N.Y. Civil Practice Law & Rules § 6343: Issuance of a final extreme risk protection order

§ 6343. Issuance of a final extreme risk protection order. 1. In

accordance with this article, no sooner than three business days nor

later than six business days after service of a temporary extreme risk

protection order and, alternatively, no later than ten business days

after service of an application under this article where no temporary

extreme risk protection order has been issued, the supreme court shall

hold a hearing to determine whether to issue a final extreme risk

protection order and, when applicable, whether a firearm, rifle or

shotgun surrendered by, or removed from, the respondent should be

returned to the respondent. The respondent shall be entitled to more

than six business days if a temporary extreme risk protection order has

been issued and the respondent requests a reasonable period of

additional time to prepare for the hearing. Where no temporary order has

been issued, the respondent may request, and the court may grant,

additional time beyond the ten days to allow the respondent to prepare

for the hearing.

2. At the hearing pursuant to subdivision one of this section, the

petitioner shall have the burden of proving, by clear and convincing

evidence, that the respondent is likely to engage in conduct that would

result in serious harm to himself, herself or others, as defined in

paragraph one or two of subdivision (a) of section 9.39 of the mental

hygiene law. The court may consider the petition and any evidence

submitted by the petitioner, any evidence submitted by the respondent,

any testimony presented, and the report of the relevant law enforcement

agency submitted pursuant to subdivision nine of section sixty-three

hundred forty-two of this article. The court shall also consider the

factors set forth in subdivision two of section sixty-three hundred

forty-two of this article.

3. (a) After the hearing pursuant to subdivision one of this section,

the court shall issue a written order granting or denying the extreme

risk protection order and setting forth the reasons for such

determination. If the extreme risk protection order is granted, the

court shall direct service of such order in the manner and in accordance

with the protections for the petitioner set forth in subdivision six of

section sixty-three hundred forty-two of this article.

(b) Upon issuance of an extreme risk protection order: (i) any

firearm, rifle or shotgun removed pursuant to a temporary extreme risk

protection order or such extreme risk protection order shall be retained

by the law enforcement agency having jurisdiction for the duration of

the order, unless ownership of the firearm, rifle or shotgun is legally

transferred by the respondent to another individual permitted by law to

own and possess such firearm, rifle or shotgun; (ii) the supreme court

shall temporarily suspend any existing firearm license possessed by the

respondent and order the respondent temporarily ineligible for such a

license; (iii) the respondent shall be prohibited from purchasing or

possessing, or attempting to purchase or possess, a firearm, rifle or

shotgun; and (iv) the court shall direct the respondent to surrender any

firearm, rifle or shotgun in his or her possession in the same manner as

set forth in subdivision five of section 530.14 of the criminal

procedure law.

(c) An extreme risk protection order issued in accordance with this

section shall extend, as specified by the court, for a period of up to

one year from the date of the issuance of such order; provided, however,

that if such order was immediately preceded by the issuance of a

temporary extreme risk protection order, then the duration of the

extreme risk protection order shall be measured from the date of

issuance of such temporary extreme risk protection order.

(d) A law enforcement officer serving a final extreme risk protection

order shall request that the respondent immediately surrender to the

officer all firearms, rifles and shotguns in the respondent's possession

and the officer shall conduct any search permitted by law for such

firearms. The law enforcement officer shall take possession of all

firearms, rifles and shotguns that are surrendered, that are in plain

sight, or that are discovered pursuant to a lawful search. As part of

the order, the court may also direct a police officer to search for

firearms, rifles and shotguns in a respondent's possession consistent

with the procedures of article six hundred ninety of the criminal

procedure law.

4. (a) The court shall notify the division of state police, any other

law enforcement agency with jurisdiction, all applicable licensing

officers, the statewide computerized registry of orders of protection

and warrants of arrest referred to in section two hundred twenty-one-a

of the executive law, and the division of criminal justice services of

the issuance of a final extreme risk protection order and provide a copy

of such order to such persons and agencies and registry no later than

the next business day after issuing the order. The court also shall

promptly notify such persons and agencies and registry and provide a

copy of any order amending or revoking such protection order or

restoring the respondent's ability to own or possess firearms, rifles or

shotguns no later than the next business day after issuing the order to

restore such right to the respondent. The court also shall report such

demographic data as required by the state division of criminal justice

services at the time such order is transmitted thereto. Any notice or

report submitted pursuant to this subdivision shall be in an electronic

format, in a manner prescribed by the division of criminal justice

services.

(b) Upon receiving notice of the issuance of a final extreme risk

protection order, the division of criminal justice services shall

immediately report the existence of such order to the federal bureau of

investigation to allow the bureau to identify persons prohibited from

purchasing firearms, rifles or shotguns. The division shall also

immediately report to the bureau the expiration of such protection order

and any court order amending or revoking such protection order or

restoring the respondent's ability to purchase a firearm, rifle or

shotgun.

5. (a) If, in accordance with a temporary extreme risk protection

order, a firearm, rifle or shotgun has been surrendered by or removed

from the respondent, and the supreme court subsequently finds that the

petitioner has not met the required standard of proof, the court's

finding shall include a written order, issued to all parties, directing

that any firearm, rifle or shotgun surrendered or removed pursuant to

such temporary order shall be returned to the respondent, upon a written

finding that there is no legal impediment to the respondent's possession

of such firearm, rifle or shotgun.

(b) If any other person demonstrates that he or she is the lawful

owner of any firearm, rifle or shotgun surrendered or removed pursuant

to a protection order issued in accordance with this article, and

provided that the court has made a written finding that there is no

legal impediment to the person's possession of a surrendered or removed

firearm, rifle or shotgun, the court shall direct that such firearm,

rifle or shotgun be returned to such lawful owner and inform such person

of the obligation to safely store such firearm, rifle, or shotgun in

accordance with section 265.45 of the penal law.

6. The respondent shall be notified on the record and in writing by

the court that he or she may submit one written request, at any time

during the effective period of an extreme risk protection order, for a

hearing setting aside any portion of such order. The request shall be

submitted in substantially the same form and manner as prescribed by the

chief administrator of the courts. Upon such request, the court shall

promptly hold a hearing, in accordance with this article, after

providing reasonable notice to the petitioner. The respondent shall bear

the burden to prove, by clear and convincing evidence, any change of

circumstances that may justify a change to the order.