New York State Police, Petitioner, v. R.L.M., Respondent. (2026)

This matter stems from the filing of a Petition for a Temporary Extreme Risk Protection Order (herein "TERPO") under CPLR Article 63-A (commonly known as New York State's "Red Flag Law") against the Respondent by the Petitioner, New York State Police. Said TERPO was granted on June 24, 2026 by the Hon. Michael J. Hartnett, A.J.S.C. and a final hearing was scheduled for July 7, 2026 before the undersigned. Respondent was thereafter duly served with the Notice of Hearing.

On the return date of July 7, 2026, Respondent failed to appear, had not contacted the Court to request an adjournment, and the hearing on the Final Extreme Risk Protection Order (herein "FERPO") proceeded. At the outset, it should be noted that the a petitioner's burden does not shift upon default by a respondent (Matter of Lila JJ. [Danelle KK], 2020 NY Slip Op 01216, [3rd Dept. 2020] [Court should have followed " 'the proper course' " of 'requir[ing] petitioner to present its proof' "]). CPLR § 6343 requires the Court to hold a hearing no sooner than three business days nor later than six business days after service of the TERPO upon a respondent. As such, the Court is obligated to hold a hearing, even when there is a default in appearance and likewise, a petitioner is obligated to prove its case by clear and convincing evidence as provided in CPLR Article 63-A.

At the hearing, Petitioner called NYS Trooper Lauren Russell as the only witness. Trooper Russell testified credibly to the contents and accuracy of the application based upon her personal knowledge. Trooper Russell further testified to her personal interactions with, and observations of, Respondent and his partner, S.G., which raised serious concerns regarding Respondent's mental state. However, Trooper Russell did not directly hear Respondent make the alleged suicidal statements; rather she recounted, in what amounted to inadmissible hearsay testimony, of what other responding troopers, and S.G., had related to her.

At the conclusion of Trooper Russell's testimony, Petitioner proffered a document marked as Petitioner's Exhibit "1", a CPL § 710.30 disclosure form, sworn to by Trooper Eldred wherein it is written that Respondent stated to Trooper Eldred, "I don't want to live anymore."

The Court found that Trooper Russell's personal observations independently met the Petitioner's burden and granted the FERPO on those grounds. However, the Court reserved on whether it could properly admit and consider the CPL § 710.30 disclosure and advised a written decision would be forthcoming.

There is little authority regarding the admission into evidence of written hearsay statements in FERPO hearings. In light of the recent decision in Preller v. Collesano, 2026 NY App. Div. LEXIS 3964, 2026 NY Slip Op 03809, 2026 WL 1741390 [2nd Dept. 2026], which dealt with oral hearsay statements, the Court now makes this written Decision and Order to provide guidance on the issue of evidentiary proof based upon written submissions which contain hearsay statements.

In FERPO proceedings, the court "shall" consider "any relevant factor," but must consider seven statutorily enumerated "acts of the respondent." (CPLR § 6342[2]). CPLR 6343[2] also "plainly authorizes the court to consider—and therefore, necessarily, to receive as evidence—two forms of hearsay: (1) the petition itself  ¹ ; and (2) the background report that a court may authorize at the time a [temporary extreme risk protection order] is issued" (Haverstraw Town Police [PO Vega No. 238] v C.G., 79 Misc 3d 1005, 1014, 190 N.Y.S.3d 588 [Sup Ct, Ulster County 2023]). In deciding Haverstraw, Justice Schreibman further stated that "[w]hether these authorizations imply the admissibility of hearsay in general at the FERPO hearing is debatable and courts would undoubtedly welcome legislative clarification." The decision in Haverstraw was issued in 2023. This Court now finds that the Second Department's 2026 decision in Preller v. Collesano which cites to Haverstraw has provided judicial clarity where the legislative clarity lacked. Preller holds that proof in an ERPO proceeding which is based solely on oral hearsay does not meet the clear and convincing standard. Undoubtedly this must be so for written documents which contain hearsay statements.

"T]he court must be able to make findings, under a clear and convincing standard" (see Kelly v. E.R., 84 Misc 3d 555, 561 [Ulster Co. Sup. Ct. 2024]). "Clear and convincing evidence is evidence that satisfies the factfinder that it is highly probable that what is claimed actually happened" (See Matter of Gail R. [Barron], 67 AD3d 808, 811 [2d Dept 2009]). The Court of Appeals has recently held that clear and convincing evidence is "the most demanding burden in the civil legal system." (Matter of K.Y.Z. v. Good Shepherd Services, 44 NY3d 657 [2025]). Clear and convincing evidence "is neither equivocal nor open to opposing presumptions." (In re Duane II, 151 AD3d 1129, 1131 [3rd Dept. 2017]). Indeed, the standard "forbids relief whenever the evidence is loose, equivocal or contradictory." (Matter of K.Y.Z., Id. at 677, quoting Matter of Westchester Med. Ctr. [O'Connor], 72 NY2d 517, 529 [1988]).

In analyzing the proffered CPL § 710.30 disclosure affirmation, which is a sworn affidavit from a firsthand witness, it is not automatically inadmissible, but it is also not automatically sufficient in the context of a FERPO hearing. Notwithstanding the alleged firsthand statement by Respondent to Trooper Eldred, such document is clearly an out of court statement by Trooper Eldred, being offered for the truth of Respondent's alleged statement to Trooper Eldred. A CPL § 710.30 disclosure is unambiguously hearsay in this context.²

Just because a statement is hearsay, does not render it inadmissible. However, hearsay is only admissible if there is an exception to the hearsay rule or if the Federal and New York State Constitutions require such admission.³ As many courts have explained, such sworn written statements should not be considered in the context of a hearing or trial (see, Seinfeld v. Robinson, 300 AD2d 208 [1st Dept. 2002] ["affidavits should not have been received by the Judicial Hearing Officer from witnesses who were not available for cross-examination in court, and such affidavits were properly disregarded"] [internal citation omitted]).

In this proceeding, the Court can discern no other hearsay exceptions under which the same could be considered by the Court.

THEREFORE, upon all the pleadings and proceedings heretofore had herein, and due deliberation having been had;

NOW, it is

ORDERED that the Court shall consider the CPL § 710.30 disclosure as inadmissible hearsay, and the same shall not be received into evidence; and it is further

ORDERED that for the reasons set forth on the record, and in the July 7, 2026 FERPO, the Court finds no reason to modify the Final Extreme Risk Protection Order as issued dated July 7, 2026.

Dated: July 28, 2026

Hon. Jonathan G. Schopf

Acting Justice of the Supreme Court

FOOTNOTES

1.   In this proceeding, the CPL § 710.30 disclosure was not incorporated or referenced in the initial TERPO application. Even if it had been, the Court's analysis remains the same. Had the CPL § 710.30 statement been included in the TERPO application, while this would have been additional support for the initial TERPO application, such a hearsay statement could not be properly admitted and standing alone could not prove Petitioner's burden by clear and convincing evidence at the final hearing.

2.    see, The Guide to New York Evidence, (Rule 8.00, Definition of Hearsay: https://www.nycourts.gov/judges/evidence/8-HEARSAY/ARTICLE-8-RULES-3.pdf [last accessed July 24, 2026].

3.    see, The Guide to New York Evidence, Rule 8.01, Admissibility of Hearsay: https://www.nycourts.gov/judges/evidence/8-HEARSAY/ARTICLE-8-RULES-3.pdf [last accessed July 24, 2026].

Jonathan G. Schopf, J.