SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS: PART K15
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PEOPLE OF THE STATE OF NEW YORK
INDICTMENT NO. 843-2021
Lower Court Docket No.
CR-012084-20QN
-against-
MOTION TO AMEND A FINAL
ORDER OF PROTECTION
PURSUANT TO CPL§530.12(15)
JOHN DOE,
Defendant.
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MEMORANDUM OF LAW
FOR DEFENDANT
Michael F. Dailey, Esq.
One Riverdale Avenue
Mailbox Eleven
Bronx, New York 10463
PRELIMINARY STATEMENT
Defendant John Doe submits this Memorandum of Law in support of his motion, pursuant to CPL 530.12(15), to amend the four (4) final orders or protection issued against him to permit him to possess his official duty NYPD firearm when required to do so pursuant to his official duties as a police officer for the NYPD and while supervised by said NYPD, and permitting him to retrieve said firearm from the proper authorities at his place of employment at the start of every tour of official duty, and directing him to surrender said firearm to the proper authorities at his place of employment at the end of every tour of official duty, and directing that he shall not possess any other firearm at any time or place during the period of said orders of protection.
On December 9, 2021, the Defendant pled guilty in Queens Supreme Court before the Hon. Michael. Yavinsky, A.S.C.J., to one Count of Criminal Mischief in the Fourth Degree, which is a Misdemeanor, in full satisfaction of the indictment that was pending against him. Although the indictment had charged the Defendant with stalking his ex-girlfriend, and although said ex-girlfriend was issued a final order of protection requiring the Defendant to stay away from her and refrain from all other contact with her, because the only property that was damaged by the Defendant and that was the subject matter of the Criminal Mischief charge that Defendant pled guilty to was owned by the landlord and the neighbor of the ex-girlfriend, and not the ex-girlfriend, and because there is no relationship between the Defendant and the landlord and neighbor that would constitute “members of the same family or household” as that term is defined in CPL §530.11 and FCA §812, the crime that the Defendant was convicted of is not one that disqualifies him from possessing a firearm under federal or New York State law.
QUESTIONS PRESENTED
- Whether, based upon his conviction for the misdemeanor crime of Criminal Mischief in the Fourth Degree, the Defendant is prohibited from possessing a firearm pursuant to federal law?
Answer: No.
- Whether, based upon his conviction for the misdemeanor crime of Criminal Mischief in the Fourt Degree, the Defendant is prohibited from possessing a firearm pursuant to New York State law?
Answer: No.
- Whether the Court that took his plea and issued his sentence has the legal authority to amend and modify the Final Orders of Protection that were issued by the Court at the time of the Defendant’s sentence?
Answer: Yes
- Whether the Court, in the proper exercise of its discretion, should amend and modify the Final Orders of Protection that were issued by the Court at the time of the Defendant’s sentence to permit him to possess his official duty NYPD firearm when required to do so pursuant to his official duties as a police officer for the NYPD and while supervised by said NYPD, and to retrieve said firearm from the proper authorities at his place of employment at the start of every tour of official duty, and to surrender said firearm to the proper authorities at his place of employment at the end of every tour of official duty, and to not possess any other firearm at any time or place during the period of the amended Final Orders of Protection?
Answer: Yes.
Brief Statement of Facts
On July 9, 2014, the Defendant was appointed to the NYPD, and was an officer in good standing up until the date of his arrest.
On July 5, 2020, the Defendant was arrested and charged by criminal complaint with Criminal Mischief in the Second Degree, PL 145.10; Stalking in the Third Degree, PL 120.50(3), and Aggravated harassment in the Second Degree, PL 140.30(1). In said criminal complaint, attached as Exhibit A, it is alleged that the Defendant called his ex-girlfriend multiple times on a daily basis throughout the month of April 2020, threatened to harm himself if she refused to date him, threatened to harm anyone she dated in the future, and threatened to harm her unless she agreed to date him again. According to the criminal complaint, about two weeks after she blocked his phone, said ex-girlfriend arrived home to find the Defendant sitting in his car and demanding to speak with her. The ex-girlfriend then moved to a new residence without informing the Defendant of her new address. Nonetheless, between July 4, 2020 and July 5, 2020, the Defendant sent numerous text messages to the ex-girlfriend and then appeared in front of the ex-girlfriends new address where he caused several thousand of dollars worth of property damage.
On September 16, 2021 the Defendant was indicted, and arraigned on the indictment on October 12, 2021.
On December 9, 2021, Defendant pled guilty in Queens Supreme Court, before the Hon. Michael. Yavinsky, A.S.C.J., to one Count of Criminal Mischief in the Fourth Degree, which is a Misdemeanor, in full satisfaction of the indictment.
The only property that the Defendant is alleged to have damaged, and the only damaged property that the Defendant pled guilty to on December 9, 2021, belonged to the ex-girlfriend’s landlord and next-door neighbor. There is no relationship between the Defendant and the landlord and neighbor that would constitute “members of the same family or household” as that term is defined in CPL §530.11 and FCA §812.
The Defendant was sentenced to a one-year conditional discharge, and as a condition of his plea, was required to complete counselling. The Defendant actively participated in two (2) substance abuse programs, two (2) domestic violence programs, and one anger management program. The Defendant also paid over $22,000.00 in restitution for the damage that he caused.
Finally, the sentencing Court issued four (4) full Final Orders of Protection that protect the ex-girlfriend, the ex-girlfriends brother who was living with her on July 5, 2020, the landlord and the next door neighbor. The Orders of Protection, while not suspending or revoking the Defendant’s license to possess a firearm, declare the Defendant ineligible to receive a firearm license during the period of the Orders of Protection which expire on December 9, 2026.
The Defendant is currently the subject of Official Charges and Specifications that have been served upon him by his employer the NYPD. It is the intention of the Defendant to seek to mitigate the penalty for his misconduct via the counselling he has completed and the restitution that he has paid since his guilty plea. The Defendant will also rely in his mitigation effort upon the positive employee evaluations that he has received while working for the NYPD, and his overall good reputation and the esteem that he enjoys among his peers and supervisors. However, the Defendant reasonably fears that unless the Final Orders of Protection that were issued by the Sentencing Court are modified and amended to allow him to permit him to possess his official duty NYPD firearm when required to do so pursuant to his official duties as a police officer for the NYPD and while supervised by said NYPD, his efforts at mitigation will be fruitless.
For a more complete statement of facts please see the Defendant’s Affidavit which is attached hereto.
Point One
Defendant’s Conviction Does Not
Require the Court to Revoke
His License to Possess a Firearm
Pursuant to Federal Law
The relevant provisions of 18 USC §922(g), the “Gun Control Act of 1968” as amended by the so-called “Lautenberg Amendment”, state the following:
(g) It shall be unlawful for any person…to possess…any firearm:
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(8) who is subject to a court order that—
- was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
- restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence
1: The Defendant Was Not Convicted of a Felony
The crime that the Defendant pled guilty to is Criminal Mischief in the Fourth Degree, which is a misdemeanor, and which is punishable by imprisonment for up to one (1) year. Accordingly, the defendant is not precluded from possessing a firearm pursuant to 18 USC §911(g)(1).
b. The Orders of Protection That
Were Issued Against the Defendant
Were Not Issued After a Hearing
The Final Orders of Protection that were issued against the Defendant were issued concurrent with his sentencing after he entered a guilty plea, and were not issued after a hearing. Accordingly, the defendant is not precluded from possessing a firearm pursuant to 18 USC §911(g)(8).
c. The Defendant Was Not Convicted
Of a Misdemeanor Crime of
Domestic Violence
The Defendant has not been convicted of a misdemeanor crime of domestic violence.
The term “misdemeanor crime of domestic violence” is defined at 18 USC §921(a)(33)(A) as follows:
The term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State, Tribal, or local law; and
(ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, by a person similarly situated to a spouse, parent, or guardian of the victim, or by a person who has a current or recent former dating relationship with the victim.
As set forth in the Defendant’s affidavit, and as set forth in the Criminal Complaint (Exhibit A), and the indictment (Exhibit B), and the Prosecutor’s Memo (Exhibit I), the only property that the Defendant damaged, and the only property that he pled guilty to damaging, was the property owned by his ex-girlfriend’s landlord and neighbor. Thus, because the parties involved in the crime that the Defendant pled guilty to do not meet the requirements of 18 USC §921(a)(33)(ii), the crime that the Defendant pled guilty to does not meet the definition of a “Misdemeanor Crime of Domestic Violence” as defined by 18 USC §921(a)(33), and therefore the Defendant is not precluded from possessing a firearm pursuant to the “Lautenberg Amendment” at 18§922(g)(9).
Conclusion Point One:
The Defendant is not precluded from possessing a firearm pursuant to 18 USC §922(g), the “Gun Control Act of 1968” as amended by the so-called “Lautenberg Amendment”.
Point Two:
Defendant’s Conviction and
The Orders of Protection that
Were Issued Do Not
Require the Court to Revoke
His License to Possess a Firearm
Pursuant to New York State Law
The Court’s Power to Revoke
A Firearm License Pursuant
To CPL §530.14
The suspension and revocation of licenses to possess firearms as the result of the issuance of Orders of Protection in the Crimi8nal Courts is governed by CPL §530.14.
As this application addresses the issuance of Final Orders of Protection, and not temporary orders or the violation thereof, the only subparagraph of CPL §530.14 that is relevant to the case at bar is subdivision 2. CPL§530.14(2) addresses the revocation or suspension of firearms licenses upon the issuance of a final order of protection pursuant to either CPL 530.12(5) [orders of protection issued for family offenses], or CPL 530.13(4) [orders of protection issued for non-family offenses]. CPL §530.14(2) is further divided into two subdivisions.
A. Revocation of the Defendant’s
License to Possess a Firearm
Pursuant to CPL §530.14(2)(a):
CPL §530.14(2)(a) states the following:
Whenever an order of protection is issued pursuant to CPL §530.12(5) or CPL §530.13(4) of this article:
The court shall revoke any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immediate surrender of any or all firearms, rifles and shotguns owned or possessed where such action is required by PL §400.00.
NY Penal Law §400.00(11)(a) contains the conditions pursuant to which a license to possess a firearm shall be revoked. These conditions will be considered one at a time.
First Condition for Revocation
Pursuant to PL Law §400.00(11)(a):
Conviction of a Felony
The first condition set forth in PL §400.00(11)(a) for the revocation of a firearm is as follows:
The conviction of a licensee anywhere of a felony.
The term “felony” is defined at PL §10.00(5) as “an offense for which a sentence to a term of imprisonment in excess of one year may be imposed.” The Defendant has not been convicted anywhere of a felony. Thus, the Court is not required to revoke the Defendant’s existing license to possess a firearm, order the defendant ineligible for such a license or order the immediate surrender of his firearms pursuant to CPL §530.14(2)(a) and the first condition set forth in PL §400.11(a).
Second Condition for Revocation
Pursuant to PL Law §400.00(11)(a):
Conviction of a Serious Offense
The term “serious offense” is defined at PL §265.00(17) as follows:
- Any of the following offenses defined in the current penal law and any offense in any jurisdiction or the former penal law that includes all of the essential elements of any of the following offenses:
Illegally using, carrying or possessing a pistol or other dangerous weapon; possession of burglar’s tools; criminal possession of stolen property in the third degree; escape in the third degree; jostling; fraudulent accosting; endangering the welfare of a child; obscenity in the third degree; issuing abortional articles; permitting prostitution; promoting prostitution in the third degree; stalking in the fourth degree; stalking in the third degree; sexual misconduct; forcible touching; sexual abuse in the third degree; sexual abuse in the second degree; criminal possession of a controlled substance in the seventh degree; criminally possessing a hypodermic instrument; criminally using drug paraphernalia in the second degree; criminal possession of methamphetamine manufacturing material in the second degree; and a hate crime defined in article four hundred eighty-five of this chapter.
- Any of the following offenses defined in the current penal law and any offense in any jurisdiction or in the former penal law that includes all of the essential elements of any of the following offenses, where the defendant and the person against whom the offense was committed were members of the same family or household as defined in subdivision one of section 530.11 of the criminal procedure law and as established pursuant to section 370.15 of the criminal procedure law:
Assault in the third degree; menacing in the third degree; menacing in the second degree; criminal obstruction of breathing or blood circulation; unlawful imprisonment in the second degree; coercion in the third degree; criminal tampering in the third degree; criminal contempt in the second degree; harassment in the first degree; aggravated harassment in the second degree; criminal trespass in the third degree; criminal trespass in the second degree; arson in the fifth degree; or attempt to commit any of the above-listed offenses.
- c) Any misdemeanor offense in any jurisdiction or in the former penal law that includes all of the essential elements of a felony offense as defined in the current penal law.
The term “members of the same family or household”, as indicated above, is defined at CPL §530.11(1) as follows:
For purposes of this section, “members of the same family or household” with respect to a proceeding in the criminal courts shall mean the following:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another regardless of whether they still reside in the same household;
(d) persons who have a child in common, regardless of whether such persons have been married or have lived together at any time; and
(e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.
The crime that the Defendant pled guilty to fails to meet the definition of a “serious offense” for four (4) reasons:
- The crime that the Defendant pled guilty to, Criminal Mischief in the Fourth Degree, is not listed under PL §265.00(17)(a);
- The crime that the Defendant pled guilty to, Criminal Mischief in the Fourth Degree, is not listed under PL §265.00(17)(b);
- The victims of the crime that the Defendant pled guilty to, Criminal Mischief in the Fourth Degree, do not meet the definition of “members of the same family or household” as defined under PL §265.00(17)(b) and CPL 530.11(1) [see Defendant’s Affidavit in Support, attached];
- The crime that the Defendant pled guilty to, Criminal Mischief in the Fourth Degree, does not include all of the essential elements of a felony offense as defined in the current penal law.
Based upon the definition of a “serious offense” set forth above, the crime that the Defendant pled guilty to, Criminal Mischief in the Fourth Degree, is not a “serious offense.” Thus, the Court is not required to revoke the Defendant’s existing license to possess a firearm, order the defendant ineligible for such a license or order the immediate surrender of his firearms pursuant to CPL §530.14(2)(a) and the second condition set forth in PL §400.00(11)(a).
Third Condition for Revocation
Pursuant to PL §400.00(11)(a):
A licensee at any time becoming
Ineligible to Obtain a License
Under this Section (ie: Under PL §400.00)
The third condition for revocation contained in PL §400.00(11)(a) does not apply to the Defendant’s case because to apply it would be putting the cart before the horse.
The terms of eligibility for a license to possess a firearm are set forth at PL §400.00(1). The relevant terms are as follows:
No license shall be issued or renewed except for an applicant:
- Twenty-one years of age or older…
- Of good moral character
- Who has not been convicted anywhere of a felony or a serious offense or who is not the subject of an outstanding warrant of arrest (for a) felony or serious offense
- Who is not a fugitive from justice
- Who is not an unlawful user of or addicted to any controlled substance…
- Who being an alien…
- Who has not been discharged from the Armed Forces under dishonorable conditions
- Who has renounced his or her citizenship
- Who has stated whether he or she has ever suffered any mental illness
- Who has not been involuntarily committed to a facility…
- Who has not had a license revoked or who is not under a suspension or ineligibility order issued pursuant to the provisions of CPL §530.14 or FCA §842-A
- In the county of Westchester…
Clearly, the Defendant is not ineligible to obtain a license to possess a firearm pursuant to the provisions of PL §400.00(1) subdivisions “a”, “b”, “c”, “d”, “e”, “f”, “g”, “h”, “i”, “j” or “l”.
PL §400.00(1)(k)
As an initial note, FCA §842-A, which is mentioned in PL §400.00(1)(k), is inapplicable to the Defendant’s case because it pertains to the issuance of orders of protection pursuant to various articles of the Family Court Act. The Orders of Protection at issue in this application for relief were issued pursuant to the Criminal Procedure Law §530.13(4).
The first part of PL §400.00(1)(k), read more clearly, initially states that a person who has had a firearms license revoked is ineligible to be issued a new firearms license, or have an existing firearms license renewed. This cannot be read to require a Court to revoke a license pursuant to CPL §530.14(2)(a) because it is the revocation pursuant to CPL §530.14(2)(a) that renders the licensee ineligible under PL §400.00(11)(a) and PL §400.00(1)(k). To read this otherwise would be putting the cart before the horse. The appropriate reading of the two statutes is supported by the last line in PL §400.00(11)(a) which states “A license may be revoked or suspended as provided for in CPL §530.14”.
In any event, the first part of PL §400.00(1)(k) dealing with a license that has been revoked is inapplicable to the case at bar because, as can be seen by reviewing the second to last paragraph prior to the judge’s signature on each of the Final Orders of Protection that were issued in the Defendant’s case (attached as Exhibit D), the Defendant’s firearms license was not revoked via the action of said Final Orders of Protection.
The second part of PL §400.00(1)(k), read more clearly, then goes on to state that a person who is “under a suspension or ineligibility order issued pursuant to the provisions of CPL §530.14” is ineligible to be issued a new firearms license, or have an existing firearms license renewed. Again, this cannot be read to require a Court to revoke a license pursuant to CPL §530.14(2)(a) because it is the revocation pursuant to CPL §530.14(2)(a) that renders the licensee ineligible under PL §400.00(11)(a) and PL §400.00(1)(k). This would again be putting the cart before the horse. And again, this appropriate reading of the two statutes is supported by the last line in PL §400.00(11)(a) which states “A license may be revoked or suspended as provided for in CPL §530.14.”
A review of the second to last paragraph prior to the judge’s signature on each of the Final Orders of Protection that were issued in the Defendant’s case (attached as Exhibit D) indicates that the Defendant has been rendered “ineligible to receive a firearm license during the period of this order.”
However, the question now being put to the Court via this application is whether this provision of the Orders of Protection is required, and if not, whether it is necessary or appropriate, and whether it can be modified or deleted. It is respectfully submitted that this provision is not required or necessary or appropriate, and it should be deleted or at least modified to allow the Defendant to possess his official on-duty firearm while on duty and engaged in his official duties as a police officer, and while supervised by his superiors in the NYPD.
Conclusion
The Defendant’s License
To Possess a Firearm
Should Not Be Revoked
Pursuant to CPL §530.14(2)(a)
As set forth above under the First and Second Conditions for Revocation pursuant to PL §400.00(11)(a), the only time revocation of an existing license is required pursuant to PL §400.00(11)(a) is when the license holder has been convicted of a felony or a serious offense as those terms are defined at PL §10.00(5) and PL §265.00(17). As set forth above, the Defendant has not been convicted of either a felony or a serious offense.
Additionally, despite the confusing and circular language of the statutes, it is clear that when issuing a final order of protection pursuant to CPL §530.14 on a non-felony or a non-serious offense conviction against a holder of a firearm license, the Court is not required to revoke the license based upon the language in PL §400.00(11)(a) that states “a licensee at any time becoming ineligible to obtain a license under this section shall operate as a revocation of the license.”
Accordingly, the Court should grant the relief that is sought by this motion.
B: Revocation of the Defendant’s
License to Possess a Firearm
Pursuant to CPL §530.14(2)(b):
CPL §530.14(2)(b) states the following:
Whenever an order of protection is issued pursuant to CPL §530.12(5) or CPL §530.13(4) of this article:
The court shall where the court finds a substantial risk that the defendant may use or threaten to use a firearm, rifles or shotguns unlawfully against the person or persons for whose protection the order of protection is issued,
-
- revoke any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immediate surrender of any or all firearms … owned or possessed
or
-
- suspend or continue to suspend any such existing license possessed by the defendant, order the defendant ineligible for such a license and order the immediate surrender … of any or all firearms … owned or possessed.
As set forth in Defendant’s sworn Affidavit, as well as in the Criminal Complaint, (Exhibit A), the Prosecutor’s Memo (Exhibit I), the narrative account of the interview of the ex-girlfriend and the transcription of the text messages between the Defendant and the ex-girlfriend, coupled with the evidence of the Defendant’s participation in and completion of anger management, domestic violence, and substance abuse counselling (Exhibits E, F and G), plus the Defendants positive work evaluations since the date of his arrest (Exhibit J), the Defendant is not a threat to anyone.
Conclusion
The Defendant’s License
To Possess a Firearm
Should Not Be Revoked
Pursuant to CPL §530.14(2)(b)
There is absolutely no evidence whatsoever in the record of these proceedings to support a legal finding that there is a substantial risk that the Defendant may use or threaten to use a firearm against the persons for whose protection the Orders of Protection were issued. Accordingly, the Court should grant the relief that is sought by this motion.
Point Three:
The Court Has the Legal
Authority to Amend and
Modify the Final Orders
Of Protection That Were
Issued by the Court at the
Time of Defendant’s Sentence
The authority of the Court to amend the Final Orders of Protection that were issued against the Defendant at the time of his sentence is contained in CPL §530.12 (6) and CPL §530.12 (15), and CPL §530.13 (5).
CPL §530.12 (6) states the following:
This Order of Protection can only be modified or terminated by the Court
* * * * * * *
Any subsequent amendment or revocation of such order shall be filed in the same manner as herein provided.
CPL §530.12 (15) states the following:
Any motion to vacate or modify an order of protection or temporary order of protection shall be on notice to the non-moving party…
CPL §530.13 (5) states the following:
Any subsequent amendment or revocation of such order shall be filed in the same manner as herein provided.
In the case of People v Nieves, 2 N.Y.3d 310, 317 (2004), the Court of Appeals observed the following:
Because sentencing courts are in the best position to amend permanent orders of protection, the better practice—and best use of judicial resources—is for a defendant seeking adjustment of such an order to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary. By returning to the issuing court, defendant can expeditiously obtain correction of the orders and, even if not successful, will have created a record that will facilitate appellate review.
See also People v. Lassitter, 18 N.Y.S.3d 300 (N.Y. Crim. Ct. 2015).
Conclusion
This Court possesses the statutory authority to amend the Final Orders of Protection issued at the time of the Defendant’s sentence, and in fact, the Court of Appeals has deemed the amendment of Orders of Protection at the level of the issuing court “the best use of judicial resources.”
Point Four:
It is in the Interest of Justice that the Court
In the Proper Exercise of its Discretion, Amend
And Modify the Final Orders of Protection
That were Issued by the Court at the Time of
The Defendant’s Sentence to Permit Him to
Possess his Official Duty NYPD Firearm
When Required to Do So Pursuant to His
Official Duties as a Police Officer for the
NYPD and While Supervised by said NYPD,
And to Retrieve said Firearm from the Proper
Authorities at His Place of Employment at the
Start of Every Tour of Official Duty, and to
Surrender said Firearm to the Proper Authorities
At his Place of Employment at the End of Every
Tour of Official Duty, and to Not Possess any
Other Firearm at any Time or Place During the
Period of the Amended Final Orders of Protection
In the case of People v Nieves, 2 N.Y.3d 310, (2004), the Court of Appeals stated the following:
(W)e conclude that an order of protection issued incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction—it is not a part of the sentence imposed.
In the case of People v. Lassitter, 50 Misc. 3d 264 (N.Y. Crim. Ct. 2015), the Court discussed several factors it considered upon an application to terminate of modify a final order of protection. In so doing, the Court made the following observations that are relevant to the Defendant’s application:
First Consideration:
(T)o grant relief, the court needs to be firmly convinced that the defendant does not pose a danger to the protected party.
Again, as set forth in Defendant’s sworn Affidavit, as well as in the Criminal Complaint, (Exhibit A), the Prosecutor’s Memo (Exhibit I), the narrative account of the interview of the ex-girlfriend and the transcription of the text messages between the Defendant and the ex-girlfriend, coupled with the evidence of the Defendant’s participation in and completion of anger management, domestic violence, and substance abuse counselling (Exhibits E, F and G), plus the Defendants positive work evaluations since the date of his arrest (Exhibit J), the Defendant is not a threat to anyone. There is absolutely no evidence whatsoever in the record of these proceedings to support a legal finding that there is a substantial risk that the Defendant may use or threaten to use a firearm against the persons for whose protection the Orders of Protection were issued.
Second Consideration:
It will be the rare case indeed where this Court will terminate a final order of protection against the complainant’s wishes.
At this time it is unknown what the several complainants’ wishes will be vis a vis the Defendant’s application, however, it is important to note that the Defendant is not seeking the termination of said Orders of Protection. He is merely seeking a very limited and reasonable modification of said Orders of Protection.
Third Consideration:
In order to persuade this Court that a valid final order of protection should be terminated against the wishes of the protected party, a defendant will have to demonstrate a compelling need for termination that substantially overrides the interest of the protected party in retaining the order.
Again, the wishes of the various complainants are unknown at this time, and the Defendant is not seeking a termination of the Orders of Protection, he is merely seeking a very limited and reasonable modification of said Orders of Protection. However, the Defendant has a compelling need for the modification of the Orders of Protection that warrants Court intervention. As stated in his affidavit and in his attorney’s affirmation, the Defendant will most certainly be terminated from his position as a police officer with the NYPD if he is unable to possess a firearm under any circumstances until December 9, 2016. The modification that he is seeking will only give him the limited authority to carry his official duty firearm while engage in his official duties as a police officer and while under the supervision of the NYPD. The modification he is seeking will require him to obtain his official duty firearm from his superiors at the start of his official duties and surrender it back to his superiors at the conclusion of his official duties.
Accordingly, the Defendant has demonstrated a compelling need, and proposed limited and reasonable accommodation to meet that compelling need.
Fourth Consideration:
This Court might be open to termination based on a less compelling need, if the record conclusively establishes that the protected party is so far out of the defendant’s reach as to render the order of protection unnecessary to protect her safety.
Again, the Defendant is not seeking termination of the Orders of Protection and had demonstrated a compelling need. Nonetheless, the protected parties will most certainly be beyond his reach insofar as, if his application is granted, he will only possess a firearm while engaged in his official duties as a police officer for the NYPD, and only while under the supervision of the NYPD. Further, he will most certainly lose his cherished employment with the NYPD if he has any further contact with any of the protected parties, which is an additional and compelling safeguard for their safety.
Conclusion
For all of the reasons set forth above, for all of the reasons set forth in the Defendant’s affidavit and his attorney’s affirmation, and based upon all of the evidence presented herein, the Court should granted the Defendant’s limited and reasonable request for a modification to the Final Orders of Protection that were issued at his sentence, and thereby allow him to continue on his path as a police officer for the City of New York.
Dated: September 21, 2022
Respectfully submitted,
_____________________
Attorney for the Defendant
Michael F. Dailey, Esq.
One Riverdale Avenue
Mailbox Eleven
Bronx, New York 10463
(718) 543-0100
mikedaileylaw@gmail.com
Call Now To See How I Can Help!
(718) 618-5995
