New York State Police v N.C.

Supreme Court, Albany County

Decided on March 31, 2026

Index No. 903162-26

Kimberly A. O'Connor, J.

Petitioner New York State Police (hereinafter "NYSP") commenced this proceeding seeking an Extreme Risk Protection Order (hereinafter "ERPO") based upon allegations of suicidal threats and ideation by respondent N.C., a 12-year-old child. On March 17, 2026, NYSP responded to XXXX, New York ^FN1 for the report of a suicidal person. When NYSP responded, they spoke to N.C.'s mother, B.M., who informed them that N.C.'s therapist had [*2]informed her that N.C. had plans to kill himself that evening. B.M. indicated that she wanted N.C. safely transported to a hospital for a mental health evaluation, but she did not feel comfortable transporting him herself. When NYSP interviewed B.R., N.C.'s therapist, she told them that N.C. told her that he was unhappy with something he did at school that day and that he was going to kill himself at home that night. N.C. confirmed that he made these statements. B.R. also informed NYSP that N.C. had tried to kill himself in January 2026 by overdosing on allergy medication.

B.M. told NYSP that her husband, V.C., has firearms in their home that are locked up in a safe. V.C. confirmed to NYSP that he has long guns in a safe and N.C. has no access to them. V.C. advised NYSP that he would bring the long guns to a neighbor's house that evening and then to his father's house in XXXX, New York after that so they were no longer in the residence.

XXXX EMS responded and transported N.C. to Albany Medical Center Hospital for a mental health evaluation via ambulance. B.M. followed the ambulance to the hospital.

NYSP applied for a temporary emergency risk protection order (hereinafter "TERPO") on March 17, 2026. The TERPO application was denied by Hon. Jacqueline Ricciani on March 17, 2026 stating ". . . The boy's father has taken appropriate steps to secure all long guns out of the home. Respondent has not made any specific threat of self harm [sic] nor is there a plan for self-harm.Respondent is not able to purchase a firearm and does not possess any firearms." A hearing regarding a final ERPO was scheduled for March 27, 2026 at 10:00 a.m.

Respondent was not present at the hearing; however, his parents were present on his behalf. They indicated that they wished to proceed with the hearing. Trooper Deana Greenblatt testified to the occurrences recited above that occurred on March 17, 2026. Petitioner also called V.C. to testify. He testified about the long guns that he owns and the steps he took to secure them elsewhere on March 17, 2026. He also testified about N.C.'s prior suicide attempt earlier this year. He further stated that N.C. sees a counselor and he discussed briefly some of the activities he does with N.C., including but not limited to, talking to him and taking him to the gym. Respondent did not present any witnesses.

Analysis

CPLR 6343 governs the issuance of a final ERPO. Paragraph 2 states:

At the hearing pursuant to subdivision one of this section, the petitioner shall have the burden of proving, by clear and convincing evidence, that the respondent is likely to engage in conduct that would result in serious harm to himself, herself or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law. The 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 pursuant to subdivision nine of section sixty-three hundred forty-two of this article. The court shall also consider the factors set forth in subdivision two of section sixty-three hundred forty-two of this article.

Section 9.39 of the Mental Hygiene Law defines serious harm to himself, herself or others as follows:

"Likelihood to result in serious harm" as used in this section shall mean:

1. substantial risk of physical harm to themself as manifested by threats of or attempts at suicide or serious bodily harm or other conduct demonstrating that they are dangerous to themself, 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, or

3. a substantial risk of physical harm to the person due to an inability or refusal, as a result of their mental illness, to provide for their own essential needs such as food, clothing, necessary medical care, personal safety, or shelter.

CPLR 6342(2) outlines the factors that the Court shall consider when making a determination on an application for an ERPO as follows:

In determining whether grounds for a temporary extreme risk protection order exist, the court shall consider any relevant factors including, but 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 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;

(g) evidence of recent acquisition of a firearm, rifle, shotgun or other deadly weapon or dangerous instrument, or any ammunition therefor; or

(h) evidence of recent acts of aggravated cruelty to animals as defined in section three hundred fifty-three-a of the agriculture and markets law.

In considering the factors under this subdivision, the court shall consider the time that has elapsed since the occurrence of such act or acts and the age of the person at the time of the occurrence of such act or acts.

For the purposes of this subdivision, "recent" means within the six months prior to the date the petition was filed.

"The purpose of CPLR Article 63-A is 'to prevent individuals from accessing firearms, rifles, and shotguns who have been deemed, through judicial process, likely to engage in conduct that would result in serious harm to themselves or others' " (R.M. v C. M., 226 AD3d 153, 158 [2d Dept 2024], quoting 2019 NY Legis. Ann. at 20).

Taking into account all of the testimony and evidence presented to the Court and reviewing it through the lens of the above sections of law, the Court finds that petitioner has not met its burden of proof by a standard of clear and convincing evidence to establish that issuance of an ERPO is warranted and that N.C. is likely to engage in conduct that would result in serious harm to himself. This application highlights an ongoing issue in the utilization of CPLR Article 63-A involving minors who exhibit behaviors that may indicate a likelihood of self-harm or harm to others. This statute has been utilized by law enforcement in these situations, in part, to extract firearms from a location accessible to the minor, despite the minor not generally being legally permitted to even possess firearms.

While the potential mental health challenges facing these individuals, or their behavior, may warrant intervention under a number of other statutes that are designed to actually address the mental health challenges the individual is facing, or deal with behaviors in which they are [*3]engaging, it is not clear that the ERPO process is actually built for that purpose. The Court noted the stated purpose of the statute above, which is "to prevent individuals from accessing firearms, rifles, and shotguns," who have been determined to be a harm to themselves or others in accordance with the standards set forth in the Mental Hygiene Law. Interestingly, the definitions adopted by the ERPO statute are those utilized to assess an individual for emergency admission to a hospital for care and treatment of a mental illness. This highlights the fact that a process is already in place to address the care and treatment concerns regarding an individual who has demonstrated a serious risk of harm to themself or others. As such, the ERPO statute is intended to achieve a much narrower purpose: to ensure that individuals who meet the criteria cannot purchase, acquire or possess firearms.

The application of this statute to minors raises some real questions since minors already cannot legally purchase or acquire the firearms the statute seeks to address. This leaves a narrow category of circumstances in which a minor may possess a firearm at certain ages related to hunting (see Environmental Conservation Law § 11-701; Penal Law § 265.05). However, if there is no evidence that the minor who is the subject of an ERPO application possesses one of these hunting licenses, then it raises the question of whether the ERPO process should be applicable to such a minor. Under these circumstances, the issuance of an ERPO would not address any direct risk of harm to the minor because the minor is not able to legally acquire, purchase or possess such firearms.

Many of these applications are brought when there is no indicia of any access to firearms by the minor, there is no specific allegation of a threat to use a firearm, or where firearms are possessed by someone else in the minor's residence. These applications often pose more questions and concerns. For example, some applications are filed concerning a minor mainly because there is a concern or there is information that there are firearms in the house owned by another member of the household. The Court does not have any jurisdiction over the members of the household who possess the firearms since an ERPO application is filed only as to the individual who is arguably a threat to themself or others. In the case pending before this Court, the minor's parents, who reside with him, took action to remove the father's lawfully possessed firearms once the threat of suicide occurred on March 17, 2026. However, there is no specific provision in the law that requires them to do so, or directly gives this Court the authority to require the same. Therefore, in a circumstance such as this, where a minor cannot legally acquire, purchase or possess firearms, and the Court has no direct authority to have the firearms of the other members of the residence removed based upon the ERPO application, the applicability of the ERPO statute is questionable. As a result of the foregoing, the Court finds that there is no basis to issue an ERPO, as petitioner failed to meet its burden of establishing the applicability of the statute to respondent based upon the evidence presented.

In addition to the above reasons for denial of the ERPO, the Court finds that petitioner did not establish that respondent specifically threatened suicide with a firearm. This also served as the basis for the denial of the TERPO, in part. To be clear, N.C.'s general suicidal threat on March 17, 2026 is absolutely cause for concern and should be dealt with in accordance with pursuit of appropriate mental health treatment and decisions made by the parents regarding the health and welfare of their son. The findings in this Decision and Order simply highlight the narrow application of the ERPO statute and recognize that many situations in which individuals, particularly minors, threaten harm to themselves or others, do not fit within the goals or parameters of the ERPO statute, but instead, should be managed through other legal and/or [*4]medical avenues.

The relevant factor in CPLR 6342(2) that is applicable to this application relates to the threat of suicide. It is undisputed that N.C. made a suicide threat. However, as noted above, the existence of this factor is not the end of the inquiry. Taking all of the relevant provisions of law into consideration based upon the above analysis, petitioner has not established that the issuance of an ERPO is warranted. As such, the application is denied.

Accordingly, it is hereby

ORDERED that petitioner's application is denied.

This memorandum constitutes the Decision and Order of the Court. The original Decision and Order is being uploaded to the NYSCEF system for filing and entry by the Albany County Clerk. The signing of this Decision and Order and uploading to the NYSCEF system shall not constitute filing, entry, service, or notice of entry under CPLR 2220 and § 202.5-b(h)(2) of the Uniform Rules for the New York State Trial Courts. Counsel is not relieved from the applicable provisions of those Rules with respect to filing, entry, service, and notice of entry of the original Decision and Order.

SO ORDERED.

ENTER.

Dated: March 31, 2026

Albany, New York

HON. KIMBERLY A. O'CONNOR

Acting Supreme Court Justice

Papers Considered:

1. Application for Extreme Risk Protection Order, affirmed on March 17, 2026;

2. Investigative Report, dated March 17, 2026;

3. Order Denying Application for a Temporary Extreme Risk Protection Order, (Ricciani, J.), dated March 17, 2026; and

4. Extreme Risk Protection Order (ERPO) Background Report, dated March 26, 2026.