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Legal Information: New York

Statutes: New York

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Updated: 
November 9, 2020

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

1. Subject to the provisions of subdivision two, a police officer may arrest a person for:

(a) Any offense when he or she has reasonable cause to believe that such person has committed such offense in his or her presence; and

(b) A crime when he or she has reasonable cause to believe that such person has committed such crime, whether in his or her presence or otherwise.

2. A police officer may arrest a person for a petty offense, pursuant to subdivision one, only when:

(a) Such offense was committed or believed by him or her to have been committed within the geographical area of such police officer’s employment or within one hundred yards of such geographical area; and

(b) Such arrest is made in the county in which such offense was committed or believed to have been committed or in an adjoining county; except that the police officer may follow such person in continuous close pursuit, commencing either in the county in which the offense was or is believed to have been committed or in an adjoining county, in and through any county of the state, and may arrest him or her in any county in which he or she apprehends him or her.

3. A police officer may arrest a person for a crime, pursuant to subdivision one, whether or not such crime was committed within the geographical area of such police officer’s employment, and he or she may make such arrest within the state, regardless of the situs of the commission of the crime. In addition, he or she may, if necessary, pursue such person outside the state and may arrest him or her in any state the laws of which contain provisions equivalent to those of section 140.55.

4. [Expires and deemed repealed Sept. 1, 2021, pursuant to L.1994, c. 222, § 59, subd. 2.] Notwithstanding any other provisions of this section, a police officer shall arrest a person, and shall not attempt to reconcile the parties or mediate, where such officer has reasonable cause to believe that:

(a) a felony, other than subdivision three, four, nine or ten of section 155.30 of the penal law, has been committed by such person against a member of the same family or household, as member of the same family or household is defined in subdivision one of section 530.11 of this chapter; or

(b) a duly served order of protection or special order of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter is in effect, or an order of which the respondent or defendant has actual knowledge because he or she was present in court when such order was issued, where the order appears to have been issued by a court of competent jurisdiction of this or another state, territorial or tribal jurisdiction; and

(i) Such order directs that the respondent or defendant stay away from persons on whose behalf the order of protection or special order of conditions has been issued and the respondent or defendant committed an act or acts in violation of such “stay away” provision of such order; or

(ii) The respondent or defendant commits a family offense as defined in subdivision one of section eight hundred twelve of the family court act or subdivision one of section 530.11 of this chapter in violation of such order of protection or special order of conditions.

The provisions of this subdivision shall apply only to orders of protection issued pursuant to sections two hundred forty and two hundred fifty-two of the domestic relations law, articles four, five, six and eight of the family court act and section 530.12 of this chapter, special orders of conditions issued pursuant to subparagraph (i) or (ii) of paragraph (o) of subdivision one of section 330.20 of this chapter insofar as they involve a victim or victims of domestic violence as defined by subdivision one of section four hundred fifty-nine-a of the social services law or a designated witness or witnesses to such domestic violence, and to orders of protection issued by courts of competent jurisdiction in another state, territorial or tribal jurisdiction. In determining whether reasonable cause exists to make an arrest for a violation of an order issued by a court of another state, territorial or tribal jurisdiction, the officer shall consider, among other factors, whether the order, if available, appears to be valid on its face or whether a record of the order exists on the statewide registry of orders of protection and warrants established pursuant to section two hundred twenty-one-a of the executive law or the protection order file maintained by the national crime information center; provided, however, that entry of the order of protection or special order of conditions into the statewide registry or the national protection order file shall not be required for enforcement of the order. When a special order of conditions is in effect and a defendant or respondent has been taken into custody pursuant to this paragraph, nothing contained in this paragraph shall restrict or impair a police officer from acting pursuant to section 9.41 of the mental hygiene law; or

(c) a misdemeanor constituting a family offense, as described in subdivision one of section 530.11 of this chapter and section eight hundred twelve of the family court act, has been committed by such person against such family or household member, unless the victim requests otherwise. The officer shall neither inquire as to whether the victim seeks an arrest of such person nor threaten the arrest of any person for the purpose of discouraging requests for police intervention. Notwithstanding the foregoing, when an officer has reasonable cause to believe that more than one family or household member has committed such a misdemeanor, the officer is not required to arrest each such person. In such circumstances, the officer shall attempt to identify and arrest the primary physical aggressor after considering: (i) the comparative extent of any injuries inflicted by and between the parties; (ii) whether any such person is threatening or has threatened future harm against another party or another family or household member; (iii) whether any such person has a prior history of domestic violence that the officer can reasonably ascertain; and (iv) whether any such person acted defensively to protect himself or herself from injury. The officer shall evaluate each complaint separately to determine who is the primary physical aggressor and shall not base the decision to arrest or not to arrest on the willingness of a person to testify or otherwise participate in a judicial proceeding.

The protected party in whose favor the order of protection or temporary order of protection is issued may not be held to violate an order issued in his or her favor nor may such protected party be arrested for violating such order.

Nothing contained in this subdivision shall be deemed to (a) require the arrest of any person when the officer reasonably believes the person’s conduct is justifiable under article thirty-five of title C of the penal law; or (b) restrict or impair the authority of any municipality, political subdivision, or the division of state police from promulgating rules, regulations and policies requiring the arrest of persons in additional circumstances where domestic violence has allegedly occurred.

No cause of action for damages shall arise in favor of any person by reason of any arrest made by a police officer pursuant to this subdivision, except as provided in sections seventeen and eighteen of the public officers law and sections fifty-k, fifty-l, fifty-m and fifty-n of the general municipal law, as appropriate.

5. Upon investigating a report of a crime or offense between members of the same family or household as such terms are defined in section 530.11 of this chapter and section eight hundred twelve of the family court act, a law enforcement officer shall prepare, file, and translate, in accordance with section two hundred fourteen-b or eight hundred forty of the executive law, a written report of the incident, on a form promulgated pursuant to section eight hundred thirty-seven of the executive law, including statements made by the victim and by any witnesses, and make any additional reports required by local law enforcement policy or regulations. Such report shall be prepared and filed, whether or not an arrest is made as a result of the officers’ investigation, and shall be retained by the law enforcement agency for a period of not less than four years. Where the reported incident involved an offense committed against a person who is sixty-five years of age or older a copy of the report required by this subdivision shall be sent to the New York state committee for the coordination of police services to elderly persons established pursuant to section eight hundred forty-four-b of the executive law. Where the reported incident involved an offense committed by an individual known by the law enforcement officer to be under probation or parole supervision, he or she shall transmit a copy of the report as soon as practicable to the supervising probation department or the department of corrections and community supervision.

6. [Eff. Nov. 1, 2020.] (a) A police officer who responds to a report of a family offense as defined in section 530.11 of this chapter and section eight hundred twelve of the family court act may take temporary custody of any firearm, rifle, electronic dart gun, electronic stun gun, disguised gun, imitation weapon, shotgun, antique firearm, black powder rifle, black powder shotgun, or muzzle-loading firearm that is in plain sight or is discovered pursuant to a consensual or other lawful search, and shall take temporary custody of any such weapon that is in the possession of any person arrested for the commission of such family offense or suspected of its commission. An officer who takes custody of any weapon pursuant to this paragraph shall also take custody of any license to carry, possess, repair, and dispose of such weapon issued to the person arrested or suspected of such family offense. The officer shall deliver such weapon and/or license to the appropriate law enforcement officer as provided in subparagraph (f) of paragraph one of subdivision a of section 265.20 of the penal law.

(b) Upon taking custody of weapons or a license described in paragraph (a) of this subdivision, the responding officer shall give the owner or person in possession of such weapons or license a receipt describing such weapons and/or license and indicating any identification or serial number on such weapons. Such receipt shall indicate where the weapons and/or license can be recovered and describe the process for recovery provided in paragraph (e) of this subdivision.

(c) Not less than forty-eight hours after effecting such seizure, and in the absence of (i) an order of protection, an extreme risk protection order, or other court order prohibiting the owner from possessing such a weapon and/or license, or (ii) a pending criminal charge or conviction which prohibits such owner from possessing such a weapon and/or license, and upon a written finding that there is no legal impediment to the owner’s possession of such a weapon and/or license, the court or, if no court is involved, licensing authority or custodian of the weapon shall direct return of a weapon not otherwise disposed of in accordance with subdivision one of section 400.05 of the penal law and/or such license taken into custody pursuant to this section.

(d) If any other person demonstrates that such person is the lawful owner of any weapon taken into custody pursuant to this section, and provided that the court or, if no court is involved, licensing authority or custodian of the weapon has made a written finding that there is no legal impediment to the person’s possession of such a weapon, such court, licensing authority or custodian of the weapon, as the case may be, shall direct that such weapon be returned to such lawful owner.

(e) All weapons in the possession of a law enforcement official pursuant to this section shall be subject to the provisions of applicable law, including but not limited to subdivision six of section 400.05 of the penal law; provided, however, that any such weapon shall be retained and not disposed of by the law enforcement agency for at least two years unless legally transferred by the owner to an individual permitted by law to own and possess such weapon.