51 er or licensing officer to the division of state police pursuant to this 52 chapter shall be borne by the state. 53 14. Section 2509 of the surrogate's court procedure act is REPEALED. 54 15. Section 58 of chapter 1 of the laws of 2013 amending the crimi55 nal procedure law and other laws relating to suspension and revocation 56 of firearms licenses; private sale or disposal of firearms, rifles or

S. 3948

1 shotguns and establishing a minimum age to possess a firearm, is amended 2 to read as follows: 3 58. This act shall take effect immediately; provided, however, that: 4 a. Sections one, two, three, four, five, [six, seven, eight, nine,] 5 ten, [eleven, twelve,] thirteen, fourteen, fifteen, sixteen, seventeen, 6 eighteen, nineteen, [twenty,] twenty-one, twenty-two, twenty-three, 7 twenty-four, twenty-five, twenty-six, twentysix-a, twenty-seven, twen8 ty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three, 9 thirty-four, thirty-five, thirty-six, thirtynine, forty, [forty-one, 10 forty-one-a, forty-one-b,] forty-two, fortythree, forty-five, [forty11 six, forty-six-a, forty-seven, fifty-one,] fifty-two, [fifty-three,] 12 fifty-four, fifty-five, and fifty-six of this act shall take effect on 13 the sixtieth day after it shall have become a law;

14 b. [The amendments to subdivision 23 of section 265.00 of the penal 15 law made by section thirty-eight of this act shall take effect on the 16 ninetieth day after this act shall have become a law, except that the 17 amendments made to paragraph (a) of subdivision 23 shall take effect 18 immediately; 19 c.] The amendments to subdivision 1, paragraph (a) of subdivision 3, 20 and subdivisions 4, 9, 10, 11, 12, 15, and 16-b of section 400.00 of the 21 penal law made by section forty-eight of this act shall take effect one 22 year after this act shall have become a law; 23 [d. The amendments to subdivision 16-a of section 400.00 of the penal 24 law made by section forty-eight of this act shall take effect on the 25 ninetieth day after this act shall have become a law; 26 e. The amendments to sections 400.02 and 400.03 of the penal law made 27 by sections forty-nine and fifty of this act shall take effect one year 28 after it shall have become a law;] and 29 [f.] c. The amendments to subdivision (b) of section 9.47 and sections 30 9.48 and 9.60 of the mental hygiene law made by sections twenty-one, 31 twenty-two and twenty-three of this act shall not affect the expiration 32 and repeal of such paragraph and sections and shall be deemed repealed 33 therewith. 34 16. Severability. If any clause, sentence, paragraph, section or 35 part of this act shall be adjudged by any court of competent jurisdic36 tion to be invalid and after exhaustion of all further judicial review, 37 the judgment shall not affect, impair or invalidate the remainder there38 of, but shall be confined in its operation to

the

clause, sentence, 39 paragraph, section or part of this act directly involved in the contro40 versy in which the judgment shall have been rendered. 41 17. This act shall take effect immediately; provided that: the 42 amendments to subdivisions 10, 12, 16-a and 16-b of section 400.00 of 43 the penal law made by section thirteen of this act shall take effect on 44 the same date and in the same manner as section 48 of chapter 1 of the 45 laws of 2013 takes effect.

S T A T E O R K

O F

N E W

_______________________________________________________ _________________ 3948 2013-2014 Regular Sessions I N S E N A T E

February 28, 2013 ___________

Introduced by Sens. MARCHIONE, BOYLE -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary AN ACT to amend the family court act, in relation to the suspension and revocation of a license to carry firearms; to amend the domestic

relations law, in relation to orders of protection; to amend the penal law, in relation to the applicability of certain provisions of the penal law, large capacity ammunition feeding devices, and gun licenses; to amend section 58 of chapter 1 of the laws of 2013 amending the criminal procedure law and other laws relating to suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm, in relation to the effectiveness thereof; and to repeal article 39-DDD of the general business law relating to the private sale or disposal of firearms, rifles and shotguns, section 9.46 of the mental hygiene law relating to reports of substantial risk 46 and 51 of chapter 1 of the laws of 2013, amending the criminal procedure law and other laws relating to suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm relating to gun control, section 265.01-b of the penal law relating to criminal or threat of harm by mental health professionals, sections 37, 38,

possession of a firearm, section 265.36 of the penal law relating to unlawful possession of a large capacity ammunition feeding device, 265.37 of the penal law relating to unlawful possession of certain ammunition feeding devices, 265.45 of the penal law relating to the safe storage of rifles, shotguns, and firearms, 400.02 of the penal law relating to the statewide license and record database and 400.03 of the penal law relating to sellers of ammunition, and section 2509 of the surrogate's court procedure act relating to a firearms inventory The People of the State of New York, represented in Senate and Assembly, do enact as follows: Section 1. Section 446-a of the family court act, as added by chapter 1 of the laws of 2013, is amended to read as follows: 446-a. Firearms; surrender and license suspension, revocation and ineligibility. Upon the issuance of an order of protection or temporary order of protection, or upon a violation of such order, the court shall make a determination regarding the suspension [and] and/or revocation of a license to carry, possess, repair or dispose of a firearm or firearms, ineligibility for such a license and the surrender of firearms in accordance with section eight hundred forty-two-a of this act. 2. Section 552 of the family court act, as added by chapter 1 of the laws of 2013, is amended to read as follows: 552. Firearms; surrender and license suspension, revocation and

ineligibility. Upon the issuance of an order of protection or temporary order of protection, or upon a violation of such order, the court shall make a determination regarding the suspension [and] and/or revocation of a license to carry, possess, repair or dispose of a firearm or firearms, ineligibility for such a license and the surrender of firearms in accordance with section eight hundred forty-two-a of this act. 3. Section 656-a of the family court act, as added by chapter 1 of the laws of 2013, is amended to read as follows: 656-a. Firearms; surrender and license suspension, revocation and ineligibility. Upon the issuance of an order of protection or temporary order of protection, or upon a violation of such order, the court shall make a determination regarding the suspension [and] and/or revocation of a license to carry, possess, repair or dispose of a firearm or firearms, ineligibility for such a license and the surrender of firearms in accordance with section eight hundred forty-two-a of this act. 4. Section 780-a of the family court act, as added by chapter 1 of the laws of 2013, is amended to read as follows: 780-a. Firearms; surrender and license suspension, revocation and ineligibility. Upon the issuance of an order of protection or temporary order of protection, or upon a violation of such order, the court shall make a determination regarding the suspension [and] and/or revocation of a license to carry, possess, repair or dispose of a firearm or firearms, ineligibility for such a license and the surrender of firearms in accordance with section eight hundred forty-two-a of this act. 5. Paragraph h of subdivision 3 of section 240 of the domestic relations law, as amended by chapter 1 of the laws of 2013, is amended to read as follows: h. Upon issuance of an order of protection or temporary order of protection or upon a violation of such order, the court shall make a determination regarding the suspension [and] and/or revocation of a license to carry, possess, repair or dispose of a firearm or firearms,

ineligibility for such a license and the surrender of firearms in accordance with sections eight hundred forty-two-a and eight hundred forty-six-a of the family court act, as applicable. Upon issuance of an order of protection pursuant to this section or upon a finding of a violation thereof, the court also may direct payment of restitution in an amount not to exceed ten thousand dollars in accordance with subdivision (e) of section eight hundred forty-one of such act; provided, however, that in no case shall an order of restitution be issued where the court determines that the party against whom the order would be issued has already compensated the injured party or where such compensation is incorporated in a final judgment or settlement of the action. 6. Subdivision 9 of section 252 of the domestic relations law, as amended by chapter 1 of the laws of 2013, is amended to read as follows: 9. Upon issuance of an order of protection or temporary order of protection or upon a violation of such order, the court shall make a determination regarding the suspension [and] and/or revocation of a license to carry, possess, repair or dispose of a firearm or firearms, ineligibility for such a license and the surrender of firearms in accordance with sections eight hundred forty-two-a and eight hundred forty-six-a of the family court act, as applicable. Upon issuance of an order of protection pursuant to this section or upon a finding of a violation thereof, the court also may direct payment of restitution in an amount not to exceed ten thousand dollars in accordance with subdivision (e) of section eight hundred forty-one of such act; provided, however, that in no case shall an order of restitution be issued where the court determines that the party against whom the order would be issued has already compensated the injured party or where such compensation is incorporated in a final judgment or settlement of the action. 7. Article 39-DDD of the general business law is REPEALED. 8. Section 9.46 of the mental hygiene law is REPEALED. 9. Sections 37, 38, 46 and 51 of chapter 1 of the laws of 2013, amending the criminal procedure law and other laws relating to

suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm are REPEALED. 10. The opening paragraph of subdivision a of section 265.20 of the penal law, as amended by chapter 496 of the laws of 1991, is amended to read as follows: Sections 265.01, 265.01-a, 265.02, 265.03, 265.04, 265.05, 265.10, 265.11, 265.12, 265.13, 265.15 and 270.05 shall not apply to: 11. Sections 265.01-b, 265.36, 265.37, 265.45, 400.02 and 400.03 of the penal law are REPEALED. 12. Subdivision 8 of section 265.02 of the penal law, as amended by chapter 1 of the laws of 2013, is amended to read as follows: (8) Such person possesses a large capacity ammunition feeding device[. For purposes of this subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before the effective date of the chapter of the laws of two thousand thirteen which amended this subdivision, that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition, or that was manufactured before September thirteenth, nineteen hundred ninety-four, that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition]; or 13. Subdivisions 5, 10, 12, 16-a and 16-b of section 400.00 of the penal law, subdivisions 5, 10 and 12 as amended and subdivisions 16-a and 16-b as added by chapter 1 of the laws of 2013, are amended to read as follows: 5. Filing of approved applications. [(a)] The application for any license, if granted, shall be filed by the licensing officer with the clerk of the county of issuance, except that in the city of New York and, in the counties of Nassau and Suffolk, the licensing officer shall designate the place of filing in the appropriate division, bureau or

unit of the police department thereof, and in the county of Suffolk the county clerk is hereby authorized to transfer all records or applications relating to firearms to the licensing authority of that county. [Except as provided in paragraphs (b) through (f) of this subdivision, the] The name and address of any person to whom an application for any license has been granted shall not be a public record. Upon application by a licensee who has changed his place of residence such records or applications shall be transferred to the appropriate officer at the licensee's new place of residence. A duplicate copy of such application shall be filed by the licensing officer in the executive department, division of state police, Albany, within ten days after issuance of the license. The superintendent of state police may designate that such application shall be transmitted to the division of state police electronically. In the event the superintendent of the division of state police determines that it lacks any of the records required to be filed with the division, it may request that such records be provided to it by the appropriate clerk, department or authority and such clerk, department or authority shall provide the division with such records. In the event such clerk, department or authority lacks such records, the division may request the license holder provide information sufficient to constitute such record and such license holder shall provide the division with such information. Such information shall be limited to the license holder's name, date of birth, gender,race, residential address, social security number and firearms possessed by said license holder. Nothing in this subdivision shall be construed to change the expiration date or term of such licenses if otherwise provided for in law. [Records assembled or collected for purposes of inclusion in the database established by this section shall be released pursuant to a court order. Records assembled or collected for purposes of inclusion in the database created pursuant to section 400.02 of this chapter shall not be subject to disclosure pursuant to article six of the public officers law. (b) Each application for a license pursuant to paragraph (a) of this subdivision shall include, on a separate written form prepared by the division of state police within thirty days of the effective date of the chapter of the laws of two thousand thirteen, which amended this section, and provided to the applicant at the same time and in the same manner as the

application for a license, an opportunity for the applicant to request an exception from his or her application information becoming public record pursuant to paragraph (a) of this subdivision. Such forms, which shall also be made available to individuals who had applied for or been granted a license prior to the effective date of the chapter of the laws of two thousand thirteen which amended this section, shall notify applicants that, upon discovery that an applicant knowingly provided false information, such applicant may be subject to penalties pursuant to section 175.30 of this chapter, and further, that his or her request for an exception shall be null and void, provided that written notice containing such determination is provided to the applicant. Further, such forms shall provide each applicant an opportunity to specify the grounds on which he or she believes his or her application information should not be publicly disclosed. These grounds, which shall be identified on the application with a box beside each for checking, as applicable, by the applicant, shall be as follows: (i) the applicant's life or safety may be endangered by disclosure because: (A) the applicant is an active or retired police officer, peace officer, probation officer, parole officer, or corrections officer; (B) the applicant is a protected person under a currently valid order of protection; (C) the applicant is or was a witness in a criminal proceeding involving a criminal charge; (D) the applicant is participating or previously participated as a juror in a criminal proceeding, or is or was a member of a grand jury; or (E) the applicant is a spouse, domestic partner or household member of a person identified in this subparagraph or subparagraph (ii) of this paragraph, specifying which subparagraph or subparagraphs and clauses apply.

(ii) the applicant has reason to believe his or her life or safety may be endangered by disclosure due to reasons stated by the applicant. (iii) the applicant has reason to believe he or she may be subject to unwarranted harassment upon disclosure of such information. (c) Each form provided for recertification pursuant to paragraph (b) of subdivision ten of this section shall include an opportunity for the applicant to request an exception from the information provided on such form becoming public record pursuant to paragraph (a) of this subdivision. Such forms shall notify applicants that, upon discovery that an applicant knowingly provided false information, such applicant may be subject to penalties pursuant to section 175.30 of this chapter, and further, that his or her request for an exception shall be null and void, provided that written notice containing such determination is provided to the applicant. Further, such forms shall provide each applicant an opportunity to either decline to request the grant or continuation of an exception, or specify the grounds on which he or she believes his or her information should not be publicly disclosed. These grounds, which shall be identified in the application with a box beside each for checking, as applicable, by the applicant, shall be the same as provided in paragraph (b) of this subdivision. (d) Information submitted on the forms described in paragraph (b) of this subdivision shall be excepted from disclosure and maintained by the entity retaining such information separate and apart from all other records. (e) (i) Upon receiving a request for exception from disclosure, the licensing officer shall grant such exception, unless the request is determined to be null and void, pursuant to paragraph (b) or (c) of this subdivision. (ii) A request for an exception from disclosure may be submitted at any time, including after a license or recertification has been granted.

(iii) If an exception is sought and granted pursuant to paragraph (b) of this subdivision, the application information shall not be public record, unless the request is determined to be null and void. If an exception is sought and granted pursuant to paragraph (c) of this subdivision, the information concerning such recertification application shall not be public record, unless the request is determined to be null and void. (f) The information of licensees or applicants for a license shall not be disclosed to the public during the first one hundred twenty days following the effective date of the chapter of the laws of two thousand thirteen, which amended this section. After such period, the information of those who had applied for or been granted a license prior to the preparation of the form for requesting an exception, pursuant to paragraph (b) of this subdivision, may be released only if such individuals did not file a request for such an exception during the first sixty days following such preparation; provided, however, that no information contained in an application for licensure or recertification shall be disclosed by an entity that has not completed processing any such requests received during such sixty days. (g) If a request for an exception is determined to be null and void pursuant to paragraph (b) or (c) of this subdivision, an applicant may request review of such determination pursuant to article seventy-eight of the civil practice laws and rules. Such proceeding must commence within thirty days after service of the written notice containing the adverse determination. Notice of the right to commence such a petition, and the time period therefor, shall be included in the notice of the determination. Disclosure following such a petition shall not be made prior to the disposition of such review.] 10. License: expiration, certification and renewal. [(a)] Any license for gunsmith or dealer in firearms and, in the city of New York, any license to carry or possess a pistol or revolver, issued at any time pursuant to this section or prior to the first day of July, nineteen hundred sixty-three and not limited to expire on an earlier date fixed in the license, shall expire not more than three years after

the date of issuance. In the counties of Nassau, Suffolk and Westchester, any license to carry or possess a pistol or revolver, issued at any time pursuant to this section or prior to the first day of July, nineteen hundred sixty-three and not limited to expire on an earlier date fixed in the license, shall expire not more than five years after the date of issuance; however, in the county of Westchester, any such license shall be certified prior to the first day of April, two thousand, in accordance with a schedule to be contained in regulations promulgated by the commissioner of the division of criminal justice services, and every such license shall be recertified every five years thereafter. For purposes of this section certification shall mean that the licensee shall provide to the licensing officer the following information only: current name, date of birth, current address, and the make, model, caliber and serial number of all firearms currently possessed. Such certification information shall be filed by the licensing officer in the same manner as an amendment. Elsewhere than in the city of New York and the counties of Nassau, Suffolk and Westchester, any license to carry or possess a pistol or revolver, issued at any time pursuant to this section or prior to the first day of July, nineteen hundred sixty-three and not previously revoked or cancelled, shall be in force and effect until revoked as herein provided. Any license not previously cancelled or revoked shall remain in full force and effect for thirty days beyond the stated expiration date on such license. Any application to renew a license that has not previously expired, been revoked or cancelled shall thereby extend the term of the license until disposition of the application by the licensing officer. In the case of a license for gunsmith or dealer in firearms, in counties having a population of less than two hundred thousand inhabitants, photographs and fingerprints shall be submitted on original applications and upon renewal thereafter only at six year intervals. Upon satisfactory proof that a currently valid original license has been despoiled, lost or otherwise removed from the possession of the licensee and upon application containing an additional photograph of the licensee, the licensing officer shall issue a duplicate license. [(b) All licensees shall be recertified to the division of state police every five years thereafter. Any license issued before the effective date of the chapter of the laws of two thousand thirteen which added this paragraph shall be recertified by the licensee

on or before January thirty-first, two thousand eighteen, and not less than one year prior to such date, the state police shall send a notice to all license holders who have not recertified by such time. Such recertification shall be in a form as approved by the superintendent of state police, which shall request the license holder's name, date of birth, gender, race, residential address, social security number, firearms possessed by such license holder, email address at the option of the license holder and an affirmation that such license holder is not prohibited from possessing firearms. The form may be in an electronic form if so designated by the superintendent of state police. Failure to recertify shall act as a revocation of such license. If the New York state police discover as a result of the recertification process that a licensee failed to provide a change of address, the New York state police shall not require the licensing officer to revoke such license.] 12. Records required of gunsmiths and dealers in firearms. Any person licensed as gunsmith or dealer in firearms shall keep a record book approved as to form, except in the city of New York, by the superintendent of state police. In the record book shall be entered at the time of every transaction involving a firearm the date, name, age, occupation and residence of any person from whom a firearm is received or to whom a firearm is delivered, and the calibre, make, model, manufacturer's name and serial number, or if none, any other distinguishing number or identification mark on such firearm. Before delivering a firearm to any person, the licensee shall require him to produce either a license valid under this section to carry or possess the same, or proof of lawful authority as an exempt person pursuant to section 265.20. In addition, before delivering a firearm to a peace officer, the licensee shall verify that person's status as a peace officer with the division of state police. After completing the foregoing, the licensee shall remove and retain the attached coupon and enter in the record book the date of such license, number, if any, and name of the licensing officer, in the case of the holder of a license to carry or possess, or the shield or other number, if any, assignment and department, unit or agency, in the case of an exempt person. The original transaction report shall be forwarded to the division of state police within ten days of delivering a firearm to any person, and a duplicate copy shall be kept by the licensee. The superintendent of

state police may designate that such record shall be completed and transmitted in electronic form. A dealer may be granted a waiver from transmitting such records in electronic form if the superintendent determines that such dealer is incapable of such transmission due to technological limitations that are not reasonably within the control of the dealer, or other exceptional circumstances demonstrated by the dealer, pursuant to a process established in regulation, and at the discretion of the superintendent. [Records assembled or collected for purposes of inclusion in the database created pursuant to section 400.02 of this article shall not be subject to disclosure pursuant to article six of the public officers law.] The record book shall be maintained on the premises mentioned and described in the license and shall be open at all reasonable hours for inspection by any peace officer, acting pursuant to his special duties, or police officer. In the event of cancellation or revocation of the license for gunsmith or dealer in firearms, or discontinuance of business by a licensee, such record book shall be immediately surrendered to the licensing officer in the city of New York, and in the counties of Nassau and Suffolk, and elsewhere in the state to the executive department, division of state police. 16-a. [Registration. (a) An owner of a weapon defined in paragraph (e) or (f) of subdivision twenty-two of section 265.00 of this chapter, possessed before the date of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph, must make an application to register such weapon with the superintendent of state police, in the manner provided by the superintendent, or by amending a license issued pursuant to this section within one year of the effective date of this subdivision except any weapon defined under subparagraph (vi) of paragraph (g) of subdivision twenty-two of section 265.00 of this chapter transferred into the state may be registered at any time, provided such weapons are registered within thirty days of their transfer into the state. Registration information shall include the registrant's name, date of birth, gender, race, residential address, social security number and a description of each weapon being registered. A registration of any weapon defined under subparagraph (vi) of paragraph (g) of subdivision twenty-two of section 265.00 or a feeding device as defined under subdivision twenty-three of section 265.00 of

this chapter shall be transferable, provided that the seller notifies the state police within seventy-two hours of the transfer and the buyer provides the state police with information sufficient to constitute a registration under this section. Such registration shall not be valid if such registrant is prohibited or becomes prohibited from possessing a firearm pursuant to state or federal law. The superintendent shall determine whether such registrant is prohibited from possessing a firearm under state or federal law. Such check shall be limited to determining whether the factors in 18 USC 922 (g) apply or whether a registrant has been convicted of a serious offense as defined in subdivision sixteen-b of section 265.00 of this chapter, so as to prohibit such registrant from possessing a firearm, and whether a report has been issued pursuant to section 9.46 of the mental hygiene law. All registrants shall recertify to the division of state police every five years thereafter. Failure to recertify shall result in a revocation of such registration. (b) The superintendent of state police shall create and maintain an internet website to educate the public as to which semiautomatic rifle, semiautomatic shotgun or semiautomatic pistol or weapon that are illegal as a result of the enactment of the chapter of the laws of two thousand thirteen which added this paragraph, as well as such assault weapons which are illegal pursuant to article two hundred sixty-five of this chapter. Such website shall contain information to assist the public in recognizing the relevant features proscribed by such article two hundred sixty-five, as well as which make and model of weapons that require registration. (c) A person who knowingly fails to apply to register such weapon, as required by this section, within one year of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph shall be guilty of a class A misdemeanor and such person who unknowingly fails to validly register such weapon within such one year period shall be given a warning by an appropriate law enforcement authority about such failure and given thirty days in which to apply to register such weapon or to surrender it. A failure to apply or surrender such weapon within such thirty-day period shall result in such

weapon being removed by an appropriate law enforcement authority and declared a nuisance. 16-b.] The cost of the software, programming and interface required to transmit any record that must be electronically transmitted by the dealer or licensing officer to the division of state police pursuant to this chapter shall be borne by the state. 14. Section 2509 of the surrogate's court procedure act is REPEALED. 15. Section 58 of chapter 1 of the laws of 2013 amending the criminal procedure law and other laws relating to suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm, is amended to read as follows: 58. This act shall take effect immediately; provided, however, that: a. Sections one, two, three, four, five, [six, seven, eight, nine,] ten, [eleven, twelve,] thirteen, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, [twenty,] twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-six-a, twenty-seven, twenty-eight, twenty-nine, thirty, thirty-one, thirty-two, thirty-three, thirty-four, thirty-five, thirty-six, thirty-nine, forty, [forty-one, fortyone-a, forty-one-b,] forty-two, forty-three, forty-five, [forty-six, forty-six-a, forty-seven, fifty-one,] fifty-two, [fifty-three,] fifty-four, fifty-five, and fifty-six of this act shall take effect on the sixtieth day after it shall have become a law; b. [The amendments to subdivision 23 of section 265.00 of the penal law made by section thirty-eight of this act shall take effect on the ninetieth day after this act shall have become a law, except that the amendments made to paragraph (a) of subdivision 23 shall take effect immediately; c.] The amendments to subdivision 1, paragraph (a) of subdivision 3, and subdivisions 4, 9, 10, 11, 12, 15, and 16-b of section 400.00 of the penal law made by section forty-eight of this act shall take effect

one year after this act shall have become a law; [d. The amendments to subdivision 16-a of section 400.00 of the penal law made by section forty-eight of this act shall take effect on the ninetieth day after this act shall have become a law; e. The amendments to sections 400.02 and 400.03 of the penal law made by sections forty-nine and fifty of this act shall take effect one year after it shall have become a law;] and [f.] c. The amendments to subdivision (b) of section 9.47 and sections 9.48 and 9.60 of the mental hygiene law made by sections twenty-one, twenty-two and twenty-three of this act shall not affect the expiration and repeal of such paragraph and sections and shall be deemed repealed therewith. 16. Severability. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid and after exhaustion of all further judicial review, the judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part of this act directly involved in the controversy in which the judgment shall have been rendered. 17. This act shall take effect immediately; provided that: the amendments to subdivisions 10, 12, 16-a and 16-b of section 400.00 of the penal law made by section thirteen of this act shall take effect on the same date and in the same manner as section 48 of chapter 1 of the laws of 2013 takes effect.

NEW YORK STATE SENATE INTRODUCER'S MEMORANDUM IN SUPPORT submitted in accordance with Senate Rule VI. Sec 1
BILL NUMBER: S3948 SPONSOR: MARCHIONE

TITLE OF BILL: An act to amend the family court act, in relation to the suspension and revocation of a license to carry firearms; to amend the domestic relations law, in relation to orders of protection; to amend the penal law, in relation to the applicability of certain provisions of the penal law, large capacity ammunition feeding devices, and gun licenses; to amend section 58 of chapter 1 of the laws of 2013 amending the criminal procedure law and other laws relating to suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm, in relation to the effectiveness thereof; and to repeal article 39-DDD of the general business law relating to the private sale or disposal of firearms, rifles and shotguns, section 9.46 of the mental hygiene law relating to reports of substantial risk or threat of harm by mental health professionals, sections 37, 38, 46 and 51 of chapter 1 of the laws of 2013, amending the criminal procedure law and other laws relating to suspension and revocation of firearms licenses; private sale or disposal of firearms, rifles or shotguns and establishing a minimum age to possess a firearm relating to gun control, section 265.01-b of the penal law relating to criminal possession of a firearm, section 265.36 of the penal law relating to unlawful possession of a large capacity ammunition feeding device, 265.37 of the penal law relating to unlawful possession of certain ammunition feeding devices, 265.45 of the

penal law relating to the safe storage of rifles, shotguns, and firearms, 400.02 of the penal law relating to the statewide license and record database and 400.03 of the penal law relating to sellers of ammunition, and section 2509 of the surrogate's court procedure act relating to a firearms inventory

PURPOSE: This bill seeks to amend or repeal those sections of the NY SAFE Act that are of questionable legality or which present practical problems for mental health officials or law enforcement and those sections that impose an unfunded mandate on local governments. SUMMARY OF PROVISIONS: Section 1 of the bill seeks to amend section 446-a of the Family Court Act to clarify that the Family Court Judge can determine to suspend or revoke the license to carry, possess, repair or dispose of a firearm or the eligibility for such a license when issuing an order of protection; this is particularly important in the case of a temporary order where suspension, rather than revocation may be most appropriate until all facts are known or adjudicated Section 2 makes the same amendment to 552 of the Family Court Act as section 1 does for section 446 for much the same reasons. Depending on the nature of the violation, the Family Court Judge should decide whether suspension or revocation is appropriate.

Sections 3, 4, 5 and 6 make the same amendments as sections 1 and 2 for similar reasons. Section 7 repeals section 17 of the SAFE act which added a new Article 39-DDD to the General Business Law. While there is some merit to requiring a background check for sales or exchanges of certain weapons, the SAFE act presumes that licensed dealers will be willing to perform the background check, complete the necessary paperwork and maintain records of such transaction and assume the liability therefor for a fee not to exceed ten ($10.00) dollars per transaction. At a time when the minimum wage is proposed to be increased to $9.00 per hour this is unrealistic If the dealer were to charge more than ten ($10) dollars, the dealer would violate the law and commit a misdemeanor, punishable by up to one year in jail. It is more probable that no dealers would consent to undertake these tasks for the limited fee authorized and the individual seller would be left without the ability to transfer the weapon or risk punishment for a class A misdemeanor by transferring the weapon without a dealer's involvement. Section 8 of this bill repeals section 20 of the SAFE Act. While undoubtedly well intended, the new section 9.46 added to the Mental Hygiene Law has been opposed by some organizations of mental health professionals because it may deter individuals from seeking professional help or from fully disclosing their intentions to their mental health

professional. There is further opposition to this provision on the basis that it reinforces stereotypes of persons with mental illness as dangerous To add to the problems with this provision, it would appear to be an unfunded mandate. If just all hospital admissions to psychiatric units (presumably because the individual is likely to engage in conduct that would result in harm to himself/herself or another) required a MHL 9.46 report, there would be over 200.000 reports annually in the state to be received, evaluated and passed on to DCJS. County mental health offices are not equipped to handle this flood of new work and would have to hire at least hundreds of new staff without a revenue stream. Lastly, while MHL 9.46 protects the mental health professional from civil or criminal liability, no such protection is afforded the directors of community services or their counties Section 9 of this bill will repeal section 37 of the SAFE Act which redefined an "assault weapon" by stating that a semiautomatic rifle or pistol that has an ability to accept a detachable magazine (regardless of size) or a semiautomatic shotgun, either of which has only one of the characteristics listed in the statute, such as a folding or telescoping stock, would now be defined as an "assault weapon". These artificial distinctions would re-classify a large number of the weapons currently owned by law abiding citizens for sporting and personal protection, arguably infringing upon the rights guaranteed them by the Second Amendment to the U.S. Constitution and Article 2, section 4

of the New York Civil Rights Law. Section 9 of this bill will also repeal section 38 of the SAFE Act which redefines "large capacity ammunition feeding device" to include those that can accept more than seven rounds of ammunition Section 38 contains measures that would be extremely burdensome to enforce and would create new "New York only" manufacturing standards on manufacturers of ammunition feeding devices. The SAFE act also does not contain appropriate exemptions for police, military and other government agencies. Section 9 of this bill also repeals the amendment to paragraph 3 of subdivision a of section 265.20 of the Penal Law contained in section 46 of the SAFE Act as it refers to the registration of firearms, that by the repeal of other sections would no longer be required. This section also repeals new paragraph 7-f as that exemption would no longer be needed with the repeal of sections dealing with the possession of ammunition feeding devices capable of holding more than seven rounds. Section 9 additionally repeals section 51 of the SAFE Act which would criminalize the failure of a gun owner to report the loss or theft of a gun to a police department within twenty-four hours of discovery by making it a class A misdemeanor, punishable by up to a year in jail Previously, such a failure was only punishable by a fine not to exceed one hundred dollars. This amendment criminalizes this failure or omission to act, without requiring knowledge or intent on

the part of the person failing to act and without regard to his or her ability to act. Conceivably, a victim of a robbery, hospitalized as a result of injuries sustained in the robbery for more than 24 hours, could be guilty of failing to make a timely report Section 10 of this bill amends paragraph a of section 265.20 of the Penal Law to add the provisions of section 265.01-a, added by section 41 of the SAFE Act, to the list of sections that do not apply to law enforcement. Without this amendment, a law enforcement officer could be prosecuted for having a weapon on school grounds. Section 11 of this bill would repeal section 41-a of the SAFE Act which would criminalize the possession of a firearm, which would include the newly defined "assault weapon" and make the failure to register a firearm, including the newly defined assault weapon, a felony crime. The latter provision of the SAFE Act could result in thousands of otherwise law abiding New Yorkers being subject to felony prosecution if they fail, refuse or neglect to register weapons that are now legal. This section is of questionable constitutional validity and appears in conflict with the New York Civil Rights Law. Section 11 of this bill also repeals section 46-a of the SAFE Act which would make possession of a newly defined large capacity ammunition feeding device a crime The reasons for repeal are the same as stated in section 10 above_

Section 11 of this bill also repeals section 47 of the SAFE Act which added a new requirement for the storage of rifles, shotguns and firearms. While this section of the SAFE Act is well intentioned, it was not fully thought out and contains practical problems that could unintentionally subject otherwise law abiding citizens to criminal prosecution. The provisions of the SAFE Act would seem to require that persons living with someone prohibited from possessing a firearm would have to use a gun locking device or lock his or her weapons in a "safe storage depository" nearly all of the time, which would seemingly prevent such weapons from being immediately available for self-defense, the defense of others or the protection of home invasion. Section 11 of this bill would repeal section 49 of the SAFE Act which would create a new statewide license and record database, This database would cost approximately $32.7 million, according to the Executive's proposed 2013-14 budget. While the creation of the database is well-intended, the chilling effect on the rights of legal gun owners imposed by the additional records maintained in this database, outweighs its benefit Section 11 repeals section 50 of the SAFE Act which would impose a new requirement on sellers of ammunition to record, in detail, every ammunition sale and clear every transaction through the proposed, to-be-established statewide license and record database. This is a new mandate

on ammunition sellers and purchasers, regardless of the type of ammunition or quantity, which will result in tens of thousands of new records required to be kept. The likely impact will be additional costs to New York business owners, a chilling effect on the rights of New York gun owners exercise of their legal rights and the shift of ammunition purchases out of state. Section 12 of this bill repeals the amendments to subdivision (8) of section 265.02 of the Penal Law, added by section 41-b of the SAFE Act, as that section would criminalize the possession of the newly defined "large capacity ammunition feeding device". Section 13 of this bill repeals those amendments of section 48 of the SAFE Act that create a new firearm licensing system. The Executive's proposed 2013-14 budget estimates the cost of this new system at $35.9 million at a time when the state is struggling to meet the challenges of our current economic climate and faces significant cuts in federal assistance. Additionally, this system would seem duplicative of the record keeping of county clerks and separate from any national gun registration database. The SAFE Act additionally establishes a complex system for certain gun owners to request that their license information to be withheld from disclosure. This issue is dealt with more simply in this bill by making license information not subject to FOIL, The reason for exempting this information arc ninny and varied and have been the subject of much media attention since the disclosure by

a Hudson Valley newspaper of the names and addresses of those in certain counties that had pistol permits The potential harm to police officers, corrections officers, parole officers, federal agents, judges, victims of domestic violence and others outweighs the need for public disclosure of this information. These license holders have committed no crime, in fact, they have submitted to a background investigation in order to get their licenses so sufficient safeguards are in place obviating the need for public disclosure of their personal information. Additionally, this bill will repeal the new requirement that pistol license holders recertify every five years under the threat of license revocation. Most important, this bill repeals those new sections of law added by the SAFE Act which would require, for the first time, registration of newly defined assault weapons. This registration requirement will affect tens of thousands of sportsmen and hunters in New York and potentially subject them to criminal prosecution for their failure to register their firearms. This requirement could create a chilling effect on the exercise of citizens' rights under the Second Amendment to the U.S. Constitution, the NYS Constitution and the New York Civil Rights Law. Section 15 of this bill repeals section 53 of the SAFE Act which would require that the fiduciary or attorney of record include a particularized description of every firearm, shotgun and rifle in the list of assets of the decedent's estate in the surrogate's court and with the

division of criminal justice services. This section appears to require all firearms, shotguns, and rifles, whether antique, non-working or otherwise to be listed. While there appears to be no sanction for a failure to list, it is practically difficult for an attorney of record, who generally does not control the decedent's household effects and personal property to report any specific property; he must usually trust the next-of-kin to provide the list. Section 16 is a standard severability clause. Section 17 makes required adjustments to the effective dates of the various sections of the SAFE Act. EXISTING LAW: In large part, this bill seeks, in many respects, to return to the law existing prior to the enactment of the SAFE Act JUSTIFICATION: The SAFE Act was rushed into print and to votes in both chambers of the Legislature without the opportunity for rank and file members to review the text, analyze the impacts or to consult with constituents and interested parties. Since its enactment, over 125,000 New Yorkers have signed a petition requesting its repeal. Now that the public has had an opportunity to review the provisions of the SAFE Act, law enforcement groups, mental health organizations, gun owner groups, and others have identified problems with the bill. Since the SAFE Act's signing into law, several lawsuits have been instituted

to challenge various aspects of the law This bill attempts to address the legitimate concerns raised about the SAFE Act. LEGISLATIVE HISTORY: This is a new bill to repeal or amend certain provisions of S.2230/A.2388 (Chapter 1 of the Laws of 2013).