Defendant herein seeks a ruling 1) declaring Article 63-A of the New York State Civil Practice Law and Rules (CPLR) unconstitutional ^[FN1] and, 2) suppressing all tangible property obtained from defendant either a) during the execution of an Extreme Risk Protection Search Order or b) during the execution of a search warrant or, in the alternative, for a hearing.

On March 2, 2022, defendant's mother, C.L., notified the Suffolk County Police Department (SCPD) that her son, R., was suicidal and needed to be located. After locating R., the police transported him to the Stony Brook University Hospital for evaluation. Defense counsel asserts that defendant was released approximately one hour after admission.

That same day, Police Officer (PO) Travis Pfeffer of the SCPD applied ex parte for a Temporary Extreme Risk Protection Order (TERPO) pursuant to CPLR §6342. The application alleged, in sum, that on March 2, 2022, defendant text messaged his intention to kill himself by various means, including by drug overdose, hanging himself, or by inhaling car exhaust fumes. Defendant added that he had a gun in the event anyone called the police. C.L. stated that her son was very depressed (defendant's texts suggested that his relationship with his girlfriend had soured) and opined that "it's going to happen today." According to PO Sean Keenan's Supplementary Report, Ms. L. added that her son had "been to CPEP before for evaluation because she believed he would hurt himself." Ms. L. surrendered three rifles, a shotgun and ammunition to the police that belonged to R. The application did not contain physician statements or medical records or documentation to support that defendant suffered from a mental illness.

The TERPO application was granted on March 3, 2022 (Collins, J) and adjourned thereafter to March 10, March 21, April 19, and May 2, all of 2022, for the purpose of permitting defendant to appear with counsel at the final Extreme Risk Protection Order (ERPO) hearing.

The ERPO application was granted on May 2, 2022, after the Court found, by clear and convincing evidence, that defendant is and was likely to engage in conduct that would result in serious harm to himself or others as defined in Mental Hygiene Law §9.39 (a) (1) and (2). The Court also included a search order, which was executed by the Suffolk County Sheriff's Office on May 4, 2022.

Based on their findings during that search, a search warrant was signed on May 4, 2022, (Collins, J) which was executed the same day. Based on what was recovered during the execution of those searches, defendant was charged with the instant 31 count indictment involving firearms and controlled substances.

The Second Amendment to the United States Constitution provides that:

A well-regulated Militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

(See also NYCRL Art.2, §2). Despite that language, the right to bear arms is not absolute and may be limited by reasonable government restrictions. People v. Perkins, 62 AD3d 1160, 1161 (3rd Dep't. 2009), citing District of Columbia v. Heller, 554 US 570, 625 (2008).

In New York Rifle and Pistol Assoc., Inc. V. Bruen, — US —, 142 S.Ct. 2111, at 2123-24 (2022), the United States Supreme Court identified gun-licensing schemes it viewed as being either reasonable or unreasonable in the restrictions they placed on the Second Amendment's guarantees. In essence, the Bruen Court condemned statutory schemes where applicants needed to prove their entitlement to a pistol permit (such as in New York), "rather than presuming such entitlement absent objective, disqualifying factors." See, Haverstraw Town Police v. C.G., 190 NYS3d 588, 593-94 (Ulster Cty 2023).

Post-Bruen, the New York Legislature amended its gun-licensing scheme to employ a constitutionally appropriate "presumptive entitlement to gun ownership" approach as judged against a list of objective qualifying factors. Among those objective factors is the applicant's "good moral character," which is defined as "the essential character, temperament and judgement necessary to be entrusted with a weapon and to use it only in a manner that does not endanger oneself or others." Penal Law (PL) §400.00 (1) (b), effective July 1, 2022.

A person lacking in good moral character -as defined by the statute- may reasonably be denied a gun permit. As a corollary, a person in possession of firearms who subsequently, for whatever reason, falls short of good moral character may similarly be restricted from gun ownership by the State. The vehicle by which the State may accomplish this is an Article 63-A proceeding.

"[I]t is beyond dispute that New York has substantial, indeed compelling, governmental interests in public safety and crime prevention." People v. Tucker, 181 AD3d 103, 110 (4th Dep't. 2020). That being the case, "the appropriate level of scrutiny to be applied [in determining the constitutionality of the ERPO statute] is intermediate scrutiny, and a review of ...whether the restriction 'bears a substantial relationship to the achievement of an important governmental objective.'" Clearly, that is the case here.

As concluded in Anonymous Detective at Westchester County Police v. A.A., 71 Misc 3d 810, 821-822 (S. Ct., Westchester Cty 2021):

[The ERPO] law and its restrictions indeed bear a substantial relationship to the government's responsibility of protecting the public at large and preventing crime and serious injury to others from individuals who, by their conduct, raise serious concerns that, at that moment and for a limited time in the future, they should not be entrusted with a dangerous instrument.

Accordingly, as in Anonymous Detective at Westchester County Police, supra, this Court finds that the ERPO law withstands the constitutional challenge to it based upon the Second [*3]Amendment.

Counsel argues that "[a]s CPLR Article 63 adopts the definition of 'likelihood to result in serious harm' directly from MHL §9.39, it stands to reason that, prior to the issuance of a TERPO and/or ERPO pursuant to CPLR Article 63-a, similar procedural safeguards to that of MHL § 9.39 should be employed to ensure citizens' due process rights are protected." See, counsel's Affirmation, para. 40. The Court does not agree.

Initially, the Court notes that in a CPLR Article 63-A proceeding, gun rights may be suspended or infringed without requiring a finding of mental illness. See, Matter of J.B. v. K.S.G., 79 Misc 3d 296, 300-301 (Cortland Cty 2023). However, even in those cases where mental illness is at issue, failure to require evidence from a mental health expert does not render the statute unconstitutional. For sure, as stated in Haverstraw, supra, at 597, "[a]t [an ERPO] hearing, the absence of a requirement that the court receive expert mental health testimony cannot render the Red Flag Law invalid. Courts are well-equipped to evaluate evidence and assess such evidence against statutory standards." [In this regard, see CPLR §6342 (2)-enumerated relevant factors to be considered by the court].

Moreover, the rights afforded under MHL § 9.39 provide a constitutionally valid level of due process protection- but that is not to say that the protection afforded therein is the bare minimum permissible. A lesser level of protection might be employed yet nonetheless be found to pass constitutional muster.^[FN2]

Indeed, the core of due process is an "opportunity to be heard at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319, 333 (1976). Pursuant to Article 63-A, the issuance of even a TERPO must be preceded by a fact-finding determination, which may include recorded, sworn testimony. Moreover, the subject of the TERPO is entitled to a full evidentiary hearing within six business days of the initial finding, which can be adjourned at the request of the respondent (as was done here), but not the petitioner. Of course, the adjournments here were granted to enable defendant to obtain counsel if he wished, thus addressing counsel's Sixth Amendment concerns specific to this case.

Accordingly, the Court finds that the ERPO law does not violate due process.

"[T]he Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable. What is unreasonable, of course, depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." (Skinner v Railway Labor Executives' Assn., 489 US 602, 619, 109 S Ct 1402, 103 L Ed 2d 639 [1989] [internal quotation marks and citations omitted].) A balancing test is used to judge an intrusion on an individual's Fourth Amendment rights against the promotion of a legitimate governmental interest. (Id.) Exceptions have been made to the warrant requirement when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable."

Anonymous Detective at Westchester County Police, supra, at 817, quoting Griffin v Wisconsin, 483 US 868, 873 (1987).

"Furthermore, in circumstances where an individual is deemed to pose an extreme risk due to likelihood of substantial harm to self or others, a special needs exception also exists to promote a governmental interest of regulating conduct and access to firearms of these individuals."

Id, at 818.

The Court finds that the search conducted pursuant to the ERPO statute was reasonable. P.O. Keenan provided sworn testimony as to the basis for his belief that defendant was expressing suicidal ideations (defendant's text messages), and recounted defendant's mother's corroborating statements that her son was very depressed, that it (presumably his suicide) was "going to happen today," and that he had "been to CPEP before for evaluation because she believed he would hurt himself." Defendant's text, that he had a gun with him in the event anyone called the police, as well as the firearms that were turned over to the police by Mrs. L., only added to the exigencies of the situation.

These sworn statements of P.O. Sean Keenan, considered along with all the pleadings, supporting papers, and evidence submitted, were sufficient to establish probable cause for the approval of the ERPO search order. Moreover, defendant's claim, that he had a gun with him in the event anyone called the police, was not simply a veiled threat of harm to himself or to the police, but also suggested that he carried guns in vehicles and/or on his person. Thus, defendant's argument, that the search order was unconstitutionally broad, fails as the areas to be searched were not broader than was justified by the probable cause upon which the order was based. E.g., People v. Crupi, 172 AD3d 898, 899 (2nd Dep't. 2019).

"To be considered adequate, an application for a search warrant must provide the Magistrate with information sufficient to support a reasonable belief that evidence of a crime may be found in a certain place." People v. McCulloch, 226 AD2d 848, 849 (3rd Dept. 1996) [*4]citing People v Edwards, 69 NY2d 814 (1987).

A review of the "Application and Affidavit for Search Warrant" makes clear that ample cause existed to believe that evidence of a crime would be found within the residence and vehicles, including the affiant's first hand observations of drugs and weapons in the home at the time of the ERPO search and defendant's texted statement, that while away from the residence he possessed a gun.

Accordingly, defendant's motion is denied.

This shall constitute the decision and Order of the Court.