Supreme Court, Schoharie County, December 13, 2022

Susan J. Mallery, District Attorney, for petitioner.

Mark J. Gaylord for respondent.

On November 29, 2022, the petitioner, Susan Mallery, Schoharie County District Attorney, filed an application for a temporary extreme risk protection order (TERPO), which named, as the respondent, DP. The basis alleged in the application was "Torture of a cat by strangulation and physical abuse." In further support of the application, the petitioner attached screenshot photos from a video alleging that the respondent had strangled a cat. Petitioner's application also referenced that a deposition from JH as well as a criminal information were attached; however, those were not included in the filing. In any event, the court issued a TERPO and scheduled the matter for a final hearing.

On December 5, 2022, the parties appeared for the final extreme risk protection order hearing. The first witness called was Trooper M with the New York State Police. Trooper M testified that on November 22, 2002 (at approximately 6:30 p.m.), she was dispatched in response to a 911 call from a female caller in Middleburgh. Trooper M responded and interviewed JH (the caller). Trooper M described that JH was upset, shaking and crying. Trooper M relayed that, according to JH, she had located videos from her daughter's boyfriend's phone, DP, that showed DP physically abusing her cat.^[FN*] Trooper M also testified that she had developed [*2]information from JH that DP might be in possession of a handgun that he carried in his waistband and had "longer guns" in his bedroom.

Trooper M explained that she eventually responded to DP's residence in Middleburgh, New York and interviewed him concerning the alleged abuse of the cat and weapons possession. According to Trooper M, DP admitted to hitting the cat and said "[w]hat he did was wrong." Trooper M further testified that DP admitted having a gun two weeks prior, but was unable to pay for it and gave it back. Later, during cross-examination, Trooper M clarified that no weapons were recovered (at the residence of DP).

The next (and final) witness to testify was JH. JH explained that she was the owner of the cat (Nugget). JH identified DP as the individual in the videos who was alleged to have abused her cat. JH did not provide any testimony concerning firearms.{**78 Misc 3d at 252}

Following JH's testimony, the People rested. In turn, the defense moved to dismiss. Following closing statements, the court reserved decision.

CPLR article 63-A (also known as the "red flag" law) sets forth the basic procedure for police officers (among others) to request a court order to temporarily keep guns away from people who are likely to use them to hurt themselves or others. Such an order prohibits a respondent from purchasing or possessing a firearm, rifle, or shotgun for up to one year. The statute is intended to help prevent and reduce the number of mass shootings, suicides, and other acts of gun violence.

To obtain a final ERPO, the petitioner must establish that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others (see CPLR 6343 [2]). There must be either,

"1. substantial risk of physical harm to himself [or herself] as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that he [or she] is dangerous to himself [or herself], or

"2. a substantial risk of physical harm to other persons as manifested by homicidal or other violent behavior by which others are placed in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a]; see CPLR 6343 [2]).

In arriving at a decision "[t]he 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 [for the proceeding]" (CPLR 6343 [2]). In addition, the court must consider various factors or so-called red flags, taking into consideration the date when the event(s) occurred and the age of the person at the time (see id.; CPLR 6342 [2]). Such red flags include, but are not limited to, the following acts of the respondent:

"(a) a threat or act of violence or use of physical force directed toward self, the petitioner, or another person;

"(b) a violation or alleged violation of an order of protection;

"(c) any pending charge or conviction for an offense{**78 Misc 3d at 253} involving the use of a weapon;

"(d) the reckless use, display or brandishing of a firearm, rifle or shotgun;

"(e) any history of a violation of an extreme risk protection order;

"(f) evidence of recent or ongoing abuse of controlled substances or alcohol; or

"(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or [*3]dangerous instrument, or any ammunition therefor" (CPLR 6342 [2]).

A petitioner seeking a final order (ERPO) has the burden of proving his or her case by clear and convincing evidence (see CPLR 6343 [2]). This is a higher standard than the preponderance of the evidence standard (see Matter of Duane II. [Andrew II.], 151 AD3d 1129, 1130-1131 [3d Dept 2017]). The imposition of this higher standard reflects the fundamental constitutional right at issue, namely, the right to keep and bear arms (see US Const, 2d Amend; Matter of Capoccia, 59 NY2d 549, 553 [1983] [recognizing the applicability of this higher standard for cases involving the "denial of personal or liberty rights"]; Delgado v Sinagra, 72 Misc 3d 233, 236 [Ulster County Ct 2021] [imposing this higher standard in a case involving an application pursuant to CPL 530.14 (5) (b) for the return of long guns surrendered to the government]).

In order to satisfy this standard, the evidence must make it "highly probable that what [he or she] claims is what actually happened" (PJI 1:64; see Matter of Duane II. [Andrew II.], 151 AD3d at 1130-1131). This requires "evidence that is neither equivocal nor open to opposing presumptions, and it forbids relief whenever the evidence is loose, equivocal or contradictory" (Matter of Monto v Zeigler, 183 AD3d 1294, 1295 [4th Dept 2020] [internal quotation marks and citations omitted]).

Undoubtedly, petitioner presented highly disturbing (and graphic) evidence that pointed to the respondent's physical abuse of a cat. However, a review of the "red flag" factors that this court is obliged to consider upon this application do not include violence or threats of violence towards animals. The statute only includes "a threat or act of violence or use of physical force directed toward self, the petitioner, or another person," which was not alleged in this case. (CPLR 6342 [2]{**78 Misc 3d at 254} [a].) In turn, paragraphs (b)-(f) are inapplicable here as well as no order of protection is in issue (b); no weapon charge/conviction was made against the respondent (c); there is no allegation of reckless use/display of a firearm (d); there is no history of a violation of an extreme risk order (e); and there is no allegation of past or present abuse of drugs or alcohol (f). (See CPLR 6342 [2] [b]-[f].)

Indeed, a review of the petition, hearing testimony, and the various exhibits introduced finds that the only "red flag" factor advanced by the petitioner falls under paragraph (g), "evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor." In that vein, there was testimony from Trooper M that, during the course of her investigation, the complainant stated that respondent might be in possession of a handgun that he carried in his waistband and other guns supposedly kept in the bedroom of his house. In response to questioning from Trooper M, the respondent admitted that two weeks prior he had possessed a gun, but couldn't afford it and returned it. There was no indication as to what type of gun the respondent may have possessed. JH, the complainant, did not give any testimony concerning guns or dangerous weapons; she only testified about her cat.

The petitioner has failed to meet her burden by clear and convincing evidence (see CPLR 6343 [2]). Here, the only red flag factor raised centers entirely around the respondent's temporary possession of a firearm. Notably absent is any evidence that the respondent is likely to engage in conduct that would result in serious harm to himself or others. In brief, there was [*4]no evidence presented that the respondent presented a danger to himself. Moreover, to issue a final ERPO based on the theory that respondent is a danger to others, the record must contain proof of "homicidal" or "violent" conduct, and others must be placed "in reasonable fear of serious physical harm" (Mental Hygiene Law § 9.39 [a] [2]; see also CPLR 6343). No such proof exists on this record.

Accordingly, the petition is dismissed and the temporary emergency risk protection order is vacated.