BILL NUMBER: S7792

SPONSOR: PERSAUD
 
TITLE OF BILL:

An act to amend the criminal procedure law, in relation to requiring the
people to serve defendants notice alleging that the defendant and the
person alleged to be the victim of such crime were members of the same
family or household

 
PURPOSE OR GENERAL IDEA OF BILL:

This bill amends CPL 370.15, to require that district attorney's serve
notice to convicted perpetrators, informing them that the state will be
seeking to prove that the affected victim was a member of the same fami-
ly or household as defined in subdivision one of section 530.11 of the
criminal procedure law.

 
SUMMARY OF SPECIFIC PROVISIONS:

  Section  1.  Subdivision 1 of section 370.15 of the criminal procedure
              

law, as added by chapter 60 of the laws of 2018,  is  amended,  striking
the term "may" and replacing it with "shall".

  Section 2. The enactment date.

 
JUSTIFICATION:

In 2011, former Senator Stephen Saland championed legislation
  (S4244-2011) that sought to "close a potential gap in the reporting of
crimes  by  NYS  to  the  federal government and ensure that individuals
convicted of certain misdemeanors are barred  from  purchasing  firearms
legally",  per the sponsor's memo. Federal law stipulates that those who
are convicted of a "Misdemeanor Crime of Domestic  Violence"  (MCDV)  be
prohibited from possessing or owning a firearm. However, nearly 10 years
later, the procedure outlined in that bill has had limited success.

The  law (CPL 370.15) created a process that would allow District Attor-
ney's (DA's) to determine whether a certain conviction  could  meet  the
federal  definition  of an MCDV. The process requires DA's to notify the
convicted  perpetrator  that  they  will  be  seeking  to  label   their
conviction as an MCDV. This triggers the hearing process, which is where
the  state  makes their case that the conviction meets the federal defi-
nition of an MCDV. If the DA's successfully argue that a conviction does
qualify as meeting the federal definition of an MCDV, they are  required
to  report the name to the state Department of Criminal Justice Services
(DCJS), so that DCJS can report the perpetrator to the FBI for inclusion
on the federal National Instant Criminal Background Check System (NICS).
Yet new data demonstrates a clear lack of  efficacy  when  it  comes  to
reporting  names  to the federal government.  According to data from the
Office of Court Administration, in the almost 10 years since the  incep-
tion  of  CPL 370.15, only 3,468 names have been transmitted to DCJS for
reporting to the FBI. In the County of Kings alone, with a population of
over 2.5 million people, only 415 names have been reported to DCJS since
2011. In 12 counties across the state, with  a  combined  population  of
over  500,000  residents,  there have been zero names reported since the
law has been active.


Consider, according to the FBI's list of Active  Records  in  the  NICS,
that  as of Dec. 31, 2019, New York (Population: 19.54 Million) has only
335 active cases for inclusion on  the  NICS  due  to  a  MCDV-qualified
conviction. Compare that number to data from less populated states, such
as  Connecticut  (Population: 3.5 million, Reported MCDV Cases: 31,619),
Louisiana (Population: 4.6 million, Reported MCDV  Cases:  34,873),  and
New Mexico (Population: 2.1 million, Reported MCDV Cases: 27,377). It is
clear that the process delineated in CPL 370.15 has a fatal flaw that is
allowing domestic violence perpetrators to slip through the cracks.

One  of  the potential reasons this data is not being sent to the proper
authorities could be attributed to how the current statute  is  written.
The  current  language provides discretion to District Attorney's, which
means they are not mandated to serve the notices to convicted  perpetra-
tors.  If  the  notices are not served, the hearing process is not trig-
gered, and the state never receives notification  that  the  perpetrator
should be reported for inclusion in the federal NICS database.

This  legislation  seeks  to ameliorate this issue by mandating that all
District Attorney's serve the notification to all convicted perpetrators
who had committed specific crimes as laid out in CPL 370.15. This  would
ensure that those who commit Misdemeanor Crimes of Domestic Violence are
being  reported  to the FBI, and help prevent them from having access to
firearms no matter where they are in the United States.

 
PRIOR LEGISLATIVE HISTORY:

New bill.

 
FISCAL IMPLICATIONS TO STATE AND LOCAL GOVERNMENT:

To be determined.

 
EFFECTIVE DATE:
immediately.