Published on:

Court Discusses Violation of Order of Protection


On 22 February 1997, the defendant, after a parental visit, brought his children directly to his then wife (now former wife) in contravention to a court order of protection (hereinafter COOP). Thereafter, a verbal and physical confrontation occurred between the defendant and his wife. The COOP provided that the defendant was to return his children to the local police station.
The defendant was indicted and tried for crimes involved in this incident and another.

On 24 March 1999 after a jury trial, the defendant was found guilty of assault in the second degree, two counts of assault in the third degree, and two counts of criminal contempt in the first degree.

After trial and prior to sentence, defendant successfully moved this court to set aside the guilty verdicts as to all assault counts. This court held that “the evidence adduced at trial was devoid of legal sufficiency to support the verdict finding that the defendant caused `physical injury'” to his former wife and former father-in-law. On 15 September 1999, the defendant was sentenced on the criminal contempt in the first degree convictions to five years’ probation (the first year to year and one half on intensive supervised probation) and included, as a special condition, 500 hours of community service. A New York Criminal Lawyer said the court also issued a COOP which is to expire on 14 September 2004.

Now, the defendant probationer applies, through the Probation Department, for a limited certificate of relief from disabilities (hereinafter called CRD) which would authorize him “to apply for hunting licenses and use long gun solely in governmental recognized hunting areas outside of New York City, and solely during designated autumn hunting seasons.”
The defendant has completed his community service with high praise from the office where he had worked and is a first time offender who would otherwise be eligible for a CRD. He continues to serve his probationary sentence.

This application for a CRD requires the court to consider three federal criminal statutes, contradictory United States Court of Appeals decisions, contradictory New York lower court decisions, and novel issues apparently not decided by any court.

The New York’s Felon-in-Possession Law bars the issuance to or renewal of a firearm license to a person who has been convicted of a “felony”. This statutory bar applies to firearms as defined in Penal Law. A rifle is not a firearm unless “one of the barrels is less than sixteen inches in length”. Thus, there is no prohibition against a felon or a person who is under a COOP from possessing a hunting rifle. Therefore, a CRD is not necessary for the possession of a hunting rifle under New York State law.

The CRD may be helpful to eliminate criminal liability for numerous federal weapon possession crimes. A Suffolk County Criminal Lawyer says that in order to determine whether to issue a CRD, the court must decide whether the issuance of a CRD would remove the federal bar against possession of a firearm. If the defendant still could not lawfully possess the hunting rifle even after the court’s issuance of a CRD, then the court would be deceiving the defendant as to the legality of his possession of a weapon, possibly be violating the Due Process Clause of the US Constitution and performing a worthless act. Under those circumstances, the court believes that it would be prohibited from issuing the CRD. Even if permitted, the court would not and should not perform a useless act.

On the other hand, under the Federal Felon-in-Possession Law, it is unlawful for any person who has been convicted of a crime punishable by imprisonment for a term exceeding one year to possess in or affecting commerce any firearm or ammunition, or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
The term `firearm’ means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive”. The term “firearm” includes hunting rifles.

The court has investigated and has found that, as argued by the defendant on the brand of rifle wanted, while Remington does manufacture hunting rifles in Ilion, New York, some of the parts used are shipped from other states. Often major components are also manufactured in New York, but shipped to other states for processing before return to New York for sale. Thus, it is clear that the jurisdictional predicate of traveling in interstate commerce is met.

Now, since the defendant has been convicted of a felony, he is subject to the provisions of 18 USC § 922 (g) (1). However, 18 USC § 921 (a) (20) provides for an exception to the felon-in-possession prohibition and an exception to that exception known as the “unless” clause.
On the Exception to Definition of Conviction, the status of “felon” is removed for purposes of felon-in-possession gun possession crime if the conviction has been expunged or the state has “restored” a felon’s “civil rights.” The determination of whether a state has restored a felon’s civil rights is determined by the law of the state of conviction. The state need not restore all civil rights, but must “substantially” restore a felon’s rights. Nonetheless all core civil rights must be restored in order to obtain the benefit of this exemption. While the statute does not define the core civil rights, federal courts have defined the three core civil rights as the right to vote, the right to serve on a jury and the right to hold public office.

The herein court must determine what civil rights are lost in New York by a felon, and then, if these rights can be restored by a CRD.

Under Civil Rights Law, a convicted person who is incarcerated for a day or longer in a state correctional institution loses all civil rights during the period of incarceration. Once an incarcerated convicted person is released some of the civil rights are restored.

In this case, the defendant was never incarcerated. Thus, Civil Rights Law does not apply to him.

In New York, a felon who was never incarcerated does not lose the right to vote. This court has not found any statute that provides for the loss of the right to hold public office by a felon who was never incarcerated. However, a felon, whether incarcerated or not, loses the right to serve on a jury.

Thus, the CRD is not a document restoring civil rights. The CRD is legally insufficient to permit weapon possession by a former felon. The document restoring a defendant’s rights must restore also the defendant’s right to possess all weapons.

The “Unless” Clause further states that a restoration of civil rights is effective “unless such pardon, expungement provides that the person may not possess, or receive a firearm.” In effect, the statute provides that even if a felon should have all civil rights restored, that is insufficient to comply with the exemption if the document restoring those rights prohibits possession of a weapon.

As stated above, this defendant is ineligible to possess certain firearms. Thus, unless a CRD relieves a defendant of all firearm restraints, then a felon would be prohibited from possessing any firearm.

One nisi prius court has held that a CRD cannot relieve a defendant from firearm restrictions imposed by New York on a felon. The court did not explain its reasoning. It merely cited the Penal Law. Dicta in an Appellate Division decision, all indicate that a CRD may remove the automatic bar contained in Penal Law to license a felon.

The court finds that it has the right to eliminate the automatic forfeiture of the right to a pistol or gun license. However, the CRD will not eliminate the firearm disability that must be done by the licensing agency. Thus, the CRD in effect authorizes a felon to apply to the licensing agency. The licensing agency cannot automatically deny the right to the license, but may do so in its discretion. The CRD “restores” the felon’s civil rights, but continues the bar of possessing a weapon until the licensing agency authorizes possession. As such the “unless” clause of 18 USC § 921 (a) (20) comes into effect because in New York the document restoring the civil rights also contains a bar to possession of a weapon.

The court holds that even if the court were to issue a CRD and the licensing agency permitted the possession of all firearms, the defendant’s possession of a weapon that at some time traveled in interstate commerce would constitute a federal crime.

The court holds that it is barred from granting the defendant’s request, or, if not prevented by law, and should not perform a useless act.

The law provides that “it shall be unlawful for any person who has been convicted in any court of a misdemeanor crime of domestic violence to possess in or affecting commerce, any firearm”. The term `misdemeanor crime of domestic violence’ means an offense that (i) is a misdemeanor under Federal or State 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.

To establish the “use or attempted use of physical force element” all that is necessary is that the individual be convicted of a crime containing an element of an act “which was intended to cause pain or injury to another, coupled with the apparent ability to execute said act”. Physical force may be characterized as power, violence, or pressure directed against another person’s body.

In this case, the court vacated the assault in the third degree conviction because the People failed to make out a prima facie case that the victim suffered “physical injury.”

The rule requires a court, upon setting aside a verdict, to take the same action as the appropriate appellate court; that when an appellate court determines that the trial evidence is not legally sufficient to support the verdict for a particular offense, but is sufficient to support a lesser included offense, then the appellate court may reduce the conviction to the lesser included offense.

In this case, the court should have reduced the defendant’s conviction to the lesser included offense of attempted assault in the third degree, a misdemeanor. Attempted assault in the third degree would qualify under the federal statute as a domestic violence misdemeanor.
Because of this error, the court, in determining whether to issue the CRD, will consider the defendant as if he were convicted of a domestic violence misdemeanor.

Thus, a defendant in New York who has only been convicted of a domestic violence misdemeanor is ineligible for a CRD which would restore the right to possess any type of weapon.

18 USC § 922 (g) (8) bans gun possession for those subject to a protective order. This statute contains three elements: (1) an order of protection preceded by a hearing and notice containing certain restrictions and findings; (2) knowing possession of a firearm; and (3) possession affecting interstate commerce.

The elements of knowing, possession, and interstate commerce are identical to what this court has stated for the felon-in-possession statute.

The element of hearing and notice is fulfilled when a defendant has had an opportunity to participate and be heard in the determination of the issuance of the protective order.
In this case, the defendant was present at sentencing, was aware that the court could issue a COOP, and was asked if he or his counsel wished to say anything. Further, defense counsel was given the opportunity to read the probation report, which contained a request by the victim for a COOP. The requirement of hearing and notice was fulfilled.

This section has no exceptions for a convicted individual who has had civil rights restored. The apparent reason is, as held in a landmark case: “Possession of firearms by persons laboring under the yoke of anti-harassment or anti-stalking restraining orders is a horse of a different hue. The dangerous propensities of persons with a history of domestic abuse are no secret, and the possibility of tragic encounters has been too often realized. We think it follows that a person who is subject to such an order would not be sanguine about the legal consequences of possessing a firearm, let alone of being apprehended with a handgun in the immediate vicinity of his spouse.”

Hence, the defendant, for as long as the COOP is in effect, is barred by law from possessing a firearm, including a hunting rifle.

Now, even if the federal statutes were not a bar to possession of a firearm by this defendant, the court in exercising its discretion cannot shut its eyes to the realities of life and the policies that have driven the federal statutes previously discussed.

The presence of a gun dramatically increases the likelihood that domestic violence will escalate into murder.

In performing lethality assessments, the possession of a gun is a main factor that significantly increases the risk of homicide. The herein court notes that guns and domestic violence are often a deadly combination.

Moreover, in the present case, the court has learned of times that the defendant acted violently against the victim. The Probation Department recommends against issuing the CRD. The probation report indicates prior acts of violence against the defendant’s children.

The court, were it to have had discretion, would decline to grant the certificate of relief of civil disabilities that would permit the probationer “to apply for hunting licenses and use long guns solely in governmental recognized hunting areas outside of New York City, and solely during designated autumn hunting seasons.” This is especially true where, as here, not only must the court grant relief for a hunting rifle, but must also grant relief for all types of weapons.

The application is denied to the extent that the defendant requests permission to apply for a hunting license and to possess and use a rifle. The court does, however, grant probationer a CRD for employment purposes only.

When someone is convicted of a felony, whether it be from sex crimes, burglary or assault, certain rights are stripped off a person and some of these rights may or may not be restored. This situation may arise even in a misdemeanor domestic violence. To know more of the legal remedies available in these situations, contact Stephen Bilkis & Associate for a free consult.

Contact Information