SUMMARY OF THE NY SAFE ACT L 2013, ch 1

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1 Penal Law Changes Upgraded Crimes 41-a. The SAFE Act upgrades possession of an unlicensed firearm to a Class E felony (from Class A misdemeanor), even when it is unloaded and possession is in the home or place of business (Effective March: 16, 2013). (Possession of a loaded firearm remains a Class C violent felony except when possession is in the home or place of business, which is now punishable as a Class E felony). It also criminalizes possession of a newly banned assault weapon that was legal for the actor to possess prior to January 15, 2013 when the actor knowingly fails to register the assault weapon by April 15, Penal Law b Criminal possession of a firearm A person is guilty of criminal possession of a firearm when he or she: (1) possesses any firearm or; (2) lawfully possesses a firearm prior to [January 15, 2013] subject to the registration requirements of subdivision sixteen-a of section of this chapter and knowingly fails to register such firearm [by April 15, 2014]. (Class E felony) Note: Penal Law (1) criminal possession of a weapon in the fourth degree (Class A misdemeanor) also criminalizes possession of an unloaded firearm. This section has not been amended. Therefore, notwithstanding the SAFE Act, prosecutors can still opt to charge the misdemeanor level offense for possession of an unloaded firearm. 40, 41. Elevates the crime of criminal possession of a weapon on school grounds (formerly Penal Law (3) a Class A misdemeanor) to a Class E felony: Penal Law a Criminal possession of a weapon on school grounds A person is guilty of criminal possession of a weapon on school grounds when he or she knowingly has in his or her possession a rifle, shotgun, or firearm in or upon a building or grounds, used for educational purposes, of any school, college, or university, except the forestry lands, wherever located, owned and maintained by the state university of New York college of environmental science and forestry, or upon a school bus as defined in section one hundred fortytwo of the vehicle and traffic law, without the written authorization of such educational institution. (Class E felony). (Effective: March 16, 2013) 43. Upgrades, amends, and adds a new subdivision (3) to Penal Law (criminal purchase or disposal of a weapon), now a Class D felony (from Class A misdemeanor). Penal Law Criminal purchase OR DISPOSAL of a weapon A person is guilty of criminal purchase OR DISPOSAL of a weapon when: 1

2 1. Knowing that he or she is prohibited by law from possessing a firearm, rifle or shotgun because of a prior conviction or because of some other disability which would render him or her ineligible to lawfully possess a firearm, rifle or shotgun in this state, such person [attempts to purchase] PURCHASES a firearm, rifle or shotgun from another person; or 2. Knowing that it would be unlawful for another person to possess a firearm, rifle or shotgun, he or she purchases a firearm, rifle or shotgun for, on behalf of, or for the use of such other person[.]; OR 3. Knowing that another person is prohibited by law from possessing a firearm, rifle or shotgun because of a prior conviction or because of some other disability which would render him or her ineligible to lawfully possess a firearm, rifle or shotgun in this state, a person disposes of a firearm, rifle or shotgun to such other person. (Class D felony from Class A misdemeanor) (Effective: March 16, 2013) Mark s Law. Establishes a new category of aggravated murder punishable by life without parole when the intended victim was a first responder. The SAFE Act also adds this new category to the list of victims covered by murder in the first degree under Penal Law Penal Law Aggravated murder A person is guilty of aggravated murder when: (ii-a) The intended victim was a firefighter, emergency medical technician, ambulance driver, paramedic, physician or registered nurse involved in a first response team, or any other individual who, in the course of official duties, performs emergency response activities and was engaged in such activities at the time of killing and the defendant knew or reasonably should have known that the intended victim was such firefighter, emergency medical technician, ambulance driver, paramedic, physician or registered nurse.... (Effective: March 16, 2013) New Crimes 26, 45. Establishes the new crime of aggravated criminal possession of a weapon (Class C violent felony), which is defined as possession of a loaded firearm and commission of a violent felony or drug trafficking felony as part of the same criminal transaction. The practical effect of this new offense will be to raise the mandatory minimum sentence to 5 years (from 3 ½) in certain instances [see 29 below]. A court cannot impose a sentence for this crime to run consecutively to the sentence for the underlying violent felony or drug trafficking felony, defined in the new Penal Law 10.00(21) [see Penal Law 70.25(2)]. (Effective: March 16, 2013) Penal Law Aggravated Criminal Possession of a Weapon A person is guilty of aggravated criminal possession of a weapon when he or she commits the crime of criminal possession of a weapon in the second degree as defined in subdivision three of section of this article and also commits any violent felony offense as defined in subdivision one of section of this chapter or a drug trafficking felony as defined in 2

3 subdivision twenty one of section of this chapter arising out of the same criminal transaction. Class C violent felony [see 27 below] punishable by a determinate sentence between 5 and 15 years plus post-release supervision. A drug trafficking felony is defined by the new Penal Law 10.00(21) as one of the following offenses: criminal sale of a controlled substance in the first, second, third, and fourth degrees (Penal Law , , , ); use of a child to commit a controlled substance offense ( ); criminal sale of a controlled substance in or near school grounds ( ); unlawful manufacture of methamphetamine in the first and second degrees ( , ); and operating as a major trafficker ( ). 30, 41-b. Adds two new subdivisions to Penal Law relating to possession of an unloaded firearm plus commission of a drug trafficking crime or violent felony as part of the same criminal transaction. Also amends subdivision (8) to provide that for purposes of that subdivision, a large capacity ammunition feeding device shall not include an ammunition feeding device lawfully possessed by such person before January 15, 2013 that has a capacity of, or that can be readily restored or converted to accept more than seven but less than eleven rounds of ammunition or that was manufactured before September 13, 1994 that has a capacity of, or that can be readily restored or converted to accept more than ten rounds of ammunition. Penal Law Criminal possession of a weapon in the third degree A person is guilty of criminal possession of a weapon in the third degree when: (9) such person possesses an unloaded firearm and also commits a drug trafficking felony as defined in subdivision twenty-one of section of this chapter as part of the same criminal transaction; or (10) such person possesses an unloaded firearm and also commits any violent felony offense as defined in subdivision one of section of this chapter as part of the same criminal transaction. (Class D violent felonies) (Effective: March 16, 2013) Alternatives to determinate sentences are statutorily available under Penal Law 70.02(2)(b) for convictions under subdivision (9) (see 28 below amending Penal Law 70.02(2)(c)]. However, convictions under subdivision (10) will carry a minimum determinate sentence of 3 ½ years, as provided by 30, which amends Penal Law 70.30(3)(c). 52. Establishes the new crime of aggravated enterprise corruption: Penal Law Aggravated enterprise corruption A person is guilty of aggravated enterprise corruption when he or she commits the crime of enterprise corruption and two or more of the acts that constitute his or her pattern of criminal activity are class B felonies or higher, and at least two acts are armed felonies as defined in paragraph (a) of subdivision forty-one of section 1.20 of the criminal procedure law or one act is 3

4 such an armed felony and one act is a violation of subdivision two of section of this chapter or one act is a class B violent felony and two are violations of subdivision two of section of this chapter. (Class A-I felony) (Effective: March 16, 2013) 32. Adds a new subdivision to Penal Law (assault in the second degree) relating to recklessly causing physical injury to a minor by intentional discharge of a firearm, rifle, or shotgun. (Class D violent felony) (Effective: March 16, 2013) Penal Law Assault in the second degree 4-a. He recklessly causes physical injury to another person who is a child under the age of eighteen by intentional discharge of a firearm, rifle or shotgun Requires safe storage of rifles, shotguns, and firearms when the owner lives with a person who is prohibited from possessing a firearm. Penal Law Safe storage of rifles, shotguns, and firearms No person who owns or is custodian of a rifle, shotgun or firearm who resides with an individual who such person knows or has reason to know is prohibited from possessing a firearm pursuant to 18 U.S.C. 922(g)(1), (4), (8) or (9) shall store or otherwise leave such rifle, shotgun or firearm out of his or her immediate possession or control without having first securely locked such rifle, shotgun or firearm in an appropriate safe storage depository or rendered it incapable of being fired by use of a gun locking device appropriate to that weapon. For purposes of this section "safe storage depository" shall mean a safe or other secure container which, when locked, is incapable of being opened without the key, combination or other unlocking mechanism and is capable of preventing an unauthorized person from obtaining access to and possession of the weapon contained therein. With respect to a person who is prohibited from possessing a firearm pursuant to 18 U.S.C. 922(g) (9), for purposes of this section, this section applies only if such person has been convicted of a crime included in subdivision one of section of the criminal procedure law and such gun is possessed within five years from the later of the date of conviction or completion of sentence. (Class A misdemeanor) (Effective: March 16, 2013) Expanded Definitions 37. Redefinition of assault weapons (Effective: March 16, 2013) The centerpiece of the SAFE Act is a broadened definition of assault weapons to cover semiautomatic rifles, shotguns, and pistols with one (rather than two) additional characteristics. Owners of assault weapons that were lawfully possessed prior to January 15, 2013 may continue to lawfully possess them by registering the weapons prior to April 15, Penal Law (22) now defines an assault weapon as a semiautomatic rifle that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a pistol grip that protrudes conspicuously beneath the action of the weapon; (iii) a thumbhole stock; (iv) a second handgrip or a protruding grip that can be held by the non-trigger hand; (v) a bayonet mount; (vi) a flash suppressor, muzzle break, muzzle 4

5 compensator, or threaded barrel designed to accommodate a flash suppressor, muzzle break, or muzzle compensator; (vii) a grenade launcher; or a semiautomatic shotgun that has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) a fixed magazine capacity in excess of seven rounds; (v) an ability to accept a detachable magazine; or a semiautomatic pistol that has an ability to accept a detachable magazine and has at least one of the following characteristics: (i) a folding or telescoping stock; (ii) a thumbhole stock; (iii) a second handgrip or a protruding grip that can be held by the non-trigger hand; (iv) capacity to accept an ammunition magazine that attaches to the pistol outside of the pistol grip; (v) a threaded barrel capable of accepting a barrel extender, flash suppressor, forward handgrip, or silencer; (vi) a shroud that is attached to, or partially or completely encircles, the barrel and that permits the shooter to hold the firearm with the non-trigger hand without being burned; (vii) a manufactured weight of fifty ounces or more when the pistol is unloaded; or additional definitions and provisions include (viii) a semiautomatic version of an automatic rifle, shotgun or firearm; (d) a revolving cylinder shotgun; (e) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or weapon defined in subparagraph (v) of paragraph (e) of subdivision twenty-two of section of this chapter as added by chapter one hundred eighty-nine of the laws of two thousand and otherwise lawfully possessed pursuant to such chapter of the laws of two thousand prior to September fourteenth, nineteen hundred ninety-four; (f) a semiautomatic rifle, a semiautomatic shotgun or a semiautomatic pistol or weapon defined in paragraph (a), (b) or (c) of this subdivision, possessed prior to the date of enactment of the chapter of the laws of two thousand thirteen which added this paragraph Exclusions [an assault weapon] does not include: (i) any rifle, shotgun or pistol that (A) is manually operated by bolt, pump, lever or slide action; (B) has been rendered permanently inoperable; or (C) is an antique firearm as defined in 18 U.S.C. 921(a)(16); (ii) a semiautomatic rifle that cannot accept a detachable magazine that holds more than five rounds of ammunition; (iii) a semiautomatic shotgun that cannot hold more than five rounds of ammunition in a fixed or detachable magazine; or (iv) a rifle, shotgun or pistol, or a replica or a duplicate thereof, specified in Appendix A to 18 U.S.C. 922 as such weapon was manufactured on October first, nineteen hundred ninety-three. The mere fact that a weapon is not listed in Appendix A shall not be construed to mean that such weapon is an assault weapon; (v) any weapon validly registered pursuant to subdivision sixteen-a of section of this chapter. Such weapons shall be subject to the provisions of paragraph (h) of this subdivision; (vi) any firearm, rifle, or shotgun that was manufactured at least fifty years prior to the current date, but not including replicas thereof that is validly registered pursuant to subdivision sixteen-a of section of this chapter; (h) any weapon defined in paragraph (e) or (f) of this subdivision and any large capacity ammunition feeding device that was legally possessed by an individual prior to the enactment of the chapter of the laws of two thousand thirteen which added this paragraph, may only be sold to, exchanged with or disposed of to a purchaser authorized to possess such weapons or to an individual or entity outside of the state provided that any such transfer to an individual or entity outside of the state must be reported to the entity wherein the weapon is registered within seventy-two hours of such transfer. An individual who transfers any such weapon or large capacity ammunition device to an individual inside New York state or without complying with the provisions of this paragraph shall be guilty of a Class A misdemeanor unless such large capacity ammunition feeding device, the possession of which is made illegal by the chapter of the laws of two thousand thirteen which added this paragraph, is transferred within one year of the effective date of the chapter of the laws of two thousand thirteen which added this paragraph. 5

6 38. Redefines large capacity ammunition feeding device as, inter alia, one with a capacity to hold more than 7 rounds of ammunition (down from 10 rounds) [Penal Law (23)]; and provides exceptions thereto. (Effective: April 15, 2013, except subparagraph (a) effective January 15, 2013) Large capacity ammunition feeding device means a magazine, belt, drum, feed strip, or similar device, [manufactured after September 13, 1994] that (a) has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition, or (b) contains more than seven rounds of ammunition, or (c) is obtained after [January 15, 2013] and has a capacity of, or that can be readily restored or converted to accept, more than seven rounds of ammunition; provided, however, that such term does not include an attached tubular device designed to accept, and capable of operating only with,.22 caliber rimfire ammunition or a feeding device that is a curio or relic. A feeding device that is a curio or relic is defined as a device that (i) was manufactured at least fifty years prior to the current date, (ii) is only capable of being used exclusively in a firearm, rifle, or shotgun that was manufactured at least fifty years prior to the current date, but not including replicas thereof, (iii) is possessed by an individual who is not prohibited by state or federal law from possessing a firearm and (iv) is registered with the division of state police pursuant to subdivision sixteen-a of section of this chapter, except such feeding devices transferred into the state may be registered at any time, provided they are registered within thirty days of their transfer into the state. Notwithstanding paragraph (h) of subdivision twenty-two of this section, such feeding devices may be transferred provided that such transfer shall be subject to the provisions of section of this chapter including the check required to be conducted pursuant to such section. 39. Adds new subdivision (24) to Penal Law to define seller of ammunition as any person, firm, partnership, corporation or company who engages in the business of purchasing, selling or keeping ammunition. 46-a. (1) Criminalizes possession of large capacity ammunition feeding devices manufactured prior to September 13, 1994 (the effective date of the 1994 federal assault weapon ban); provides for good faith exceptions to criminal liability for persons who lawfully possessed such devices prior to January 15, 2013; and (2) criminalizes possession of certain ammunition feeding devices legally possessed prior to January 15, 2013 when it actually contains more than 7 rounds. Penal Law Unlawful possession of a large capacity ammunition feeding device It shall be unlawful for a person to knowingly possess a large capacity ammunition feeding device manufactured before [September 13, 1994], and if such person lawfully possessed such large capacity feeding device before [January 15, 2013], that has a capacity of, or that can be readily restored or converted to accept, more than ten rounds of ammunition. An individual who has a reasonable belief that such device is of such a character that it may lawfully be possessed and who surrenders or lawfully disposes of such device within thirty days of being notified by law enforcement or county licensing officials that such possession is unlawful shall not be guilty 6

7 of this offense. It shall be a rebuttable presumption that such person knows that such large capacity ammunition feeding device may not be lawfully possessed if he or she has been contacted by law enforcement or county licensing officials and informed that such device may not be lawfully possessed. (Class A misdemeanor) (Effective date is somewhat unclear but government source suggests it is April 15, 2013, see Penal Law Unlawful possession of certain ammunition feeding devices Criminalizes possession of a formerly legal ammunition feeding device that holds more than 7 and less than 10 rounds when it actually contains more than 7 rounds of ammunition. It shall be unlawful for a person to knowingly possess an ammunition feeding device that such person lawfully possessed before [January 15, 2013], that has a capacity of, or that can be readily restored or converted to accept more than seven but less than ten rounds of ammunition, where such device contains more than seven rounds of ammunition. Possession in home - First offense violation and subject to a fine of $200. Second offense - Class B misdemeanor punishable by up to 90 days imprisonment and $200 fine. Possession outside home - First offense - Class B misdemeanor punishable by up to 6 months imprisonment and $200 fine [The legislation specifies 6 months even though the crime is classified a Class B misdemeanor. But see Penal Law (2)]. Second offense Class A misdemeanor. 31. The SAFE Act adds a new definition of criminal facilitation (Penal Law article 115) relating to providing a community gun to a person when the gun later aids in the commission of a crime. Penal Law Criminal facilitation; definitions and construction For purposes of this article, such conduct shall include, but not be limited to, making available, selling, exchanging, giving or disposing of a community gun, which in fact, aids a person to commit a crime. "Community gun shall mean a firearm that is actually shared, made available, sold, exchanged, given or disposed of among or between two or more persons, at least one of whom is not authorized pursuant to law to possess such firearm. "Dispose of" shall have the same meaning as that term is defined in section of this chapter. "Share and make available shall, in the case of a firearm, be construed to include knowingly placing such firearm at a location accessible and known to one or more other persons. (Effective: March 16, 2013) 46. Amends Penal Law (3) and adds a new subdivision (7-f). (Effective: March 16, 2013) Subdivision 3 is amended to add an exemption for possession of a weapon as defined in Penal Law (22)(e) or (f) that is registered pursuant to (16-a)(a) or is included on an amended license issued pursuant to In the event the license is revoked, other than because the licensee is no longer permitted to possess a firearm, rifle, or shotgun under federal or state law, information sufficient to satisfy the requirements of (16-a) shall be transmitted 7

8 by the licensing officer to the state police; further provided, notwithstanding any other section of this title, a failure to register such weapon by a person who possesses it before January 15, 2013 and may so lawfully possess it thereafter upon registration, shall only be subject to punishment pursuant to (16-a)(c). Provided that such a license or registration shall not preclude a conviction for the offenses defined in (3) or a. New subdivision (7-f) provides that possession and use of a magazine, belt, feed strip or similar device, that contains more than 7 rounds of ammunition, but does not have the capacity of or can readily be restored or converted to accept more than 10 rounds, at an indoor or outdoor firing range located in or on premises owned or occupied by a duly incorporated organization organized for conservation purposes or to foster proficiency in arms; at an indoor or outdoor firing range for the purposes of firing a rifle or shotgun, at a collegiate, olympic, or target shooting competition under the auspices of or approved by the NRA, or at an organized match sanctioned by the International Handgun Metallic Silhouette Association. Authorized Dispositions and Sentences 26-a. Enacts a new Penal Law a: Authorized dispositions; certain criminal possession of a weapon in the third degree offenders. (Effective: March 16, 2013) When a person is to be sentenced upon conviction of the crime of criminal possession of a weapon in the third degree as defined in subdivision ten of section of this chapter, the court must sentence such defendant to a determinate sentence as provided in subparagraph (ii) of paragraph (c) of subdivision three of section of this chapter, unless a greater minimum sentence is otherwise required by another provision of this chapter. 27. Amends Penal Law 70.02(1)(b), (c). Aggravated criminal possession of a weapon (Penal Law ) is added to the list of class C violent felony offenses in (1)(b) and subdivisions 9 and 10 of Penal Law (third-degree criminal possession of a weapon) are added to the list of class D violent felony offenses in (1)(c). (Effective: March 16, 2013) 28. Amends the opening paragraph of Penal Law 70.02(2)(c) to delete the references to subdivision (4) of Penal Law [third-degree criminal possession of a weapon] and subdivision (4) of attempted third-degree criminal possession of a weapon. Also adds references to subdivision (9) for third-degree criminal possession of a weapon and attempted third-degree criminal possession of a weapon [see 41-b above]. (Effective: March 16, 2013) 29. Amends Penal Law 70.02(3)(b) to add (iv): For a class C felony, the term must be at least 3 ½ years to 15 years provided that the term must be (iv) at least five years and must not exceed fifteen years where the sentence is imposed for the crime of aggravated criminal possession of a weapon as defined in section of this chapter. 42. Amends Penal Law (2) to delete the phrase minimum term of an indeterminate in the first sentence of the subdivision. 8

9 Licensing, Registration, and Sellers of Ammunition 48. Amendments to Penal Law (1), (3)(a), (4), (5), (9)-(12), (15) and new subdivisions (16-a) and (16-b). (Effective: January 15, 2014, except amendments to (16-a) are effective on April 15, 2013) Some of the amendments and additions are as follows: Adds new categories of persons ineligible for a license to subdivision (1), including: fugitives from justice; unlawful users of or addicted to controlled substances as defined in 21 U.S.C. 802; aliens who either are illegally or unlawfully in the United States or have not been admitted to the United States under a nonimmigrant visa subject to the exception in 18 U.S.C. 922(y)(2); persons dishonorably discharged from the Armed Forces; persons involuntarily committed to a facility under the jurisdiction of the Department of Mental Hygiene pursuant to Mental Hygiene Law (MHL) article 9 or 15, Criminal Procedure Law article 730 or , Correction Law 402 or 408, Family Court Act or 353.4, or persons who have been civilly confined in a secure treatment facility pursuant to MHL article 10; and persons who have had a guardian appointed pursuant to any provision of state law, based on a determination that as a result of marked subnormal intelligence, mental illness, incapacity, condition or disease, they lack the mental capacity to contract or manage their own affairs. Amends (4) to provide that, before a license is issued or renewed, the local police must investigate all statements required in the application, including but not limited to a check of such records as may be accessible by the Division of State Police or DCJS pursuant to Amends (5) to provide that the Superintendent of the State Police may designate that an approved application be sent to the State Police electronically, and that the State Police may request, from the appropriate clerk, department, or authority, or the license holder, records required to be filed with it that it does not have. Records assembled or collected for inclusion in a database established by must be released upon court order. However, records assembled or collected for inclusion in the database created by are not subject to disclosure under Public Officers Law article 6 (Freedom of Information Law). Also provides a process for applicants and current licensees to request an exception from his or her application information from becoming public record. Amends (10)(b) to require that all licensees be recertified to the Division of State Police every five years. Licenses issued before January 15, 2013 shall be recertified on or before January 31, Failure to recertify acts as a revocation of the license, except in limited circumstances. Adds (16-a) to require an owner of a weapon described in (22)(e) or (f) that was possessed before January 15, 2013 to apply to register the weapon with the State Police in the manner provided by the Superintendent or by amending the license within one year of January 15, Weapons defined in (22)(g)(vi) transferred into the state may be registered at any time, provided they are registered within 30 days of transfer into the state. Also addresses transferability of a registration and requires recertification every 5 years. Knowing 9

10 failure to register such a weapon within one year of January 15, 2013 shall be guilty of a class A misdemeanor and a person who unknowing fails to validly register within that one year period shall be given a warning by an appropriate law enforcement authority about the failure and given 30 days to register or surrender the weapon. 49. Adds a new Penal Law : Statewide license and record database. (Effective: January 15, 2014) The State Police must maintain a statewide license and record database; the records are not subject to Public Officers Law article 6 (Freedom of Information Law). DCJS must periodically check the records against criminal conviction, mental health, and other records to determine their continued accuracy and whether an individual is no longer a valid license holder. Local and state law enforcement shall have access to the database, as otherwise authorized by law, in the performance of their duties. Records collected for the database must be released pursuant to a court order. 50. Adds a new Penal Law : Sellers of ammunition. (Effective: January 15, 2014) Requires sellers, as defined by (24) to register with the State Police. Dealers of firearms validly licensed under do not need to complete such registration. The section requires sellers to maintain certain records and perform checks through the statewide license and record database as specified. 51. Amends Penal Law to require persons lawfully in possession of ammunition as well as a firearm, rifle or shotgun who suffers loss or theft of such ammunition as well as a firearm; rifle or shotgun or ammunition and is a dealer in firearms or seller of ammunition who suffers the loss or theft of such ammunition to report the loss or theft within 24 hours of discovery to the police department or sheriff s office. A violation of (1)(a) is a class A misdemeanor (previously was publishable by a fine not to exceed $100). (Effective: March 16, 2013) Correction Law 3. New subdivision (3) of Correction Law 404: Disposition of mentally ill inmates upon release to parole, conditional release, or expiration of sentence. (Effective: March 16, 2013) Within a reasonable time prior to discharge of an inmate committed from a state correctional facility from a hospital in the department of mental hygiene to the community, the director shall ensure that a clinical assessment has been completed to determine whether the inmate meets the criteria for assisted outpatient treatment pursuant to [MHL 9.60(c)]. If, as a result of such assessment, the director determines that the inmate meets such criteria, prior to discharge the director of the hospital shall either petition for a court order pursuant to [MHL 9.60], or report in writing to the director of community services of the local governmental unit in which the inmate is expected to reside so that an investigation may be conducted pursuant to [MHL 9.47]. 10

11 Criminal Procedure Law (All effective March 16, 2013) 1. New subdivision (2-a) of Firearm, rifle or shotgun surrender order. Upon entry of a verdict of not responsible by reason of mental disease or defect, or upon the acceptance of a plea of not responsible by reason of mental disease or defect, or upon a finding that the defendant is an incapacitated person pursuant to article seven hundred thirty of this chapter, the court shall revoke the defendant's firearm license, if any, inquire of the defendant as to the existence and location of any firearm, rifle or shotgun owned or possessed by such defendant and direct the surrender of such firearm, rifle or shotgun pursuant to [Penal Law (a)(1)(f), (6)]. 2. New Obligation of sentencing court pursuant to article four hundred of the penal law. Upon judgment of conviction of any offense which would require the seizure of firearms, shotguns or rifles from an individual so convicted, and the revocation of any license or registration issued pursuant to article four hundred of the penal law, the judge pronouncing sentence shall demand surrender of any such license or registration and all firearms, shotguns and rifles. The failure to so demand surrender shall not effect the validity of any revocation pursuant to [Penal Law article 400] Amended subdivisions (1), (2), (3) of Opening paragraph of subdivision (1) is amended to delete the words mandatory and permissive and paragraph (b) amended to provide that in situations where the court finds a substantial risk that the defendant may use or threaten to use a firearm unlawfully against the person(s) for whom a temporary order of protection is issued, the court shall [previously may] suspend any existing firearms license, order the defendant ineligible for a license, and order the immediate surrender, pursuant to Penal Law (a)(1)(f) and (6), of any or all firearms owned or possessed. Opening paragraph of subdivisions (2) and (3) are amended to delete the words mandatory and permissive and paragraph (b) of each subdivision is amended to mandate revocation of a firearms license, order the defendant ineligible for a license, and order immediate surrender of firearms pursuant to Penal Law (a)(1)(f) and (6). Domestic Relations Law and Family Court Act (FCA) Amending and adding new laws regarding orders of protection and temporary orders of protection and firearms licenses and possession and ownership of firearms. Domestic Relations Law (All effective March 16, 2013) : amended subdivision (3) by designating the first undesignated paragraph as (g) and the closing paragraph as (h) and providing that, upon issuance of an order of protection (OOP) or temporary order of protection (TOP), or upon violation of such order, the court must 11

12 decide about the suspension and revocation of a license to carry, possess, repair, or dispose of a firearm(s), ineligibility for such a license, and surrender of firearms in accordance with FCA 842-a and 846-a. Previously, the court had discretion in making these determinations and the law only referred to FCA 842-a : amended subdivision (9) by making the same language changes that were made in FCA 240(3). Family Court Act (All effective March 16, 2013) 6. New 446-a. Firearms; surrender and license suspension, revocation and ineligibility. When the court issues an OOP or TOP, or upon a violation of such order, the court must decide about the suspension and revocation of a license to carry, possess, repair or dispose of a firearm(s), ineligibility for such a license, and the surrender of firearms in accordance with FCA 842-a. 7,8, 9. New 552, 656-a, 780-a. Same provisions as in the new 446-a a: amended subdivisions (1)-(3). Subdivisions 1 and 2 are amended to provide that when an OOP or TOP is issued pursuant to FCA 828, 841, or article 4, 5, 6, 7, or 10, the court shall, among other things, order immediate surrender, pursuant to Penal Law (a)(1)(f) and (6), of any and all firearms owned or possessed by the respondent. The references to the other articles of the FCA are new. The provisions in (1)(a)(ii)(A), (2)(a)(i), and (3)(a)(i) requiring serious physical injury are changed to requiring physical injury, as defined in Penal Law 10.00(9). The provisions in (1)(b), (2)(b), and (3)(b) are amended to required the court to suspend an existing firearms license, order the respondent ineligible for such a license, and order the immediate surrender of firearms pursuant to Penal Law (a)(1)(f) and (6). This used to be a discretionary determination. Subdivision 3 is amended to include willful violations of TOPs issued pursuant to the FCA or the Domestic Relations Law. Previously this subdivision only applied to OOPs issued under the FCA a amended to apply to TOPs issued pursuant to the FCA; provides for the immediate surrender of weapons pursuant to Penal Law (a)(1)(f) and (6); and amends the language to provide that if the willful failure to obey an OOP or TOP involves the infliction of physical injury (previously required serious physical injury), the court must order revocation and immediate surrender of firearms. 10. New 1056-a. Upon issuance of an OOP or TOP, or upon a violation thereof, the court must make an order in accordance with FCA 842-a. 12

13 Mental Hygiene Law (All effective March 16, 2013 except where indicated) : amended subdivision (j) by dividing the subdivision into two paragraphs. Amending (j)(1) to: Require that the Commissioner of the Office of Mental Health collect, retain, or modify data or records and transmit them to either DCJS or the FBI for national instant criminal background checks [previously the Commissioner had discretion to do so]; Require the Commissioner to transmit such data and records to DCJS, which may redisclose the data and records only for determining if a license issued pursuant to Penal Law should be denied, suspended, or revoked under (1), or for determining if a person is no longer permitted under federal or state law to possess a firearm; Cover the records of persons who have been involuntarily committed to a hospital pursuant to Correction Law 402 or 508(2). Amending (j)(2) to provide that the Commissioner must establish an administrative process to allow a person, who has been or may be disqualified from continuing to have a firearms license under Penal Law because the person was involuntarily committed or civilly confined to a facility under the Commissioner s jurisdiction, to petition for relief from that disability. Previously, the process only applied to persons disqualified from possessing a firearm pursuant to 18 USC 922(4)(d). 20. New Reports of substantial risk or threat of harm by mental health professionals. Notwithstanding any other law to the contrary, when a mental health professional, defined as a physician, psychologist, registered nurse, or licensed clinical social worker, currently providing treatment services to a person determines, in the exercise of reasonable professional judgment, that such person is likely to engage in conduct that would result in serious harm to the person or others, the professional must report, as soon as practicable, to the director of community services or the director s designee, who shall report to DCJS whenever the director or designee agrees that the person is likely to engage in such conduct. The information transmitted to DCJS shall be limited to names and other non-clinical identifying information, which may only be used for determining whether a license issued pursuant to Penal Law should be suspended or revoked, or for determining if such a person is ineligible for such a license, or is no longer permitted by state or federal law to possess a firearm. Nothing in this section shall be construed to require a professional to take any action, which, in the exercise of reasonable professional judgment, would endanger the professional or increase the danger to a potential victim or victims. The professional s decision to disclose or not to disclose in accordance with this section, when made reasonably and in good faith, shall not be the basis for any civil or criminal liability of such professional. 13

14 21. Amends 9.47: current (b)(5) renumbered (b)(7) and new (b)(5), (b)(6) added (Effective March 16, 2013, but does not affect the expiration and repeal thereof) Directors of community health services are responsible for: (5) ensuring evaluation of the need for ongoing assisted outpatient treatment pursuant to subdivision (k) of section 9.60 of this article prior to the expiration of any assisted outpatient treatment order; (6) if he or she has been ordered to provide for or arrange for assisted outpatient treatment pursuant to paragraph five of subdivision (j) of section 9.60 of this article or became the appropriate director pursuant to this paragraph or subdivision (c) of section 9.48 of this article, notifying the director of community services of the new county of residence when he or she has reason to believe that an assisted outpatient has or will change his or her county of residence during the pendency of an assisted outpatient treatment order. Upon such change of residence, the director of the new county of residence shall become the appropriate director, as such term is defined in section 9.60 of this article : new subdivision (c) (Effective March 16, 2013, but does not affect the expiration and repeal thereof) Directors of assisted outpatient treatment (AOT) programs providing services described in 9.60(a)(1) pursuant to any court order issued under such section shall evaluate the need for ongoing AOT pursuant to 9.60(k) before the AOT order expires and shall notify the director of community services of the new county of residence when the AOT director has reason to believe that an assisted outpatient has or will change county of residence during the pendency of an AOT order. Upon change of residence, the director of the new county of residence shall become the appropriate director, as defined in : amended (a)(3), (j)(2), (j)(5), (k), (n) (Effective March 16, 2013, but does not affect the expiration and repeal thereof) (a)(3) amended to define appropriate director as the director of community services of the county where the assisted outpatient resides, even if it is a different county than the county where the AOT order was originally issued. (j)(2)- The initial AOT order may not exceed 1 year (previously 6 months). (j)(5)- If the petitioner is not the director of a hospital that operates an AOT program, the AOT order shall require the appropriate director to arrange for all categories of AOT for the period of the order. (k) adds a new paragraph (1) (current language from (k) moves to (k)(2)) that provides that prior to expiration of a 9.60 order, the appropriate director shall review whether the assisted outpatient continues to meet the criteria for AOT. If yes or the director made appropriate attempts to, but has not been successful in eliciting the subject s cooperation in submitting to an examination, within 30 days before the order's expiration, the director may petition the court to 14

15 order continued AOT pursuant to (k)(2). Upon determining whether the criteria continue to be met, the director shall notify the program coordinator in writing as to whether a petition for continued AOT is warranted and whether a petition was or will be filed. (n) amended to refer to the "appropriate director." : amended subdivision (g) regarding the powers of the Commissioner of the Office for People with Developmental Disabilities. The amendments are the same as those made to MHL 7.09 [see 19 above] : amended (c)(12), new (c)(15) (c)(12)- amended to allow for disclosure of information to a director of community services or his or her designee provided that the disclosure is required pursuant to MHL (c)(15)- allows for disclosure to DCJS of names and other non-clinical identifying information for the sole purpose of implementing DCJS's responsibilities and duties under Penal Law , Extends the sunset date of Kendra s Law (L 1999, ch 408, 18) from June 30, 2015 to June 30, Education Law (All effective March 16, 2013) 55. New 2801-b. New York state school safety improvement teams. The Governor must establish school safety improvement teams, which may be composed of representatives from the Division of Homeland Security and Emergency Services, the Division of State Police, DCJS, and the Education Department. The Teams shall review and assess school safety plans submitted, on a voluntary basis, by school districts with a population of less than 125,000 inhabitants, boards of cooperative educational services, and county vocational education and extension boards, and may make recommendations to improve such plans. 56. Amended subdivision (6-c) of Addresses funding for metal detectors, security cameras, or other security devices. Executive Law : new subdivision 19 added that requires DCJS to receive the names and other non-clinical identifying information pursuant to MHL 9.46 [see 20 above]. That information must be destroyed five years after receipt or pursuant to a CPLR article 78 proceeding determining that an individual is eligible for a license pursuant to Penal Law and is otherwise permitted to possess a firearm. (Effective: March 16, 2013) 15

16 General Business Law SUMMARY OF THE NY SAFE ACT 17. Creates a new article 39-DDD: Private sale or disposal of firearms, rifles and shotguns. (Effective on March 16, 2013) 898: applies to private sales other than those between immediate family members and those conducted by a licensed importer, licensed manufacturer or licensed dealer, when the transaction is conducted pursuant to that person s federal firearms license. Judiciary Law 18. Amended 212(2)(q). (Effective: March 16, 2013) Current law requires the chief administrator of the courts to adopt rules regarding the transmission, to DCJS or the FBI, of the name and identifying information of each person who has a guardian appointed for him or her under any provision of state law, based on a determination that as a result of marked subnormal intelligence, mental illness, incapacity, condition or disease, the person lacks the mental capacity to contract or manage his or her own affairs. The amendment to (2)(q) provides that records transmitted directly to the FBI must also be transmitted to DCJS and any such records received by DCJS may be checked against the statewide license and record database. Surrogate s Court Procedure Act 53. New Firearms inventory. When a fiduciary or attorney of record must file a list of assists constituting a decedent's estate, the list must include a particularized description of every firearm, shotgun, and rifle, as defined by Penal Law , that are part of the estate. The list must be filed with the Surrogate's Court in the county where the estate is proceeding, if any, is pending and a copy must be filed with DCJS. (Effective March 26, 2013) 16

17 LAWS ADDED OR AMENDED BY L 2013, CH 1 Correction Law 404: new subdivision (3) [L 2013, 3; effective March 16, 2013] Criminal Procedure Law [all effective March 16, 2013] : new subdivision (2-a) [ 1] : new section [ 2] : amended subdivisions (1), (2), (3) [ 13-15] Domestic Relations Law [all effective March 16, 2013] 240: amended subdivision (3) [ 11] 252: amended subdivision (9) [ 12] Education Law [all effective March 16, 2013] 2801-b: new section [ 55] 3602: amended subdivision (6-c) [ 56] Executive Law 837: new subdivision 19 [ 16; effective March 16, 2013] Family Court Act [all effective March 16, 2013] 446-a: new section [ 6] 552: new section [ 7] 656-a: new section [ 8] 780-a: new section [ 9] 842-a: amended subdivisions (1)-(3) [ 4] 846-a: amended section [ 5] 1056-a: new section [ 10] General Business Law Article 39-DDD: new article [ 17; effective on March 16, 2013] Judiciary Law 212: amended (2)(q) [ 18; effective on March 16, 2013] Mental Hygiene Law [all effective on March 16, 2013 except where indicated] 7.09: amended subdivision (j) [ 19] 9.46: new section [ 20] 9.47: current (b)(5) renumbered (b)(7) and new (b)(5), (b)(6) [ 21; effective March 16, 2013, but does not affect the expiration and repeal thereof] 9.48: new subdivision (c) [ 22; effective March 16, 2013, but does not affect the expiration and repeal thereof] 9.60: amended (a)(3), (j)(2), (j)(5), (k), (n) [ 23; effective March 16, 2013, but does not affect the expiration and repeal thereof] 17

18 13.09: amended subdivision (g) [ 24] 33.13: amended (c)(12), new (c)(15) [ 25] SUMMARY OF THE NY SAFE ACT Penal Law [all effective on March 16, 2013 except where indicated] 10.00: new subdivision 21 [ 26] 60.11: new section [ 26-a] 70.02: amended (1)(b), (c) [ 27] 70.02: amended (2)(c), (3)(b), (3)(c) [ 28-30] : new section [ 31] : new subdivision (4-a) [ 32] New Mark s Law comprised of amendments to , [ 33] : amended (1), (1)(a) [ 34-35] : amended (1)(a) [ 36] : amended subdivisions (22), (23) and new subdivision (24) [ 37-39; amendment to (23) is effective on April 15, 2013, except that the amendment to (23)(a) is effective on January 15, 2013] : amended section [ 40] a: new section [ 41] b: new section [ 41-a] : amended subdivision (8) and new subdivisions (9), (10) [ 41-b] : amended subdivision (2) [ 42] : amended section [ 43] : new section [ 45] [Note: 44 was intentionally omitted] : amended subdivision (3) and new subdivision (7-f) [ 46] , : new sections [ 46-a] : new section [ 47] : amended subdivision (1), (3)(a), (4), (5), (9)-(12), (15) and new subdivisions (16-a), (16-b) [ 48; effective one year after it becomes law (January 15, 2014), except amendments to (16-a) are effective on April 15, 2013] : amended section [ 49; effective 1 year after it becomes law (January 15, 2014)] : new section [ 50; effective 1 year after it becomes law (January 15, 2014)] : amended section [ 51] : new section [ 52] Surrogate s Court Procedure Act 2509: new section [ 53; effective March 26, 2013] Undesignated Kendra s Law, L 1999, ch 408, 18, as amended by L 2010, ch 139- sunset date amended [ 54; effective March 16, 2013] Severability [ 57] Effective Date [ 58] Effective immediately unless otherwise provided 18