New Gun Law in New York to Require Gun Owners Accused of Domestic Violence to Surrender Guns
A new law passed in New York, and awaiting Governor Cuomo's signature (which is expected) expands the number of domestic violence related offenses that will trigger suspensions of gun licenses in New York and expands the types of gun licenses affected to include long guns such as shotguns and rifles, as well as handguns. (Amendments to Penal Law Regarding Suspension of Gun possession privileges.)
Existing law already allowed for the suspension of certain gun privileges for those convicted of felonies related to domestic violence, but this new legislation now includes suspension of gun privileges for those convicted of a list of misdemeanor offenses (including assault in the third degree, aggravated harassment in the second degree, and even criminal trespass in the third degree).
While it may not be all that surprising to discover that the ability of those convicted of crimes to have access to guns is being limited, another aspect of this new law poses some trickier problems.
Under this new law, Judges issuing orders of protection in domestic violence situations have the power to suspend gun licenses, even for long guns such as shotguns and rifles, for people simply accused of domestic violence related offenses. In order to suspend gun licenses or permits based upon the issuance of an order of protection in a domestic violence related case, the Court must make certain findings related to the history of the accused as a prior domestic abuser, criminal history, or some perceived level of risk in the absence of the suspension.
The most interesting aspect of these provisions (from the perspective of a criminal defense lawyer) is that if a Judge suspends a license or permit upon issuing an order of protection, the the defendant can force a hearing on the suspension. Although the suspension is expressly permitted prior to any hearing, the law also specifically states that the hearing must be conducted within 14 days of the suspension.
This is an an intriguing prospect to criminal defense lawyers in New York, where discovery in criminal cases is virtually nonexistent, unless one considers the trial a "discovery device". Unless the Government can rely on one of the more technical reasons for requesting the license or permit suspension, there will be cases where the Government will need to rely on reasons that will no doubt relate to the specifics of the pending criminal charges. This suggests that in cases where the only source of evidence of significance is the complaining witness, the Government will be required to put the complaining witness on the stand to discuss the facts of the case, and be subject to cross examination, within 14 days of arraignment. I wonder whether the Government will ever simply give up on requesting the suspension rather than have to put their witness on the stand subject to cross examination so soon after arraignment.
In New York City, however, so few people have permits to possess guns that this issue is unlikely to be frequently encountered. But outside of New York City, where possession of guns of various types is more common and more often legal, there may well be some interesting opportunities presented to hold hearings of substantial significance within two weeks of arraignment.
By Don Murray, Esq.
Don Murray is a 27 year veteran New York City criminal lawyer. He can be reached for consultation at 718-268-2171 by phone or text.