3 rd Annual Statutory Update: What Came Out of Washington and Albany in 2013

1. 3rd Annual Statutory Update: What Came Out of Washington and Albany in 2013 Bar Association of Erie County Noonday CLE January 29, 2014 Frank Housh, frank@houshlaw.com

2. Bar Association of Erie County www.eriebar.org

3. American Constitution Society, WNY Lawyers Chapter www.acslaw.org

5. Public Laws of the 113th Congress • Least productive in history. • Comparison with last year.

6. New York Chapter Laws of 2013

7. SAFE ACT of 2013 • Bans possession of any "high-capacity magazines" regardless of when they were made or sold. The maximum capacity magazine is 7 rounds for pistols (overturned). .22 caliber tubular magazines are exempt from this limit. Previously legal "pre-1994-ban" magazines with a capacity of 30 rounds are not exempt, and must be sold within one year to an out-of-state resident or turned in to local authorities.

8. SAFE ACT • Ammunition dealers are required to do background checks, similar to those for gun buyers. • Requires creation of a registry of assault weapons.

9. SAFE ACT • Requires designated mental health professionals who believe a mental health patient made a credible threat of harming others to report the threat to a mental health director, who would then have to report serious threats to the state Department of Criminal Justice Services. A patient's gun could be taken from him or her.

10. SAFE ACT • Stolen guns are required be reported within 24 hours. • Broadens definition of "assault weapon" from two identified features to one. • Def: semi-automatic firearms with a detachable magazine and one or more cosmetic, ergonomic, or safety features, such as a flash suppressor, pistol grip, or Barrel shroud, respectively

11. SAFE ACT • Semi-automatic firearms, when fired, automatically extract the spent cartridge casing and load the next cartridge into the chamber, ready to fire again. They do not fire automatically like a machine gun. Rather, only one round is fired with each trigger pull.

12. SAFE ACT • Requires background checks for all gun sales, including by private sellers - except for sales to members of the seller's immediate family.

13. SAFE ACT • Guns must be "safely stored" from any household member who has been convicted of a felony or domestic violence crime, has been involuntarily committed, or is currently under an order of protection.[11] Unsafe storage of assault weapons is a misdemeanor. • Bans the Internet sale of assault weapons.

14. SAFE ACT • Increases sentences for gun crimes, including upgrading the offense for taking a gun on school property from a misdemeanor to a felony.[12] • Increases penalties for shooting first responders (Webster provision) to life in prison without parole. • Limits the state records law to protect handgun owners from being identified publicly

15. SAFE ACT • Requires pistol permit holders or owners of registered assault weapons to have them renewed at least every five years. • Allows law enforcement officials to pre-emptively seize one's firearms without a warrant or court order when there is probable causethe individual is mentally unstable or intends to use the weapons to commit a crime.

16. SAFE ACT • Skretny suit: 7 round limit struck down.

17. Chapter 556 Provides that local criminal courts shall treat and retain persons aged 16 and 17 who commit certain prostitution offenses as PINS proceedings.

18. Chapter 546 A public adjuster is an insurance claims adjuster who advocates for the policyholder in appraising and negotiating a claimant's insurance claim. (s) (1) Every public adjuster shall have an affirmative duty to act onbehalf and in the best interests of the insured when negotiating for oreffecting the settlement of an insurance claim for the insured or other-wise acting as a public adjuster.(2) (A) No public adjuster shall receive any compensation, eitherdirectly or indirectly, for a referral of the insured to an individualor entity for services, work or repairs, relating to any insurance claimfor which the public adjuster represents the insured or has negotiatedor effected a settlement, unless the compensation is prominently andclearly disclosed to the insured in the written memorandum described insubsection (p) of this section.

19. Chapter 538 (c) Disposition to surviving spouse who is not a United States citi-zen. In the case of an estate where a federal estate tax return is notrequired for federal estate tax purposes, a disposition to a survivingspouse that would qualify for the federal estate tax marital deductionunder section 2056 of the internal revenue code if not for the limita-tion imposed by subsection (d)(1) of such section shall nonetheless betreated as qualifying for the federal estate tax marital deduction forpurposes of computing the tax imposed by section nine hundred fifty-twoof this part, without requiring that such disposition pass to thesurviving spouse in a qualified domestic trust as required for federalpurposes by internal revenue code section 2056(d)(2).

20. Chapter 531 If asked by the impounding organization (SPCA) DA can ask for bond in animal cases.

21. Chapter 526 Adds identity theft, larceny and coercion to those offenses over which criminal and family courts have concurrent jurisdiction when involving family or household members

22. Chapter 480 Provides that communications or contact between protected parties with a party against whom an order of protection is issued shall not affect the validity of such order. The order of protection shallalso contain the following notice: "This order of protection will remainin effect even if the protected party has, or consents to have, contactor communication with the party against whom the order is issued. Thisorder of protection can only be modified or terminated by the court. Theprotected party cannot be held to violate this order nor be arrested forviolating this order.".

23. Chapter 467 Prohibits the unsolicited mailing of convenience checks to consumers without the express consent of the consumer.

24. Chapter 427, The Uniform Guardianship and Protective Proceedings Act Establishes a uniform set of rules for determiningjurisdiction between multiple states in guardianship cases. Oftentimes, guardianship or protective proceedings must be initiated in a second state because of the refusal of financial institutions, care facilities, and the courts to recognize a guardianship or protective order issued in another state. Before the creation of the Act, guardians appointed in another state had to commence a second action in a New York state court to re-establish incapacity and the need for the appointment of a guardian.

25. This often was a lengthy, expensive and emotional process. New York state courts are now permitted to recognize a guardianship order from another state, including that court’s determination of incapacity and the appointment of the guardian. The Act establishes a mechanism by which New York state courts can accept guardianship or conservatorship transferred from another state as well as transfer guardianship or conservatorship to another state without a separate action.

26. Chapter 388: Hannah’s Law Amends New York’s medical insurance law to cover the cost of enteral formulas. Eosinophilic esophagtis is an inflammatory condition where the esophagus becomes filled with eosinophils, a type of white blood cell. Children with this disorder can only obtain nourishment from expensive enteral formulas or feeding tubes. Previous insurance law covered the cost of enteral formulas only under conditions that require tube feeding. The law amends the requirement that the formula to be covered with or without tube feeding.

27. Chapter 372: Land Banks Land banks are not-for-profit corporations created to take control and redevelop vacant or abandoned properties to where they can better serve the public interest. Chapter 372 Provides that a land bank may tender a bid on sales of property made pursuant to public sale, county charter, city charter, administrative code or special law, when no municipality elects to do so.

28. Chapter 371 Creates a rebuttable presumption that visitations by rapists who conceived child by their crime is not in the best interests of the child.

29. Chapter 306 In a residential foreclosure action, Chapter 306 requires that the complaintshall be accompanied by a certificate, signed by the attorney for theplaintiff, certifying that the attorney has reviewed the facts of thecase and that, based on consultation with representatives of the plaintiff identified in the certificate and the attorney's review of pertinent documents, including the mortgage, security agreement and note orbond underlying the mortgage executed by defendant and all instrumentsof assignment, if any, and any other instrument of indebtedness including any modification, extension, and consolidation, to the best of such attorney's knowledge, information and belief there is a reasonable basisfor the commencement of such action and that the plaintiff is currentlythe creditor entitled to enforce rights under such documents.

30. Chapter 202 Provides new telephone numbers without charge for certain victims of domestic violence.

31. Chapter 174: The Upstate New York Gaming Economic Development Act of 2013 Establishes our destination gaming resorts in Upstate New York and boost tourism and economic development in communities across the region

32. Chapter 172 Provides that an assault of a child where the defendant has a previous conviction for an assault of a child shall be aggravated assault. Assault 1st Degree.

33. Chapter 162 Increases penalty for killing or injuring a police animal from class A misdemeanor to class D felony