N.Y. C.P.L.R. § 6342

NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only CPLR § 6342 Issuance of a temporary extreme risk protection order. 1 § 6342. Issuance of a temporary extreme risk protection order. 1. Uponapplication of a petitioner pursuant to this article, the court mayissue a temporary extreme risk protection order, ex parte or otherwise,to prohibit the respondent from purchasing, possessing or attempting topurchase or possess a firearm, rifle or shotgun, upon a finding thatthere is probable cause to believe the respondent is likely to engage inconduct 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 ofthe mental hygiene law. Such application for a temporary order shall bedetermined in writing on the same day the application is filed.2. In determining whether grounds for a temporary extreme riskprotection order exist, the court shall consider any relevant factorsincluding, but not limited to, the following acts of the respondent:(a) a threat or act of violence or use of physical force directedtoward self, the petitioner, or another person;(b) a violation or alleged violation of an order of protection;(c) any pending charge or conviction for an offense involving the useof a weapon;(d) the reckless use, display or brandishing of a firearm, rifle orshotgun;(e) any history of a violation of an extreme risk protection order;(f) evidence of recent or ongoing abuse of controlled substances oralcohol;(g) evidence of recent acquisition of a firearm, rifle, shotgun orother deadly weapon or dangerous instrument, or any ammunition therefor;or(h) evidence of recent acts of aggravated cruelty to animals asdefined in section three hundred fifty-three-a of the agriculture andmarkets law.In considering the factors under this subdivision, the court shallconside of aggravated cruelty to animals asdefined in section three hundred fifty-three-a of the agriculture andmarkets law.In considering the factors under this subdivision, the court shallconsider the time that has elapsed since the occurrence of such act oracts and the age of the person at the time of the occurrence of such actor acts.For the purposes of this subdivision, "recent" means within the sixmonths prior to the date the petition was filed.3. The application of the petitioner and supporting documentation, ifany, shall set forth the factual basis for the request and probablecause for issuance of a temporary order. The court may conduct anexamination under oath of the petitioner and any witness the petitionermay produce.4. A temporary extreme risk protection order, if warranted, shallissue in writing, and shall include:(a) a statement of the grounds found for the issuance of the order;(b) the date and time the order expires;(c) the address of the court that issued the order;(d) a statement to the respondent: (i) directing that the respondentmay not purchase, possess or attempt to purchase or possess a firearm,rifle or shotgun while the order is in effect and that any firearm,rifle or shotgun possessed by such respondent shall be promptlysurrendered to any authorized law enforcement official in the samemanner as set forth in subdivision five of section 530.14 of thecriminal procedure law;(ii) informing the respondent that the court will hold a hearing nosooner than three nor more than six business days after service of thetemporary order, to determine whether a final extreme risk protectionorder will be issued and the date, time and location of such hearing,provided that the respondent shall be entitled to more than six daysupon request in order to prepare for the hearing; and (iii) informingthe respondent the he or she may seek the advice of an attorney and thatan attorney nt shall be entitled to more than six daysupon request in order to prepare for the hearing; and (iii) informingthe respondent the he or she may seek the advice of an attorney and thatan attorney should be consulted promptly; and(e) a form to be completed and executed by the respondent at the timeof service of the temporary extreme risk protection order which elicitsa list of all firearms, rifles and shotguns possessed by the respondentand the particular location of each firearm, rifle or shotgun listed.5. If the application for a temporary extreme risk protection order isnot granted, the court shall notify the petitioner and, unless theapplication is voluntarily withdrawn by the petitioner, nonethelessschedule a hearing on the application for a final extreme riskprotection order. Such hearing shall be scheduled to be held promptly,but in any event no later than ten business days after the date on whichsuch application is served on the respondent, provided, however, thatthe respondent may request, and the court may grant, additional time toallow the respondent to prepare for the --- NEW YORK CIVIL PRACTICE LAW AND RULES (CPLR) New York State | For Informational Purposes Only hearing. A notice of suchhearing shall be prepared by the court and shall include the date andtime of the hearing, the address of the court, and the subject of thehearing.6. (a) The court shall, in the manner specified in paragraph (b) ofthis subdivision, arrange for prompt service of a copy of the temporaryextreme risk protection order, if any, the application therefor and, ifseparately applied for or if a temporary extreme risk protection orderwas not granted, the application for an extreme risk protection order,any notice of hearing prepared by the court, along with any associatedpapers including the petition and any supporting documentation,provided, that the court may redact the address and contac ny notice of hearing prepared by the court, along with any associatedpapers including the petition and any supporting documentation,provided, that the court may redact the address and contact informationof the petitioner from such application and papers where the court findsthat disclosure of such address or other contact information would posean unreasonable risk to the health or safety of the petitioner.(b) The court shall provide copies of such documents to theappropriate law enforcement agency serving the jurisdiction of therespondent's residence with a direction that such documents be promptlyserved, at no cost to the petitioner, on the respondent; provided,however, that the petitioner may voluntarily arrange for service ofcopies of such order and associated papers through a third party, suchas a licensed process server.7. (a) The court shall notify the division of state police, any otherlaw enforcement agency with jurisdiction, all applicable licensingofficers, the statewide computerized registry of orders of protectionand warrants of arrest referred to in section two hundred twenty-one-aof the executive law, and the division of criminal justice services ofthe issuance of a temporary extreme risk protection order and provide acopy of such order no later than the next business day after issuing theorder to such persons or agencies or registry. The court also shallpromptly notify such persons and agencies and registry and provide acopy of any order amending or revoking such protection order orrestoring the respondent's ability to own or possess firearms, rifles orshotguns no later than the next business day after issuing the order torestore such right to the respondent. The court also shall report suchdemographic data as required by the state division of criminal justiceservices at the time such order is transmitted thereto. Any notice orreport submitted pursuant to this su all report suchdemographic data as required by the state division of criminal justiceservices at the time such order is transmitted thereto. Any notice orreport submitted pursuant to this subdivision shall be in an electronicformat, in a manner prescribed by the division of criminal justiceservices.(b) Upon receiving notice of the issuance of a temporary extreme riskprotection order, the division of criminal justice services shallimmediately report the existence of such order to the federal bureau ofinvestigation to allow the bureau to identify persons prohibited frompurchasing firearms, rifles or shotguns. The division shall alsoimmediately report to the bureau the expiration of any such protectionorder, any court order amending or revoking such protection order orrestoring the respondent's ability to purchase a firearm, rifle orshotgun.8. A law enforcement officer serving a temporary extreme riskprotection order shall request that the respondent immediately surrenderto the officer all firearms, rifles and shotguns in the respondent'spossession and the officer shall conduct any search permitted by law forsuch firearms. The law enforcement officer shall take possession of allfirearms, rifles and shotguns that are surrendered, that are in plainsight, or that are discovered pursuant to a lawful search. As part ofthe order, the court may also direct a police officer to search forfirearms, rifles and shotguns in the respondent's possession in a mannerconsistent with the procedures of article six hundred ninety of thecriminal procedure law.9. Upon issuance of a temporary extreme risk protection order, or uponsetting a hearing for a final extreme risk protection order where atemporary order is denied or not requested, the court shall direct thelaw enforcement agency having jurisdiction to conduct a backgroundinvestigation and report to the court and, subject to any appropriateredacti ied or not requested, the court shall direct thelaw enforcement agency having jurisdiction to conduct a backgroundinvestigation and report to the court and, subject to any appropriateredactions to protect any person, each party regarding whether therespondent:(a) has any prior criminal conviction for an offense involvingdomestic violence, use of a weapon, or other violence;(b) has any criminal charge or violation currently pending against himor her;(c) is currently on parole or probation;(d) possesses any registered firearms, rifles or shotguns; and(e) has been, or is, subject to any order of protection or hasviolated or allegedly violated any order of protection. CPLR § 6342 Page 2