2023 New York Laws › CVP - Civil Practice Law and Rules › Article 63-A - Extreme Risk Protection Orders › 6343 - Issuance of a Final Extreme Risk Protection Order.

§  6343.  Issuance  of  a  final  extreme risk protection order. 1. In
accordance with this article, no sooner than  three  business  days  nor
later  than  six business days after service of a temporary extreme risk
protection order and, alternatively, no later  than  ten  business  days
after  service  of  an application under this article where no temporary
extreme risk protection order has been issued, the 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,  the  respondent should be
returned to the respondent. The respondent shall  be  entitled  to  more
than  six business days if a temporary extreme risk protection order has
been  issued  and  the  respondent  requests  a  reasonable  period   of
additional time to prepare for the hearing. Where no temporary order has
been  issued,  the  respondent  may  request,  and  the court may grant,
additional time beyond the ten days to allow the respondent  to  prepare
for the hearing.
2.  At  the  hearing  pursuant to subdivision one of this section, the
petitioner shall have the burden of proving,  by  clear  and  convincing
evidence,  that the respondent is likely to engage in conduct 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 of the mental
hygiene law. The court  may  consider  the  petition  and  any  evidence
submitted  by  the petitioner, any evidence submitted by the respondent,
any testimony presented, and the report of the relevant law  enforcement
agency  submitted  pursuant  to  subdivision nine of section sixty-three
hundred forty-two of this article. The court  shall  also  consider  the
factors  set  forth  in  subdivision  two of section sixty-three hundred
forty-two of this article.
3. (a) After the hearing pursuant to subdivision one of this  section,
the  court  shall  issue a written order granting or denying the extreme
risk  protection  order  and  setting  forth  the   reasons   for   such
determination.  If  the  extreme  risk  protection order is granted, the
court shall direct service of such order in the manner and in accordance
with the protections for the petitioner set forth in subdivision six  of
section sixty-three hundred forty-two of this article.
(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  the  law  enforcement agency having jurisdiction for the duration of
the order, unless ownership of the firearm, rifle or shotgun is  legally
transferred  by the respondent to another individual permitted by law to
own and possess such firearm, rifle or shotgun; (ii) the  supreme  court
shall  temporarily suspend any existing firearm license possessed by the
respondent and order the respondent temporarily ineligible  for  such  a
license;  (iii)  the  respondent  shall be prohibited from purchasing or
possessing, or attempting to purchase or possess, a  firearm,  rifle  or
shotgun; and (iv) the court shall direct the respondent to surrender any
firearm, rifle or shotgun in his or her possession in the same manner as
set  forth  in  subdivision  five  of  section  530.14  of  the criminal
procedure law.
(c) An extreme risk protection order issued in  accordance  with  this
section  shall  extend, as specified by the court, for a period of up to
one year from the date of the issuance of such order; provided, however,
that if such order  was  immediately  preceded  by  the  issuance  of  a
temporary  extreme  risk  protection  order,  then  the  duration of the
extreme risk protection  order  shall  be  measured  from  the  date  of
issuance of such temporary extreme risk protection order.
(d)  A law enforcement officer serving a final extreme risk protection
order shall request that the respondent  immediately  surrender  to  the
officer all firearms, rifles and shotguns in the respondent's possession
and  the  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  plain
sight,  or  that  are discovered pursuant to a lawful search. As part of
the order, the court may also direct a  police  officer  to  search  for
firearms,  rifles  and  shotguns in a respondent's possession consistent
with the procedures of  article  six  hundred  ninety  of  the  criminal
procedure law.
4.  (a) The court shall notify the division of state police, any other
law enforcement  agency  with  jurisdiction,  all  applicable  licensing
officers,  and the division of criminal justice services of the issuance
of a final extreme risk protection order and  provide  a  copy  of  such
order  to  such persons and agencies no later than the next business day
after issuing the order. The  court  also  shall  promptly  notify  such
persons  and  agencies  and  provide  a  copy  of  any order amending or
revoking such protection order or restoring the respondent's ability  to
own  or  possess  firearms,  rifles  or  shotguns no later than the next
business day after issuing the  order  to  restore  such  right  to  the
respondent.  Any notice or report submitted pursuant to this subdivision
shall be in an electronic format, in a manner prescribed by the division
of criminal justice services.
(b) Upon receiving notice of the issuance  of  a  final  extreme  risk
protection  order,  the  division  of  criminal  justice  services shall
immediately report the existence of such order to the federal bureau  of
investigation  to  allow  the bureau to identify persons prohibited from
purchasing  firearms,  rifles  or  shotguns.  The  division  shall  also
immediately report to the bureau the expiration of such protection order
and  any  court  order  amending  or  revoking  such protection order or
restoring the respondent's ability  to  purchase  a  firearm,  rifle  or
shotgun.
5.  (a)  If,  in  accordance  with a temporary extreme risk protection
order, a firearm, rifle or shotgun has been surrendered  by  or  removed
from  the  respondent, and the supreme court subsequently finds that the
petitioner has not met the  required  standard  of  proof,  the  court's
finding  shall include a written order, issued to all parties, directing
that any firearm, rifle or shotgun surrendered or  removed  pursuant  to
such temporary order shall be returned to the respondent, upon a written
finding that there is no legal impediment to the respondent's possession
of such firearm, rifle or shotgun.
(b)  If  any  other  person  demonstrates that he or she is the lawful
owner of any firearm, rifle or shotgun surrendered or  removed  pursuant
to  a  protection  order  issued  in  accordance  with this article, and
provided that the court has made a written  finding  that  there  is  no
legal  impediment to the person's possession of a surrendered or removed
firearm, rifle or shotgun, the court shall  direct  that  such  firearm,
rifle or shotgun be returned to such lawful owner and inform such person
of  the  obligation  to  safely store such firearm, rifle, or shotgun in
accordance with section 265.45 of the penal law.
6. The respondent shall be notified on the record and  in  writing  by
the  court  that  he  or she may submit one written request, 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 the 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 clear and convincing  evidence,  any  change  of
circumstances that may justify a change to the order.