County Court, Ulster County, April 20, 2021

Mikael A. Cohn, Kingston, for petitioner.

John J. Greco, Kingston, for respondents.

David J. Clegg, District Attorney (Gerard J. Van Loan of counsel), for the People.

On or about November 13, 2016, accusatory instruments were filed in the Town of Saugerties Justice Court accusing the petitioner of criminal contempt in the second degree (Penal Law § 215.50 [3]), a class A misdemeanor, and criminal mischief in the fourth degree (Penal Law § 145.00 [4]), a class A misdemeanor.

On June 28, 2017, the Town of Saugerties Justice Court (Andreassen, J.), pursuant to CPL 530.12, issued an order of protection which, in pertinent part, directed the petitioner to surrender to the Town of Saugerties Police Department certain long guns, and he did so.

On March 12, 2018, in satisfaction of the charges, the petitioner pleaded guilty to two counts of disorderly conduct (Penal Law § 240.20 [1]), a violation.

This was initially a proceeding brought under article 78 of the CPLR commenced by the petitioner on November 1, 2019, in the Supreme Court of Ulster County, seeking a judgment directing the respondents to return to the petitioner the long guns surrendered by him to the respondents in accordance with the aforementioned order of protection, it having expired on June 28, 2019. Although not named as respondents in the proceeding, the petitioner, as required by CPL 530.14 (5) (b), served copies of his notice of petition on the protected party (complainant) in the aforementioned criminal proceeding, the District Attorney, and the County Attorney.

On February 13, 2020, the Supreme Court (Cahill, J.) issued a decision and order which, in pertinent part, elected to treat the proceeding as an application pursuant to CPL 530.14 (5) (c) (actually [5] [b]) and scheduled a hearing thereon. Then, on March 5, 2020, the Supreme Court (Cahill, J.) issued a decision and order which, in pertinent part, directed the Clerk of the Supreme Court to transfer this proceeding to the County Court because the aforementioned statute requires that the application be made to a "court of record exercising criminal jurisdiction," and cancelled the hearing previously scheduled in the Supreme Court.

On May 12, 2020, the court informed the parties that it had concluded that a proceeding pursuant to CPLR article 78 was not the proper procedural vehicle to obtain the relief requested{**72 Misc 3d at 235} by the petitioner and had elected to treat his application as a motion pursuant to CPL 530.14 (5) (b), which permits the court to return his long guns to him "upon a written finding that there is no legal impediment to [his] possession of [them]," and consequently that the law applicable to CPLR article 78 proceedings is no longer applicable in this matter.

On August 13, 2020, a hearing on the issues raised by the petitioner was begun by this court, during which certain legal issues arose that resulted in the hearing being postponed so that the parties could submit to the court, in writing, their legal arguments with respect to such issues.

On September 1, 2020, the respondents moved, in pertinent part, for an order declaring that the petitioner has the burden of proof in this proceeding.

On November 12, 2020, this court issued a decision and order which, in pertinent part, ruled that the respondents have the burden of proving, by clear and convincing evidence, that there is a legal impediment to the return of the guns to the petitioner and directed that the hearing be continued.

On March 23, 2021, the hearing was continued and concluded that day.

CPL 530.14 (5) (b), in pertinent part, provides that "upon a written finding that there is no legal impediment to the [petitioner's] possession of a surrendered firearm, rifle or shotgun, any court of record exercising criminal jurisdiction may order the return of a firearm, rifle or shotgun" (emphasis supplied). Although subdivision (7) of that section provides that the petitioner has the right to a hearing before the court which issued the surrender order (in this case the Town [*3]of Saugerties Justice Court), either before or within 14 days after its issuance, there is no provision in the statute for a hearing to be held when the petitioner applies for an order directing the return of the surrendered guns.

Nevertheless, the right to due process of law—that is, to notice and an opportunity to be heard—guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and article I, § 6 of the Constitution of New York mandates that a hearing be held when so requested by a person seeking the return of his property held against his wishes by the government. But what the burden of proof is, or which party has the burden, is not specified in such constitutional provisions or in the Criminal Procedure Law.{**72 Misc 3d at 236}

However, because the petitioner's right to bear arms enshrined in the Second Amendment to the United States Constitution is at issue in this case, this court finds that he is presumptively entitled to the return of his surrendered guns unless there is a legal impediment thereto. This court further finds that, as with all rights guaranteed by a constitution, as opposed to those conferred by a federal or state statute, the government bears the burden of justifying, by clear and convincing evidence, its refusal to return the guns in question to the petitioner. (District of Columbia v Heller, 554 US 570 [2008]; McDonald v Chicago, 561 US 742 [2010].)

At the continuation of the hearing, conducted on March 23, 2021, the respondents conceded that there is no legal impediment to the return of the guns to the petitioner, but argued that because CPL 530.14 (5) (b) provides that a court may order the return of such guns, it is still in the court's discretion whether or not to do so. However, if the use of the word "may" in the statute was intended by the legislature to permit a court to deny the return of guns notwithstanding the absence of any legal impediment thereto, this court finds that part of the statute unconstitutional. "May" should read "shall."

Accordingly, it is hereby ordered that the petitioner's motion is granted; and it is further ordered that the respondents return the long guns in question to the petitioner forthwith.