2023 New York Laws › EXC - Executive › Article 11 - Division of State Police › 228 - National Instant Criminal Background Checks.

§  228.  National  instant  criminal  background  checks.  1.  (a) The
division is hereby authorized and directed to serve as a state point  of
contact  for  implementation  of  18  U.S.C.  sec.  922 (t), all federal
regulations and applicable guidelines adopted pursuant thereto, and  the
national  instant  criminal  background check system for the purchase of
firearms and ammunition.
(b) Upon receiving a  request  from  a  licensed  dealer  pursuant  to
section  eight  hundred  ninety-six or eight hundred ninety-eight of the
general business law, the division shall initiate a background check  by
(i)  contacting  the  National  Instant Criminal Background Check System
(NICS)  or  its  successor  to  initiate  a  national  instant  criminal
background check, and (ii) consulting the statewide firearms license and
records  database  established  pursuant  to  subdivision  three of this
section, in order to determine if the purchaser is a person described in
sections 400.00 and 400.03 of the penal law, or is prohibited  by  state
or  federal  law  from  possessing,  receiving,  owning, or purchasing a
firearm or ammunition.
2. (a) The division shall report the name, date of birth and  physical
description  of any person prohibited from possessing a firearm pursuant
to 18 U.S.C. sec.  922(g)  or  (n)  to  the  national  instant  criminal
background check system index, denied persons files.
(b)  Information  provided  pursuant  to  this  section  shall  remain
privileged and confidential, and shall not be disclosed, except for  the
purpose  of  enforcing  federal  or  state law regarding the purchase of
firearms or ammunition.
(c) Any background check  conducted  by  the  division,  or  delegated
authority,  of  any applicant for a permit, firearms identification card
license, ammunition  sale,  or  registration,  in  accordance  with  the
requirements of section 400.00 of the penal law, shall not be considered
a  public record and shall not be disclosed to any person not authorized
by law or  this  chapter  to  have  access  to  such  background  check,
including   the  applicant.  Any  application  for  a  permit,  firearms
identification card, ammunition  sale,  or  license,  and  any  document
reflecting   the   issuance   or   denial   of   such  permit,  firearms
identification card, or license, and any permit, firearms identification
card,  license,  certification,  certificate,  form  of   register,   or
registration   statement,   maintained   by   any   state  or  municipal
governmental agency, shall not be considered a public record  and  shall
not  be  disclosed to any person not authorized by law to have access to
such documentation, including the applicant, except on  the  request  of
persons  acting  in  their  governmental  capacities for purposes of the
administration of justice.
3. The division shall create and maintain a statewide firearms license
and records database which shall contain records held  by  the  division
and  any  records  that it is authorized to request from the division of
criminal justice services, office  of  court  administration,  New  York
state  department of health, New York state office of mental health, and
other local entities. Such database shall be used for the  certification
and recertification of firearm permits under section 400.02 of the penal
law,  assault weapon registration under subdivision sixteen-a of section
400.00 of the penal law, and ammunition sales under  section  400.03  of
the  penal  law. Such database shall also be used to initiate a national
instant criminal background check pursuant to subdivision  one  of  this
section upon request from a licensed dealer. The division may create and
maintain  additional  databases  as needed to complete background checks
pursuant to the requirements of this section.
4. The superintendent shall promulgate a plan to coordinate background
checks for firearm and ammunition purchases pursuant to this section and

to require any person, firm  or  corporation  that  sells,  delivers  or
otherwise transfers any firearm or ammunition to submit a request to the
division  in  order to complete the background checks in compliance with
federal   and   state  law,  including  the  National  Instant  Criminal
Background Check System (NICS), in  New  York  state.  Such  plan  shall
include, but shall not be limited to, the following features:
(a)  The  creation  of  a  centralized  bureau  within the division to
receive and process all background check requests, which shall include a
contact center unit and an appeals unit. Staff may include  but  is  not
limited  to:  bureau  chief,  supervisors, managers, different levels of
administrative  analysts,   appeals   specialists   and   administrative
personnel.  The  division  shall  employ  and  train  such  personnel to
administer the provisions of this section.
(b) Procedures  for  carrying  out  the  duties  under  this  section,
including hours of operation.
(c)  An  automated  phone  system  and  web-based  application system,
including a toll-free  telephone  number  and/or  web-based  application
option for any licensed dealer requesting a background check in order to
sell, deliver or otherwise transfer a firearm which shall be operational
every  day  that  the  bureau  is  open  for business for the purpose of
responding to requests in accordance with this section.
5. (a) Each licensed dealer that submits  a  request  for  a  national
instant  criminal  background check pursuant to this section shall pay a
fee imposed by the bureau for performing such background check. Such fee
shall be allocated to the background check fund established pursuant  to
section  ninety-nine-pp  of the state finance law. The amount of the fee
shall not exceed the total amount of direct and indirect costs  incurred
by the bureau in performing such background check.
(b)  The  bureau  shall transmit all moneys collected pursuant to this
paragraph to the state comptroller, who shall credit  the  same  to  the
background check fund.
6. On January fifteenth of each calendar year, the bureau shall submit
a report to the governor, the temporary president of the senate, and the
speaker of the assembly concerning:
a.  the  number  of employees used by the bureau in the preceding year
for the  purpose  of  performing  background  checks  pursuant  to  this
section;
b.  the  number  of  background  check requests received and processed
during the preceding calendar year, including the  number  of  "proceed"
responses and the number and reasons for denials;
c.  the  calculations  used to determine the amount of the fee imposed
pursuant to this paragraph.
7. Within sixty days of  the  effective  date  of  this  section,  the
superintendent  shall  notify  each  licensed dealer holding a permit to
sell firearms of the requirement to submit a request to the division  to
initiate  a  background  check  pursuant  to this section as well as the
following means to be used to apply for background checks:
i. any person, firm or corporation that sells, delivers  or  otherwise
transfers  firearms  shall  obtain  a  completed  ATF 4473 form from the
potential buyer or transferee including name,  date  of  birth,  gender,
race,  social  security  number, or other identification numbers of such
potential  buyer  or  transferee  and  shall   have   inspected   proper
identification  including  an  identification containing a photograph of
the potential buyer or transferee.
ii. it shall be unlawful for any person, in connection with the  sale,
acquisition  or  attempted acquisition of a firearm from any transferor,
to willfully make any false, fictitious oral or written statement or  to
furnish   or   exhibit   any   false,   fictitious,   or  misrepresented

identification that is intended or likely  to  deceive  such  transferor
with respect to any fact material to the lawfulness of the sale or other
disposition  of  such firearm under federal or state law. Any person who
violates  the provisions of this subparagraph shall be guilty of a class
A misdemeanor.
8. Any potential buyer or transferee shall have thirty days to  appeal
the  denial  of  a  background  check,  using  a form established by the
superintendent. Upon receipt of an appeal, the  division  shall  provide
such applicant a reason for a denial within thirty days. Upon receipt of
the reason for denial, the appellant may appeal to the attorney general.