Relates to certain notices and stipulations in certain domestic violence actions and proceedings

Summary of specific provisions

Section one amends criminal procedure law by adding a new section 370.15 to provide that when a defendant has been charged with assault or attempted assault in the third degree, menacing or attempted menacing in the second degree, criminal obstruction of breathing or blood circulation or attempted criminal obstruction of breathing or blood circulation, forcible touching or attempted forcible touching, the people may, at arraignment or no later than 45 days after arraignment, for the purpose of notifying the division of criminal justice services as described in section two below, serve upon the defendant and file with the court a notice alleging that the defendant is related or situated to the victim of the crime in the manner specified in 18 U.S.c. 921(a)(33)(A)(ii). The notice must include the name of the person alleged to be the victim of the offense and specify the nature of the alleged relationship as set forth in 18 U.S.C. 921(a)(33)(A)(ii). Upon conviction to such offense, the court must advise the defendant that he or she is entitled to a hearing on the allegation contained in the notice and, if necessary, an adjournment of the sentencing proceeding in order to prepare for such hearing, and that if such allegation is sustained, that determination and conviction will be reported to the division of criminal justice services. The section further provides that a defendant may stipulate or admit orally on the record or in writing that he or she is related or situated to the victim as described in this section, in which case the relationship shall be deemed established for the purpose set forth in section two below. If the defendant denies such relationship to the victim as alleged in the notice served by the people, the people shall have the burden of proving beyond a reasonable doubt that the defendant is related or situated to the victim as alleged in the notice. At the conclusion of the hearing, or upon such a stipulation or admission, as applicable, the court shall make a specific written determination with respect to such allegation.

Section two amends Criminal procedure law by adding a new section 380.97 to provide that upon judgment of conviction of assault or attempted assault in the third degree, menacing or attempted menacing in the second degree, criminal obstruction of breathing or blood circulation or attempted criminal obstruction of breathing or blood circulation, forcible touching or attempted forcible touching, and

the defendant has been determined to be related or situated to the victim of the offense in the manner specified in 18 U.S.C. 92 I (a)(33)(A)(ii), the clerk of the court shall include notification and a copy of the written determination in any report of such conviction to the division of criminal justice services to enable the division to report such determination to the federal bureau of investigation and assist the bureau to identify persons prohibited from purchasing and possessing a firearm pursuant to the provisions of 18 U.S.c. 922.

Section three provides the effective date.

Justification

Keeping firearms out of the hands of individuals convicted of certain violent misdemeanors is of great importance to the citizens of this state. In Dutchess County alone there have been four recent instances of deaths due to domestic violence in the past year. These tragic events highlight the volatility of domestic violence cases and require action to ensure that an already dangerous situation is not compounded by allowing individuals convicted of certain misdemeanors access to legal firearms. This bill closes a potential gap in the reporting of crimes by our state to the federal government and ensures that individuals convicted of certain misdemeanors are barred from purchasing firearms legally.

Currently, a federal firearms licensee (FFL) may not sell or otherwise dispose of a firearm to a person who has been convicted of a misdemeanor crime of domestic violence (MCDV). The Criminal Justice Information Services Division of the Federal Bureau of Investigation (FBI) National Instant Criminal Background Check System (NICS) determines firearm eligibility by conducting a background check, which includes a check of automated databases. In cases where additional information is needed, follow-up requests are made to agencies such as the police, prosecutors or the courts; the NICS has three business days to determine whether a proposed gun transfer is prohibited. If the NICS has not been able to make a definitive determination within three business days, the FFL may lawfully transfer the firearm.

An MCDV is defined under federal law as an offense that: (i) is a misdemeanor under federal, state or tribal law (ii) has as an element the use or attempted use of physical force, or the threatened use of a deadly weapon; and (iii) at the time the offense was committed, the defendant was (A) a current or former spouse, parent, or guardian of the victim; (B) a person with whom the victim shares a child in common; (C) a person who is cohabiting with or has cohabitated with the victim as a spouse, parent, or guardian; or (D) a person who was or is similarly situated to a spouse, parent, or guardian of the victim.

Two critical pieces of information that would enable the FBI to determine whether a person has been convicted of an MCDV under federal law and therefore disqualified from purchasing a firearm are not provided by the State to the FBI.

This bill will provide the mechanism by which the two critical pieces of information may be transmitted by the State to the FBI. The bill identifies specific misdemeanor offenses that have the requisite

element of the use of or attempted use of physical force or the threatened use of a deadly weapon and therefore satisfy one of the criteria under federal law to constitute an MCDV. In the case of those offenses, the bill provides the people with the ability to determine the relationship of the defendant to the victim as described and therefore satisfy the second of the criteria required under federal law to constitute an MCDV. If the relationship as described is determined as provided in the bill, such relationship will be noted on the defendant's record, which record is transmitted by DCJS to the FBI for purposes of NICS.

With this critical information in the NICS, if a defendant has been convicted of an MCDV, the NICS can deny the firearm application without further research, resulting in greater efficiencies in conducting background checks and less delay in making determinations as to the eligibility to acquire a firearm, better ensuring that an individual who is prohibited under federal law from acquiring a firearm does not acquire the firearm. By failing to transmit this critical information, we run the risk that individuals who are prohibited from buying a gun nevertheless can because we did not give the FBI the necessary information that requires us to keep the guns out of their hands.

Prior legislative history

This is a new bill.

Fiscal implication

None.

Effective date

This act shall take effect on the one hundred twentieth day after it shall have become a law.