CPLR 63A Volume 2 Flashcards
6343 Issuance of a final extreme risk protection order
No sooner than ____________ days nor later than ___________ days after service of a temporary extreme risk protection order and, alternatively, no later than ____________ days after service of an application under this article where no temporary extreme risk protection order has been issued, 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, respondent should be returned to respondent.
Respondent shall be entitled to more than _____________ days if a temporary extreme risk protection order has been issued and respondent requests a reasonable period of additional time to prepare for hearing.
Where no temporary order has been issued, respondent may request, and court may grant additional time beyond __________ to allow respondent to prepare for hearing.
3 business ….. 6 business…….. 10 business…. 6 business ……. 10 days
6343 Issuance of a final extreme risk protection order
At hearing pursuant to subdivision one of this section, petitioner shall have burden of proving, by ______________ , that respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others
clear and convincing evidence
6343 Issuance of a final extreme risk protection order
Court may consider petition and any evidence submitted by petitioner, any evidence submitted by respondent, any testimony presented, and report of relevant law enforcement agency submitted pursuant to CPLR 6342 sub 9 (criminal history and ownership of firearms).
Court shall also consider factors set forth in CPLR 6342 sub 2 (History of Violence and/or DV)
6343 Issuance of a final extreme risk protection order
Court may consider petition and any evidence submitted by petitioner, any evidence submitted by respondent, any testimony presented, and report of relevant law enforcement agency submitted pursuant to CPLR 6342 sub 9 (criminal history and ownership of firearms).
Court shall also consider factors set forth in CPLR 6342 sub 2 (History of Violence and/or DV)
6343 Issuance of a final extreme risk protection order
(a) After hearing pursuant to sub one of this section, the court shall issue a __________ granting or denying extreme risk protection order and setting forth reasons for such determination.
If an extreme risk protection order is granted, court shall direct service of such order as prescribed above
written order
6343 Issuance of a final extreme risk protection order
(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 law enforcement agency having jurisdiction for duration of order, unless ownership of firearm, rifle or shotgun is legally transferred by respondent to another individual permitted by law to own and possess such firearm, rifle, or shotgun,
- (ii) supreme court shall temporarily suspend any existing firearm license possessed by respondent and order respondent temporarily ineligible for such a license,
- (iii) respondent shall be prohibited from purchasing or possessing, or attempting to purchase or possess, a firearm, rifle, or shotgun, and
- (iv) court shall direct respondent to surrender any firearm, rifle, or shotgun in his or her possession
xx
6343 Issuance of a final extreme risk protection order
(c) An extreme risk protection order can be for a period of up to ___________
If a Temporary ERPO was issued first, the __________ period shall begin on the date the temporary order was issued
one (1) year….. one year
6343 Issuance of a final extreme risk protection order
(d) A law enforcement officer serving a final extreme risk protection order shall request that respondent immediately surrender to officer all firearms, rifles and shotguns in respondent’s possession and 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 __________ , or that are discovered pursuant to a lawful search.
- As part of order, court may also direct a police officer to search for firearms, rifles, and shotguns in a respondent’s possession consistent with CPL690 procedures.
plain sight
6343 Issuance of a final extreme risk protection order
(a) Court shall notify division of state police, any other law enforcement agency with jurisdiction, all applicable licensing officers, and division of criminal justice services of issuance of a final extreme risk protection order and provide a copy of such order to such persons and agencies no later than next business day after issuing order.
- Court also shall promptly notify such persons and agencies and provide a copy of any order amending or revoking such protection order or restoring respondent’s ability to own or possess firearms, rifles, or shotguns no later than next business day after issuing order to restore such right to respondent.
- Any notice or report submitted pursuant to this subdivision shall be in an ________ in a manner prescribed by division of criminal justice services.
electronic format,
6343 Issuance of a final extreme risk protection order
(b) (BARD) Upon receiving notice of issuance of a final extreme risk protection order, DCJS must immediately report the following to the FBI:
- ____________ of an extreme risk protection order (ERPO)
- __________ of an ERPO
- Any court order ___________ or ______________ an ERPO
- Any court order ____________ the respondent’s ability to purchase a firearm
- This allows the FBI to identify people who are prohibited from purchasing firearms, rifles, or shotguns.
Issuance…… Expiration…. amending or revoking……. restoring
6343 Issuance of a final extreme risk protection order
(a) (BARD) If a court finds that the petitioner has not met the burden of proof for a temporary ERPO, the court must issue a written order to all parties directing that any firearm, rifle, or shotgun surrendered or removed pursuant to the ERPO be returned to the respondent, if there is no legal impediment to the respondent’s possession of the firearm.
6343 Issuance of a final extreme risk protection order
(a) (BARD) If a court finds that the petitioner has not met the burden of proof for a temporary ERPO, the court must issue a written order to all parties directing that any firearm, rifle, or shotgun surrendered or removed pursuant to the ERPO be returned to the respondent, if there is no legal impediment to the respondent’s possession of the firearm.
6343 Issuance of a final extreme risk protection order
(b) If any other person demonstrates that they are the lawful owner of any firearm surrendered or removed, and the court finds there is no legal impediment to their possession of the firearm, the court shall direct the firearm returned to them with notification that they must _________ it properly.
store
6343 Issuance of a final extreme risk protection order
- The respondent shall be notified on record and in writing by court that he or she may submit ___________ , 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 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 _________________ , any change of circumstances that may justify a change to order.
one written request………… clear and convincing evidence
6344 Surrender and removal of firearms, rifles, and shotguns pursuant to an extreme risk protection order
If a law enforcement officer takes possession of a firearm pursuant to an ERPO, they shall provide to the person handing it over a __________ or ___________ describing the property in detail.
In the absence of a person, the officer shall leave the receipt or voucher:
- Where the property was found and
- mail a copy to the respondent’s or owner’s LKA.
- The Officer shall retain the proof of mailing and file a copy of the receipt or voucher with the court.
receipt or voucher
6344 Surrender and removal of firearms, rifles, and shotguns pursuant to an extreme risk protection order
All firearms, rifles and shotguns in possession of a law enforcement official pursuant to this article shall be subject to provisions of applicable law, including but not limited to subdivision six of section 400.05 of penal law, provided, however, that any such firearm, rifle or shotgun shall be retained and not disposed of by law enforcement agency for at least _____________ unless legally transferred by respondent to an individual permitted by law to own and possess such firearm, rifle or shotgun.
two years
6344 Surrender and removal of firearms, rifles, and shotguns pursuant to an extreme risk protection order
- If a location jointly occupied by ________ or more parties is searched for firearms pursuant to an order and firearms found are legally owned by someone other than the respondent, the court shall, on written finding that the person may possess them legally, order the return of the firearms to such person with the notification that they are to store them properly.
two
