Arrest without a warrant; by police officer; when and where authorized

§ 140.10 Arrest without a warrant; by police officer; when and where\n authorized.\n 1. Subject to the provisions of subdivision two, a police officer may\narrest a person for:\n (a) Any offense when he or she has reasonable cause to believe that\nsuch person has committed such offense in his or her presence; and\n (b) A crime when he or she has reasonable cause to believe that such\nperson has committed such crime, whether in his or her presence or\notherwise.\n 2. A police officer may arrest a person for a petty offense, pursuant\nto subdivision one, only when:\n (a) Such offense was committed or believed by him or her to have been\ncommitted within the geographical area of such police officer's\nemployment or within one hundred yards of such geographical area; and\n (b) Such arrest is made in the county in which such offense was\ncommitted or believed to have been committed or in an adjoining county;\nexcept that the police officer may follow such person in continuous\nclose pursuit, commencing either in the county in which the offense was\nor is believed to have been committed or in an adjoining county, in and\nthrough any county of the state, and may arrest him or her in any county\nin which he or she apprehends him or her.\n 3. A police officer may arrest a person for a crime, pursuant to\nsubdivision one, whether or not such crime was committed within the\ngeographical area of such police officer's employment, and he or she may\nmake such arrest within the state, regardless of the situs of the\ncommission of the crime. In addition, he or she may, if necessary,\npursue such person outside the state and may arrest him or her in any\nstate the laws of which contain provisions equivalent to those of\nsection 140.55.\n 3-a. A police officer shall not arrest any person for any legally\nprotected health activity as defined in section 570.17 of this chapter.\n * 4. Notwithstanding any other provisions of this section, a police\nofficer shall arrest a person, and shall not attempt to reconcile the\nparties or mediate, where such officer has reasonable cause to believe\nthat:\n (a) a felony, other than subdivision three, four, nine or ten of\nsection 155.30 of the penal law, has been committed by such person\nagainst a member of the same family or household, as member of the same\nfamily or household is defined in subdivision one of section 530.11 of\nthis chapter; or\n (b) a duly served order of protection or special order of conditions\nissued pursuant to subparagraph (i) or (ii) of paragraph (o) of\nsubdivision one of section 330.20 of this chapter is in effect, or an\norder of which the respondent or defendant has actual knowledge because\nhe or she was present in court when such order was issued, where the\norder appears to have been issued by a court of competent jurisdiction\nof this or another state, territorial or tribal jurisdiction; and\n (i) Such order directs that the respondent or defendant stay away from\npersons on whose behalf the order of protection or special order of\nconditions has been issued and the respondent or defendant committed an\nact or acts in violation of such "stay away" provision of such order; or\n (ii) The respondent or defendant commits a family offense as defined\nin subdivision one of section eight hundred twelve of the family court\nact or subdivision one of section 530.11 of this chapter in violation of\nsuch order of protection or special order of conditions.\n The provisions of this subdivision shall apply only to orders of\nprotection issued pursuant to sections two hundred forty and two hundred\nfifty-two of the domestic relations law, articles four, five, six and\neight of the family court act and section 530.12 of this chapter,\nspecial orders of conditions issued pursuant to subparagraph (i) or (ii)\nof paragraph (o) of subdivision one of section 330.20 of this chapter\ninsofar as they involve a victim or victims of domestic violence as\ndefined by subdivision one of section four hundred fifty-nine-a of the\nsocial services law or a designated witness or witnesses to such\ndomestic violence, and to orders of protection issued by courts of\ncompetent jurisdiction in another state, territorial or tribal\njurisdiction. In determining whether reasonable cause exists to make an\narrest for a violation of an order issued by a court of another state,\nterritorial or tribal jurisdiction, the officer shall consider, among\nother factors, whether the order, if available, appears to be valid on\nits face or whether a record of the order exists on the statewide\nregistry of orders of protection and warrants established pursuant to\nsection two hundred twenty-one-a of the executive law or the protection\norder file maintained by the national crime information center;\nprovided, however, that entry of the order of protection or special\norder of conditions into the statewide registry or the national\nprotection order file shall not be required for enforcement of the\norder. When a special order of conditions is in effect and a defendant\nor respondent has been taken into custody pursuant to this paragraph,\nnothing contained in this paragraph shall restrict or impair a police\nofficer from acting pursuant to section 9.41 of the mental hygiene law;\nor\n (c) a misdemeanor constituting a family offense, as described in\nsubdivision one of section 530.11 of this chapter and section eight\nhundred twelve of the family court act, has been committed by such\nperson against such family or household member, unless the victim\nrequests otherwise. The officer shall neither inquire as to whether the\nvictim seeks an arrest of such person nor threaten the arrest of any\nperson for the purpose of discouraging requests for police intervention.\nNotwithstanding the foregoing, when an officer has reasonable cause to\nbelieve that more than one family or household member has committed such\na misdemeanor, the officer is not required to arrest each such person.\nIn such circumstances, the officer shall attempt to identify and arrest\nthe primary physical aggressor after considering: (i) the comparative\nextent of any injuries inflicted by and between the parties; (ii)\nwhether any such person is threatening or has threatened future harm\nagainst another party or another family or household member; (iii)\nwhether any such person has a prior history of domestic violence that\nthe officer can reasonably ascertain; and (iv) whether any such person\nacted defensively to protect himself or herself from injury. The officer\nshall evaluate each complaint separately to determine who is the primary\nphysical aggressor and shall not base the decision to arrest or not to\narrest on the willingness of a person to testify or otherwise\nparticipate in a judicial proceeding.\n The protected party in whose favor the order of protection or\ntemporary order of protection is issued may not be held to violate an\norder issued in his or her favor nor may such protected party be\narrested for violating such order.\n Nothing contained in this subdivision shall be deemed to (a) require\nthe arrest of any person when the officer reasonably believes the\nperson's conduct is justifiable under article thirty-five of title C of\nthe penal law; or (b) restrict or impair the authority of any\nmunicipality, political subdivision, or the division of state police\nfrom promulgating rules, regulations and policies requiring the arrest\nof persons in additional circumstances where domestic violence has\nallegedly occurred.\n No cause of action for damages shall arise in favor of any person by\nreason of any arrest made by a police officer pursuant to this\nsubdivision, except as provided in sections seventeen and eighteen of\nthe public officers law and sections fifty-k, fifty-l, fifty-m and\nfifty-n of the general municipal law, as appropriate.\n * NB Repealed September 1, 2027\n 5. Upon investigating a report of a crime or offense between members\nof the same family or household as such terms are defined in section\n530.11 of this chapter and section eight hundred twelve of the family\ncourt act, a law enforcement officer shall prepare, file, and translate,\nin accordance with section two hundred fourteen-b or eight hundred forty\nof the executive law, a written report of the incident, on a form\npromulgated pursuant to section eight hundred thirty-seven of the\nexecutive law, including statements made by the victim and by any\nwitnesses, and make any additional reports required by local law\nenforcement policy or regulations. Such report shall be prepared and\nfiled, whether or not an arrest is made as a result of the officers'\ninvestigation, and shall be retained by the law enforcement agency for a\nperiod of not less than four years. Where the reported incident involved\nan offense committed against a person who is sixty-five years of age or\nolder a copy of the report required by this subdivision shall be sent to\nthe New York state committee for the coordination of police services to\nelderly persons established pursuant to section eight hundred\nforty-four-b of the executive law. Where the reported incident involved\nan offense committed by an individual known by the law enforcement\nofficer to be under probation or parole supervision, he or she shall\ntransmit a copy of the report as soon as practicable to the supervising\nprobation department or the department of corrections and community\nsupervision.\n 6. (a) (i) A police officer who responds to a report of a family\noffense as defined in section 530.11 of this chapter and section eight\nhundred twelve of the family court act:\n (1) may take temporary custody of any firearm, rifle, electronic dart\ngun, electronic stun gun, disguised gun, imitation weapon, shotgun,\nantique firearm, black powder rifle, black powder shotgun, or\nmuzzle-loading firearm that is in plain sight or is discovered pursuant\nto a consensual or other lawful search;\n (2) shall take temporary custody of any firearm, rifle, electronic\ndart gun, electronic stun gun, disguised gun, imitation weapon, shotgun,\nantique firearm, black powder rifle, black powder shotgun, or\nmuzzle-loading firearm that is in the possession of any person arrested\nfor the commission of a family offense or suspected of its commission;\nand\n (3) shall take temporary custody of any firearm, rifle, electronic\ndart gun, electronic stun gun, disguised gun, imitation weapon, shotgun,\nantique firearm, black powder rifle, black powder shotgun, or\nmuzzle-loading firearm that is in plain sight or is discovered pursuant\nto a consensual or other lawful search if any one of the following\ncircumstances is present:\n A. the victim responds in the affirmative to the suspect threats\nquestions in the victim interview section in the prior history section\nof the New York state standardized domestic incident report (DIR) form;\nor\n B. the victim responds in the affirmative to any of the lethality\nassessment questions in the prior history section of the New York state\nstandardized domestic incident report (DIR) form; or\n C. any responding officer has a reasonable belief that it is necessary\nto remove such weapon to protect the victim or other persons present, or\nto prevent risk of further violence or threat.\n (ii) An officer who takes custody of any weapon pursuant to this\nparagraph shall also take custody of any license to carry, possess,\nrepair, and dispose of such weapon issued to the person arrested or\nsuspected of such family offense. The officer shall deliver such weapon\nand/or license to the appropriate law enforcement officer as provided in\nsubparagraph (f) of paragraph one of subdivision a of section 265.20 of\nthe penal law.\n (b) Upon taking custody of weapons or a license described in paragraph\n(a) of this subdivision, the responding officer shall give the owner or\nperson in possession of such weapons or license a receipt describing\nsuch weapons and/or license and indicating any identification or serial\nnumber on such weapons. Such receipt shall indicate where the weapons\nand/or license can be recovered and describe the process for recovery\nprovided in paragraph (e) of this subdivision.\n (c) Not less than one hundred twenty hours after effecting such\nseizure, and in the absence of (i) an order of protection, an extreme\nrisk protection order, or other court order prohibiting the owner from\npossessing such a weapon and/or license, or (ii) a pending criminal\ncharge or conviction which prohibits such owner from possessing such a\nweapon and/or license, and upon a written finding that there is no legal\nimpediment to the owner's possession of such a weapon and/or license,\nthe court or, if no court is involved, licensing authority or custodian\nof the weapon shall direct return of a weapon not otherwise disposed of\nin accordance with subdivision one of section 400.05 of the penal law\nand/or such license taken into custody pursuant to this section.\n (d) If any other person demonstrates that such person is the lawful\nowner of any weapon taken into custody pursuant to this section, and\nprovided that the court or, if no court is involved, licensing authority\nor custodian of the weapon has made a written finding that there is no\nlegal impediment to the person's possession of such a weapon, such\ncourt, licensing authority or custodian of the weapon, as the case may\nbe, shall direct that such weapon be returned to such lawful owner.\n (e) All weapons in the possession of a law enforcement official\npursuant to this section shall be subject to the provisions of\napplicable law, including but not limited to subdivision six of section\n400.05 of the penal law; provided, however, that any such weapon shall\nbe retained and not disposed of by the law enforcement agency for at\nleast two years unless legally transferred by the owner to an individual\npermitted by law to own and possess such weapon.\n