New York State Police, Petitioner, v. C.G., Respondent. (2026)

This matter stems from the Petitioner, New York State Police (hereinafter "NYSP") filing 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"). Respondent is an adult.The names of the parties and witnesses have been anonymized herein.

The September 8, 2026 Petition seeks the issuance of the TERPO preventing the Respondent from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun. In support of this Petition, the NYSP filed, as is typical, its investigative report and a copy of a NYS CPL § 710.30 statement. The investigative report gave a narrative summary of the two responding Troopers' interaction with the Respondent and the § 710.30 statement recited alleged statements made by the Respondent to the Troopers which were time-stamp referenced to body camera footage  ¹ .

The undersigned found the Petition to be sufficient and granted a TERPO the same day as application was made. Respondent was duly served September 9, 2026 and appeared on the hearing date with counsel. A hearing was held on September 15, 2026. At the hearing, the Petitioner called as a witness one of the responding Troopers (referred to herein as "Trooper H."); and Respondent called herself and Respondent's spouse as witnesses. No exhibits were introduced on behalf of Petitioner. Three (3) exhibits were admitted on behalf of the Respondent (doorbell camera footage — Exhibit "A", the TERPO Petition — Exhibit "B", and text message screenshots — Exhibit "C"). Following the close of proof and closing statements, the Court issued an oral denial of the Petition on the record and now issues this written decision.

A court "may" issue a TERPO "upon a finding that there is probable cause to believe the respondent is likely to engage in conduct that would result in serious harm to himself, herself, or others" as those terms are defined in the Mental Hygiene Law ("MHL"). The court "shall" consider "any relevant factor," but must consider seven statutorily enumerated "acts of the respondent." (CPLR § 6342[2]). By law, a court must adjudicate a TERPO petition "on the same day" that it is filed. (CPLR § 6342[1]).

The Court granted the issuance of the TERPO based upon the Court's determination that there was sufficient evidentiary support for the Petition to meet the probable cause standard set forth in CPLR § 6342. Whether the TERPO is granted or denied, the court must schedule an evidentiary hearing to determine whether to issue a Final Extreme Risk Protection Order ("FERPO").² While the factors to be considered are the same, the petitioner's burden of proof at the FERPO hearing is higher than at the TERPO stage. To obtain a FERPO, while petitioner must still establish that the respondent is likely to engage in conduct that would result in serious harm to the respondent or others, petitioner is required to prove this by clear and convincing evidence (CPLR § 6343[2]). At the hearing, the court may consider "any evidence" submitted by either side, along with the sworn petition itself, a statutorily-authorized background report prepared by the relevant law enforcement agency, and the factors set forth in CPLR § 6342[2].

As has been previously noted by this Court and others, the Red Flag Law does not address any weapons or injurious objects other than shotguns, rifles and firearms (collectively "firearms" herein), nor is it the vehicle through which affirmative mental health or other services can be delivered to a person in crisis. The power of a court adjudicating a Red Flag Law petition is limited to one outcome: separating the respondent from firearms by issuing a TERPO and/or FERPO. In the instant matter, allegations are made that the Respondent was suspected as possibly having inflicted self-harm using a metal nail file, Xanax, and alcohol. The Respondent has no firearms  ³ . This is, however, of no moment considering the statutory structure (see, New York State Police v. Owen WW, 2026 WL2869520 [3d Dept. 2026]).

As this Court has also previously noted in several TERPO and FERPO orders, the Court is statutorily powerless to take any steps to separate a respondent from objects, items, or substances other than firearms, and has no power under the statute to make referrals of persons in mental health crisis for treatment of any kind.

In most cases involving threats of self-harm, this Court has observed that respondents are subject to what must be a traumatizing game of "catch and release" for any person who is suffering from a mental health crisis. In these cases, respondents are taken into custody by the police, handcuffed  ⁴ , transported in the back of a police car to a hospital for a NYS MHL § 9.41 evaluation and released by the hospital within a matter of hours, without treatment. The respondent is then served a stack of what could be to some, perplexing court-issued form papers, and summoned to court to appear in front of a judge where they are often confused as to whether they have done something "wrong" or are being accused of a crime. They then sit through a hearing, most often unrepresented, the sole outcome of which is to prevent them from having access to firearms which they typically do not possess and have no intent or ability to acquire, and which are completely unrelated to the acts in the underlying petition.

None of this is the fault of the police who are trying to assist and have a statutory obligation to secure and transport such persons; the hospitals who have an obligation to perform a triage evaluation; or the courts who are powerless to help respondents who clearly are in need of mental health treatment. Rather, the outcome is a product of the legislation as drafted; a broken and overwhelmed mental health system; and, likely the unintended consequences of an amendment to CPLR § 6341 which removes officer discretion, and instead mandating police to file TERPOS when there is probable cause to believe that a respondent is likely to engage in any conduct that falls under MHL §§ 9.39(a)(1) or (2)  ⁵ . The vast majority of cases result only in bringing troubled persons into governmental and healthcare systems woefully unequipped to handle their needs, and the judicial system which is without jurisdiction to provide help - - help that is desperately needed in some cases.

More troubling is this Court's observation that when respondents who are suffering from a mental health crisis and utilize services such as the 988 Crisis Line in this case, or call EMS or police for assistance, that they are unwittingly dragged into systems which do not provide proper care, comfort and support, but rather one which is confrontational and punitive in nature. This Court has had respondents state on the record, in sum and substance, that they will never call for help again as a result of this judicial process. This Court cannot possibly believe that the intended consequence of this legislation was to subject vulnerable individuals suffering a genuine mental health crisis — who have no access to or intent to possess a firearm — to the machinations of NYS CPLR Article 63-A, potentially discouraging people from making responsible decisions to seek help in proactively treating their own mental health needs or preventing self-harm while in the midst of a mental heath crisis. Unfortunately, these collateral consequences are real — are tragic — and are seen in the courtrooms of this County every week.

The Court has serious concerns whether Respondent in this case — who testified that she has been seeing a therapist for her issues for three (3) years and who had the 988 Crisis Line recommended to her as a tool to use when she has certain thoughts — would utilize that service again given the response she experienced.

Critically in this case, and with most cases involving those with mental health issues, "[W]hile a Court must make findings that support its decision, the question that the statute puts to a Court is not to describe a respondent's past conduct but to make an evidence-based prediction about the respondent's future conduct . While medical evidence is not statutorily mandated, as a practical matter where [a] [TERPO petition] is based on a respondent's mental health, a petitioner will be hard-pressed to demonstrate what a respondent's likely future conduct will be without some form of medical evidence" (See, New York State Police v. K.L. 248 NYS3d 881 at 895 and 896 [Ulster Co. Sup. Ct. 2025]). Notably, neither medical evidence nor testimony about the Respondent's past conduct were elicited from any witness, which may have served to inform of potential future conduct. The testimony and factual evidence before the Court solely alluded to prior acts of non-suicidal cutting and the actions that the Respondent took to reach out for assistance in a troubled moment.

Petitioner's Failure to Meet the Burden of Proof

The Petitioner failed to meet its burden under the legal standard applicable to a FERPO finding. "[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]). Proof in an ERPO proceeding which is based solely on hearsay does not meet the clear and convincing standard (see, Preller v. Collesano, 2026 NY App. Div. LEXIS 3964, 2026 NY Slip Op 03809, 2026 WL 1741390). In particular, while reliable hearsay may be used to support a finding under this standard, where such out of court statements "are equivocal or inconsistent, and not substantiated by other proof, they do not rise to the level of clear and convincing evidence" (People v. Dominie, 42 AD3d 589, 591 [3rd Dept. 2007].

The Petition asserts the following and stated that:

"On September 6, 2026 SP Saratoga Troopers responded to [redacted address] suicidal subject. Upon arrival, [C.G.] (hereinafter referred to as the respondent), was located at the residence and stated that she has been having thoughts of self harm (sic) and expressed these thoughts to the suicide hotline. The respondent stated that she is prescribed Xanax for depression and expressed in text messages that she could consume large amounts of the medication. She also stated that she consumed a large quantity of vodka while taking Xanax and was in debilitating pain. Messages were observed by patrols where the respondent stated she has made hundreds of attempts to harm herself. The text she sent to the crisis hotline stated, "the urge of self harm (sic) is here". The respondent stated that she has a pellet gun in the house, however, there are no firearms in the residence. As a result of the statements made by the respondent, evidence of alcohol/prescription drug usage, and text messages observed, the respondent was taken into custody pursuant to MHL9.41 and transported to Saratoga Hospital for a mental health evaluation" [emphasis added].

The Court credits Trooper H's credible and honest testimony regarding his observations of the Respondent on the day in question. He testified that he observed the Respondent to be under the influence of some substance. He testified that he did not observe any cuts on the Respondent's arms and that she only made comments about cutting herself in the past, not the present. He further testified that he, himself, did not see the text of the messages sent by the Respondent, but that he observed his partner, Trooper M, look through the Respondent's phone and view the texts. Trooper M did not testify and was not present at the hearing. The Respondent submitted screenshots of the text message conversation which were purportedly between Respondent and the crisis line. The operator at the crisis line specifically asked the Respondent " [h]ave you had any thoughts of wanting to kill yourself in the past few days, including today?" The Respondent texted back "no". The following conversation then ensued:

Operator: " have you taken any action to harm yourself today?"

Respondent: "[s]ome very light scratching. Urge to self harm (sic) is there a bit too, but more pull towards taking some Xanax. But I was drinking tonight."

Operator: "Are you bleeding?"

Respondent: "No just irritated skin"

Operator: "What did you use to harm yourself?"

Respondent: "Metal nail filer (sic)"

Operator: "What did you do with the metal filer (sic)?"

Respondent: "Put it back in the drawer" "Hate being in this mindset" "Just want to numb out" "Debating to take some Zanex" "Sleep this mindset away"

Operator: "Thank you for taking that step to protect your safety. Do you have the Xanax next to you now?

Respondent: "It's in my bathroom"

Later in the conversation, as is relevant to the Court's determination, in response to a question from the operator about what triggered Respondent's feelings she replied in relevant part: " working with a therapist and finally feel mood comfortable to discuss self harm (sic) and self medicating (sic) as typical ways I deal Just feels very exposed being that honest about those things." Thereafter the Respondent dropped out of the conversation.

There was no proof adduced at the hearing that the text messages which were set forth in the Petition as underlined above were actually sent by the Respondent. In fact, the messages submitted as Respondent's Exhibit "C" contain none of the alleged statements such that: "she is prescribed Xanax for depression and that she could consume large amounts of medication"; "she consumed a large quantity of vodka while taking Xanax and was in debilitating pain", and that "she has made hundreds of attempts to harm herself."⁶

The Eight CPLR § 6342 Factors

CPLR § 6342[2] provides that:

"[i]n 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."

Based on the facts and circumstances of the instant Petition, the Court determines that only factors (a) and (f) are relevant to this matter. As to factor (a) the Court finds that the claimed threat as set forth in the text messages as contrasted with the Respondent's testimony does not establish a clear and convincing threat or act of violence against herself under the meaning of the statute. It appears that Respondent contacted the 988 Crisis Line as recommended by her therapist as she was having a "strong urge to use" and that she needed help "moving from a hot moment to a colder moment". Respondent was considering taking Xanax, but had concerns about taking it as she had consumed alcohol earlier in the evening and knew she was not supposed to mix those two substances. The texts state that Respondent scratched herself with a metal nail file, but it is unclear from the testimony if that was an affirmative action of self-harm or not. Respondent testified credibly that she had no intention of killing herself on the evening in question, had never attempted suicide, and was released from the hospital with no referral for further treatment. In sum, the testimony adduced does not meet the Petitioner's clear and convincing evidence burden.

As to factor (f) the Court finds that the testimony regarding Trooper H's observations of the Respondent as being under the influence to be credible, especially when Respondent's demeanor as seen in the home video camera footage was observed in Respondent's Exhibit "A", however, these observations standing alone cannot overcome the failure of factual proof in this matter.

Taking the pleadings and record as a whole, the Court finds that the Petitioner did not meet its burden to prove by clear and convincing evidence that Respondent be the subject of a FERPO. The only witness for the Petitioner could not contradict the contents of the text messages produced by the Respondent, since he never viewed them on the Respondent's cell phone on the date of the incident, and presumably no images of those text messages were preserved by the responding Troopers to be admitted as evidence to oppose the submissions of the Respondent. As such, the Petitioner failed to meet its burden and the Petition must be denied and dismissed and the record of this matter sealed.

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

NOW, it is

ORDERED, that Petitioner has not proven by clear and convincing evidence that the Respondent is likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a); and it is further

ORDERED, that the Petition is dismissed in its entirety; and it is further

ORDERED, that as the Respondent is represented by counsel, service of a copy of this Decision and Order and the accompanying UCS-6346/S and UCS-6343/D upon the Respondent is waived.

Dated: October 1, 2026

At Ballston Spa, New York

HON. JONATHAN G. SCHOPF, A.J.S.C.

FOOTNOTES

1.   Body camera footage was not submitted as part of the application or at the final hearing.

2.   The Court notes this unusual statutory scheme requires a final hearing even after a petitioner fails to meet the initial probable cause standard of proof. Other petitions for temporary relief that survive an initial denial, only continue forward due to having an independent underlying cause of action (denial of an order of protection on a family offense petition; denial of a preliminary injunction in a civil lawsuit; denial of temporary emergency relief in an Article 81 guardianship) — whereas a TERPO application has no independent cause of action, yet a final hearing is still required.

3.   Respondent stated that there was a "pellet gun" in the home. A pellet gun does not fall within the definition of a firearm, rifle or shotgun as those terms are defined under NYS Penal Law § 265.00. Troopers observed a pocketknife in plain view in the residence.

4.   A practice that Respondent's counsel interjected comments on at the hearing.

5.   In 2022, CPLR § 6341 was amended in pertinent part to state that "[p]rovided, however, that a petitioner who is a police officer or district attorney shall file such application upon the receipt of credible information that an individual 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, unless such petitioner determines that there is no probable cause for such filing" (emphasis added). Such amendment came after the issuance of the May 18, 2022 Executive Order #19 of Gov. Hochul titled "Directing the State Police to File Extreme Risk Protection Orders and largely incorporates the language of the Executive Order.

6.   In evaluating the very specific allegations in the Petition regarding the content of the text messages that do not appear in the messages submitted into evidence by the Respondent, the Court is mindful that those messages which are alleged to have been sent by the Respondent could have been selectively deleted from Respondent's "side" of the text conversation and that it is possible that altered messages could have been submitted as evidence. However, this was not explored in testimony, and again, there were no witnesses produced by the Petitioner who could have possibly contradicted the evidence submitted by Respondent.

Jonathan G. Schopf, J.