Supreme Court, Erie County, October 6, 2020

Joseph J. Terranova for respondent.

Samuel A. Alba, Village Attorney, for petitioner.

The Village of Depew Police Department (hereinafter, {**70 Misc 3d at 465}petitioner) filed this petition pursuant to CPLR article 63-a, commonly known as the "Red Flag" law (L 2019, ch 19, § 1), seeking an extreme risk protection order (hereinafter, ERPO) to retain certain weapons seized from the home of the respondent, Jeffrey Lloyd. After responding to a 911 call from his house, the petitioner eventually sent respondent to the Erie County Medical Center for examination under the authority of Mental Hygiene Law § 9.41. He has since returned home.

While respondent was at the hospital, petitioner removed from the home a number of weapons, including three rifles, three shotguns, five longbows (with arrows) and one crossbow. This court granted a temporary order permitting retention of the weapons by the petitioner pending a full hearing on this petition.

In discussions with counsel for both parties as to the procedure to be followed and the [*2]scheduling of the hearing, it was agreed that the longbows with arrows are not firearms within the meaning of the ERPO statute and were to be returned to the respondent. It was also agreed that rifles and shotguns are specifically included in the statute and are a proper subject of such a petition.

There remains the issue of whether the respondent's crossbow is a weapon included in the term "firearm" as used in the ERPO statute. The respondent opposes the inclusion of the crossbow as a firearm subject to such seizure and moves this court for its return to the respondent on that basis alone. The petitioner contends that it is properly considered a firearm covered by the statute.

In interpreting a statute "[i]t is fundamental that a court . . . should attempt to effectuate the intent of the Legislature" (Matter of Shannon, 25 NY3d 345, 351 [2015], quoting Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]).

"As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof" (Majewski, 91 NY2d at 583). If the language is ambiguous, the court may examine the legislative history (Shannon at 351, quoting People v Ballman, 15 NY3d 68, 72 [2010]).

In the subject case, the words of the statute are not ambiguous. It is true that a crossbow can be a dangerous weapon (People v Aquart, 171 Misc 2d 114 [1997]). However, the{**70 Misc 3d at 466} legislature chose to use the term "firearm" and not the word "weapon" as well as "shotguns and rifles," as subjects of the ERPO law.

Penal Law § 265.00 (3) and (15) defines a "firearm" and a "loaded firearm" and contemplates a weapon that uses ammunition with the energy of explosion (see also Penal Law § 265.00 [20]).

The category of "firearms" used in the ERPO statute was intended to cover guns other than rifles or shotguns. Those would include handguns and other types of guns usually associated with the armed forces. Another state statute provides guidance, as well. Environmental Conservation Law § 11-0931 (4) (a) and (b) distinguishes a firearm from a crossbow in setting restrictions on the discharge of such weapons.

Since the ERPO statute is one used for the confiscation of private property, its interpretation should not be expansively construed. The respondent's crossbow is not a "firearm" subject to seizure under the ERPO statute. Respondent's motion that the ERPO statute does not apply to the crossbow is therefore granted, and it shall be returned to the respondent forthwith.

The court will await final submissions by counsel for a decision on the request for a final ERPO order, as to the shotguns and rifles at issue, now that the hearing has been completed.