Supreme Court, Erie County

Decided on June 6, 2025

Index No. 600327/2024

John J. DelMonte, J.

[*1]

PROCEDURAL HISTORY AND BACKGROUND

The pending matter before the Court is an "Application" filed by Lt. Colonel XXXXX (Ret.) ("Applicant") for the return of certain "firearms, shotguns and rifles" (hereafter collectively and singularly referred to as the "firearms") seized from his possession last year. Applicant is the father of the minor respondent in the above-captioned Emergency Risk Protection Order ("ERPO") proceeding which was commenced with the filing of a Petition pursuant to CPLR Article 63-A on June 5, 2024, with the issuance of a Temporary ERPO ("TERPO") on the same date.^FN1 The TERPO further allowed for the search and seizure of firearms from the respondent's residence, to wit, the Applicant's home in Orchard Park, New York. The Applicant fully cooperated with the search and seizure conducted by the Petitioners which resulted in the seizure of 23 firearms found to be located in various storage depositories located throughout the residence. A final ERPO was issued on September 13, 2024, with a one-year retroactivity for expiration on June 5, 2025.

An Application pursuant to CPLR § 6343 (5) (b) was filed by Applicant for the return of the seized firearms on or about October 18, 2024. The Court scheduled and conducted a hearing on November 22, 2024, in accordance with the legislative mandate under CPLR §§ 6343 (5) (b) and 6344 (2), to examine the Applicant's eligibility and entitlement to have the firearms returned upon a showing that he "is the lawful owner . . . and that the court has made a written finding that there is no legal impediment to the person's possession of a surrendered or removed firearm, rifle or shotgun . . . " Id.

At the hearing the Applicant testified to his acquisition and ownership of the subject firearms, supported by multiple documentary materials which were offered and admitted into evidence without objection. The specific relevant documents for purposes of this hearing that were received and marked into the record were Exhibits A, B, G, H, I and J. Most notably are [*2]Exhibits H and J which provide a detailed historical summary of acquisition and possession of the firearms by the Applicant (Ex. H) and documentary back-up materials such as purchase receipts, seller/vendor emails, credit card statements reflecting purchases, and owner's manuals.

The only other testimonial witness was the Applicant's father, XXXXX, who was presented to provide testimony about the sourcing and origin of many of the subject firearms (14 in all) that he acquired and gifted to the Applicant over the years. The father's testimony (in part reliably refreshed with reference to Exhibit H) on the generational family acquisition and transfer of several of the firearms (some going as far back as the 1950's and 1960's with one originating from the Applicant's paternal grandfather) was substantially trustworthy and credible.

Of pointed interest, however, was the father's equally credible, genuine and straightforward testimony relating to his inability to verify the origin of acquisition to establish "lawful ownership" of two firearms originally acquired by his stepson ("XXXXX," now deceased, to wit, [i] a Winchester 70 30.06 and [ii] a New England Firearms Tracker SB ) that were gifted to the father in 2007, and which he then gifted to the Applicant in 2023. Similarly, the Applicant's truthful and genuinely plain-spoken testimony about receiving two of the subject firearms from his great-aunt XXXXX after the death of his great-uncle XXXXX in and around 1996 by way of a non-probate or other estate administration gift presented a question of appropriate transfer to establish lawful ownership.

At the close of the hearing the parties were given the opportunity to make post-hearing submissions, particularly to address and provide authority, among other things, on the above-described unconventional sources of acquisition of some of the subject firearms (to wit, unknown origin of lawful acquisition by stepson XXXXX and the non-estate gifting by great-aunt XXXXX), along with the non-titled or other documentary intra-familial transfers of multiple other objects among the 23 subject firearms.

As of the date of issuance of this Decision and Order the final ERPO has not been renewed or extended and no application for such renewal or extension has been submitted for the Court's consideration. The post-hearing submission window of 45 days for Applicant's submission was extended to the end of January 2025, and the Petitioners' time to file any papers in opposition to the relief requested in the Application closed 45 days thereafter without further extension of any submissions thereafter. The Court has received and reviewed the hearing transcript and all the filed post-hearing submission affirmation(s), exhibits and memorandum of law. From a reading of Article 63-A there is no reference or provision indicating that the expiration of the ERPO sua sponte voids-out or dissolves the prior seizure of the firearms . . . the "application" for their return must still be considered and ruled upon with a written finding. Indeed, the same elements for the return of a confiscated firearm to a respondent upon the expiration of an ERPO are separately reiterated pursuant to CPLR § 6346 (2), inter alia . . .

" 2. Upon expiration of a protection order issued pursuant to this article and upon written application of the respondent who is the subject of such order, with notice and opportunity to be heard to the petitioner and every licensing officer responsible for issuance of a firearm license to the subject of the order pursuant to article four hundred of the penal law, and upon a written finding that there is no legal impediment to the respondent's possession of a surrendered firearm, rifle or shotgun, the court shall order the return of a firearm, rifle or shotgun not otherwise disposed of in accordance with subdivision one of section sixty-three hundred forty-four of this [*3]article."^FN2

Accordingly, the same measure of review and action by the court is inferable to serve as a predicate to the return of firearms seized from others as provided in §§ 6343 and 6344, infra, after the expiration of the ERPO.

STANDARD OF REVIEW AND LEGAL ANALYSIS

This is an "application" by a non-party in this proceeding.^FN3 The right of a non-respondent to seek the return of any firearm seized from them is explicitly referenced under two separate subsections in CPLR article 63-A, to wit, §§ 6343 (5) (b) and 6344 (2) which are fundamentally identical in their wording:

NY C.P.L.R. 6343 (5) (McKinney)

(b) If any other person demonstrates that he or she is the lawful owner of any firearm, rifle or shotgun surrendered or removed pursuant to a protection order issued in accordance with this article, and provided that the court has made a written finding that there is no legal impediment to the person's possession of a surrendered or removed firearm, rifle or shotgun, the court shall direct that such firearm, rifle or shotgun be returned to such lawful owner and inform such person of the obligation to safely store such firearm, rifle, or shotgun in accordance with section 265.45 of the penal law.

NY C.P.L.R. 6344 (McKinney)

2. If the location to be searched during the execution of a temporary extreme risk protection order or extreme risk protection order is jointly occupied by two or more parties, and a firearm, rifle or shotgun located during the execution of such order is owned by a person other than the respondent, the court shall, upon a written finding that there is no legal impediment to the person other than the respondent's possession of such firearm, rifle or shotgun, order the return of such firearm, rifle or shotgun to such lawful owner and inform such person of their obligation to safely store their firearm, rifle, or shotgun in accordance with section 265.45 of the penal law.

Italics added for emphasis on commonality of verbiage.

Though the statute has multiple references to a "written finding" by the court on the subject of returning seized firearms, it is silent with respect to what evidentiary burden of proof is required to determine the finding(s) needed to satisfy the dual threshold issues of "lawful [*4]owner(ship)" and "no legal impediment" to the return of the firearm, and which party is charged with carrying that burden of proof. Under the common law and statutory interpretation of the CPLR, the moving party seeking the requested relief (e.g., motions to dismiss and for summary judgment under Rules 3211 and 3212, various discovery motions under Article 31, trial motions under Article 44, etc.) is the one charged with the prima facie burden of proof. In the present matter that would seem to imply the burden being on the Applicant to prove "lawful owner(ship)" and "no legal impediment" to successfully order the return of the subject firearms.

For starters, the above-noted threshold issue terms and phrases are not defined in the statute. Instead, they are, ultimately, left to the courts to make an open-ended, fair, reasonable, and case-by-case "judgment call" to determine the return of firearms to those from whom they were initially seized. The legislative framework of CPLR Article 63-A, unfortunately, does not provide a baseline to analyze and exercise the court's authority to reverse and remediate the seizure made against non-parties of their firearm property in the first instance. With no definitive statutory mandate dictating the legal analytical treatment of how one of these "applications" is to be properly determined, the duty to do so has been undertaken by the courts.

In less than a handful of cases to date, the above-referenced issue analysis quandary has been intricately addressed by other courts in as thorough of a manner as this Court would attempt to express itself. When getting to the essence or heart of a novel legal issue or matter is capable of being accomplished with guidance from the writings of companion members of the bench, this Court is receptive to adopting and citing that guidance when it is compatible with its own decision-making mind-set.

The first issue in this Court's view is determining the burden of proof to be applied and by whom . . . what is it and whose is it? As noted above, pre-emptively speaking, it would appear to be the Applicant's burden to establish the elements necessary to "prove" his right to have the seized items returned starting with the issue of "lawful ownership." In Ramapo Police Department v. B. F. 84 Misc 3d 277, 279-280 (Rockland Co., 2024), the issue was pointedly addressed as follows:

"Thus, lawful ownership is a threshold issue. The statute does not define ownership nor does it provide direction as to what the Court should consider to assess lawful ownership . . . More specifically, the first step is to establish "lawful owner[ship]" and once that is achieved, the Court is to examine "legal impediment[s] to [ ] possession" (emphasis in original text).

In Ramapo, the court held the evidentiary submission made in support of the application did not satisfy the burden of proof necessary to establish "ownership" by drawing a distinction between the concept of "possession" allowed pursuant to the pistol permit presented by the applicant versus what is necessary to establish ownership of the firearms listed on the permit. ("Certainly, one may own a pistol that is listed on his/her pistol permit, but same is not self-authenticating nor conclusive-in-fact as to ownership. In fact, the Court takes judicial notice that a single firearm can be listed on multiple licenses, affording multiple licensed persons the opportunity to possess the same firearm. At bar, the Applicant has not established that he is the lawful owner of the firearm at issue herein." Id. at 282)

The Opinion does not expressly state what the burden to prove ownership would have been except to provide a post-script reminder to the applicant, "that the hearing notice, supra, directed, among other things, that '[Applicant] shall bring with him to the hearing proof of ownership of the firearm [ ].' Irrespective of the foregoing, he did not do so. Certainly, however, [*5]leave is granted to the Applicant to make further application, hereafter, upon proper proof of lawful ownership" Id. at 281. The proof of ownership offered in Ramapo, the applicant's pistol permit, was found to be prima facie insufficient. Based on the court's closing grant of leave "to make further application . . . upon proper proof of lawful ownership," it is reasonable and fair to interpret the foregoing as the court's effort to describe a baseline level of commonly acceptable proof for the applicant to come back with for further consideration of his claimed ownership.

This Court agrees with that prong of the analysis and further reasonably concludes and is of the opinion that a non-party applicant's burden of "proper proof" is measured by the traditional showing in most civil proceedings of a preponderance of the evidence, nothing more. (See, People v. Gillotti, 23 NY3d 841 [2014]), where the Court of Appeals resolved a conflict among the Appellate Divisions and made a distinction where the subject statute was silent in providing a contrast between its plainly declared clear and convincing burden of proof chargeable to the People in seeking an upward risk level classification against the defendant in a sex offender registration proceeding, but not assigning "any particular burden of proof to a defendant who asks for a downward departure," and holding that the defendant in those proceedings had the lower burden of preponderance of the evidence. Id. at 862-864. ("Consistent with that legislative intent [at issue in that case] and the general practice in civil cases, we hold that a defendant must prove the existence of the mitigating circumstances upon which he or she relies in advocating for a departure by a mere preponderance of the evidence." id. at 864 [underscore added]).

In applying the foregoing, it is this Court's determination that the Applicant had, and satisfied, the burden of proof by a preponderance of the evidence to show his lawful ownership of all the firearms that were seized and are the subject of this Application, except for the two acquired through transfers made beginning with the father's stepson, XXXXX. The testimonial credibility of the Applicant and his father and the authenticity of the documentary Exhibits validate the Applicant being the lawful owner of all the other subject firearms . . . but the aforesaid "XXXXX rifles" for which there was no documentary proof of XXXXX's acquisition, and the father's genuine and truthful testimony acknowledging that he did not know the details of XXXXX's acquisition, results in an insufficient evidentiary showing to establish how, where and from whom those firearms were originally acquired by XXXXX.^FN4 In all other respects, the Applicant satisfied his burden of proof on the threshold issue of showing that he was/is the lawful owner of the firearms.

On the co-terminus and companion threshold issue of whether there is any "legal impediment" to returning the firearms to the Applicant, a different analysis and standard applies. These seized items have a constitutionally protected status and character. They are explicitly [*6]recognized and ordained under the Second Amendment of the United States Constitution as property entitled to the "right" of possession, subject to limited statutory restriction and governance. In a case addressing this subject in a similar factual and legally conceptual context (to wit, the return of a long gun seized in connection with the issuance of a prior order of protection as provided in CPL 530.14 [5] [b], "upon a written finding that there is no legal impediment to [his] possession . . . ") the issue was addressed and determined as follows:

"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].)"

Delgado v. Sinagra, 72 Misc 3d 233, 236 (Ulster Co. 2021)

This Court agrees with the burden shifting conclusion and the "clear and convincing" bar of proof set forth in the above quoted cite. Doing so makes common sense based on a plain reading of Article 63-A with respect to the totality of the Legislature's efforts to convey and express the protection of constitutional due process rights of all parties (and non-parties) referenced therein throughout the entirety of the statute. From the point of commencement with the filing of a petition up to the conclusion of the proceeding for a determination to be made on the issuance of a final ERPO, the burden is on the petitioner(s) and the standard of proof is clear and convincing evidence. While the applicable sections dealing with an "application" for the return of firearms to a non-party are silent on this issue, the rest of the statute as a whole makes it clear that the conceptual finding made by the court in Delgado is the correct and proper conclusion to be adopted in this matter. Thus, it was the petitioner's burden to show by clear and convincing evidence the existence of any "legal impediment" against the legal character and fitness of the Applicant, and none was shown. Indeed, the Applicant testified directly in response to his counsel's questioning of his good character and standing under 18 U.S.C. 922, to validate his (Applicant's) right to possess the subject firearms. (Transcript, pg. 99, l. 25 through pg. 101, l. 2). Finally, though not explicitly raised during the hearing the Court finds that the presence of a (now expired) ERPO issued against a minor-aged respondent residing in the Applicant's residence (as parent and guardian of the minor) does not constitute or create a legal impediment to the return and possession of the subject firearms to the Applicant provided they are fully and properly placed and contained in a "safe storage depository" as defined in Penal Law § 265.45 (3) in accordance with CPLR §§ 6343 (5) (b) and 6344 (2). Anonymous School v. Anonymous Student, 76 Misc 3d 1070 (Co. Ct., Saratoga County, 2022).

ORDER

Based on the foregoing it is hereby,

ORDERED, that Applicant's petition for the return of the subject firearms is granted in part, except for the two aforesaid firearms originally acquired by his father's stepson, XXXXX, (the Winchester 70 30.06 and New England Firearms Tracker SB . . . the "XXXXX firearms") which were transferred to the father in and around 2007 and subsequently transferred by Applicant's father to the Applicant in and around 2023; and it is further

ORDERED, that petitioner(s) shall dispose of the "XXXXX firearms" as otherwise permitted under CPLR Article 63-A and Penal Law § 400.05; and it is further

ORDERED, Applicant's counsel shall deliver a copy of this Decision and Order to the Applicant with an accompanying "Acknowledgment of Service" to be signed by the Applicant and file an Affirmation of Service with a copy of the signed Acknowledgment of Service with the Court Clerk; and it is further

ORDERED, that the Applicant is informed pursuant to Sections 6343 (5) (b) and 6344 (2) of the Civil Practice Law and Rules of his statutory "obligation to safely store their [his] firearm, rifle, or shotgun in accordance with section 265.45 of the penal law," including, but not limited to, compliance with subsection three thereof which provides as follows:

"3. For purposes of this section "safe storage depository" shall mean a safe or other secure container which, when locked, is incapable of being opened without the key, keypad, combination or other unlocking mechanism and is capable of preventing an unauthorized person from obtaining access to and possession of the weapon contained therein and shall be fire, impact, and tamper resistant. Nothing in this section shall be deemed to affect, impair or supersede any special or local act relating to the safe storage of rifles, shotguns or firearms which impose additional requirements on the owner or custodian of such weapons. For the purposes of subdivision two of this section, a glove compartment or glove box shall not be considered an appropriate safe storage depository."

and it is further

ORDERED, that Applicant shall separately sign and acknowledge being informed of his compliance with the provisions of PL 265.45, including the "safe storage depository" obligation as set forth above with his signature on the following provided line: ______________________________ (signature of "XXXXX"); and it is further

ORDERED, that the subject firearms authorized to be returned as provided herein shall be retrieved and returned to the Applicant by Petitioner(s) conditioned upon Applicant's delivery of a fully executed copy of this Decision and Order along with a signed copy of the Acknowledgement Service set forth above to the Petitioner(s) for their file and record-keeping purposes.

Dated: June 6, 2025

JOHN J. DELMONTE, J.S.C.