N.Y. Criminal Procedure Law § 140.10: Arrest without a warrant; by police officer; when and where authorized

§ 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.

3-a. A police officer shall not arrest any person for any legally

protected health activity as defined in section 570.17 of this chapter.

* 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, 2027

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) (i) 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:

(1) 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;

(2) shall 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 the possession of any person arrested

for the commission of a family offense or suspected of its commission;

and

(3) shall 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 if any one of the following

circumstances is present:

A. the victim responds in the affirmative to the suspect threats

questions in the victim interview section in the prior history section

of the New York state standardized domestic incident report (DIR) form;

or

B. the victim responds in the affirmative to any of the lethality

assessment questions in the prior history section of the New York state

standardized domestic incident report (DIR) form; or

C. any responding officer has a reasonable belief that it is necessary

to remove such weapon to protect the victim or other persons present, or

to prevent risk of further violence or threat.

(ii) 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 one hundred twenty 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.