N.Y. Comp. Codes R. & Regs. tit. 9 § 515.10

Current through Register Vol. 46, No. 50, December 11, 2024

Section 515.10 - Apprehension of persons

See section 516.3 of this Title for more detailed procedures).

(a) Apprehension in AWOL cases.

(1) The apprehension of persons AWOL is explicitly authorized by New York State Military Law, section 130.7:

(i) Apprehension is the taking into custody of a person.

(ii) Any person authorized under regulations issued pursuant to this Part (see Rule 302, N.Y.R.C.M.) to apprehend persons subject to this code, any marshal of a court-martial appointed pursuant to the provisions of this Part and any peace officer acting pursuant to his special duties or police officer may apprehend persons subject to this code upon reasonable belief that an offense has been committed and that the person apprehended committed it.

(2) Apprehension in the New York Military Law is the equivalent of "arrest" in civilian terminology, and there must be grounds for ordering a person to be apprehended. The person must be subject to the jurisdiction of the New York Military Law; i.e., presently a member of the organized militia and there must be probable cause to apprehend the person. Probable cause to apprehend exists when there are reasonable grounds to believe that an offense (AWOL) has been or is being committed and the person to be apprehended committed or is committing it. Reasonable grounds means that there must be the kind of reliable information that a reasonably prudent person would rely on which makes it more likely than not that something is true. The person who determines probable cause may rely on the reports of others.

(3) The person authorizing or ordering apprehension shall be the immediate commander of the person about whom a report of an AWOL offense was received. The commander, in conjunction with authorizing or ordering an apprehension; shall cause to be prepared DMNA form 1057, Non-Judicial Punishment, or DMNA form 1050, a courts-martial Charge Sheet setting forth the charges and specifications of the alleged offense. A copy of DMNA form 1057 or DMNA form 1050 shall be attached to a written Order or Authorization for Apprehension, DMNA form 1062. (See Appendix L-2 [A24]). The DMNA form 1062 and supporting papers will be reviewed by a judge advocate who shall initial under the authorizing signature, and the order of apprehension shall be delivered to the person who or agency which shall execute the apprehension.

(4) The person making the apprehension must be one authorized to do so by Rule 302(b) N.Y.R.C.M. An apprehension for an AWOL offense shall be made by military law enforcement officials, civilian law enforcement officials, or, commissioned, warrant, petty and noncommissioned officers (E-8 or above) on either an IDT, AT or state active duty status. Whenever possible, apprehension should be carried out by or in conjunction with state, city or local policy or local sheriffs' departments. Where no state, city or local police or sheriffs' department personnel are available, apprehension may be executed by unit personnel without law enforcement assistance, only if the use of force is not required or utilized. Under no circumstances are unit personnel to use handcuffs or other restraining devices.

(5) Apprehension, as used in the context of AWOL recovery, is not meant to be a form of restraint, and must not be construed or treated as a form of punishment, detention or confinement. Discipline or punishment of AWOL cases can only be administered through the article 15 or court-martial process.

(6) Apprehension herein is utilized only to secure the delivery of a person to his unit while in a drill or AT status for purposes of disciplining the individual. The use of physical force, restraint or coercion by unit members is not authorized. NOTE: Paragraphs (7) and (8) of this subdivision are not applicable if apprehension is being effected by a peace officer, i.e., State Police, Sheriff's Office personnel or local police officers.

(7) Apprehension is made by clearly notifying the person to be apprehended that he is in custody. Such notification should be in substantially the following format:

Are you (name and rank of AWOL service member)?

Pursuant to the order of ________ Commander of ________ and a warrant for apprehension dated (hand copy of warrant and charge sheet to person being detained) you are being taken into custody for violation of the State Code of Military Justice, New York State Military Law, section 130.82 for being absent without leave. You are directed to accompany me to the armory pursuant to the aforesaid warrant.

This notice must be given orally or in writing by the person making the apprehension, and force or restraint to effect custody must not be used, if performed by unit personnel. Any person or persons making an apprehension should maintain custody of the person apprehended and deliver to and inform as promptly as possible the immediate commander of the person apprehended or any official higher in the chain of command of the person apprehended if it is impractical to inform the immediate commander.

(8) In the event the person being taken into custody refuses to accompany the apprehending official back to the armory, such person should be given a notice in substantially the following format:

Your refusal to accompany me pursuant to an order of your commander and the warrant for apprehension is a further violation of the State Code of Military Justice and may result in further charges, and additional judicial proceedings pursuant to the State Code of Military Justice. Such proceedings could result in a less-than-honorable discharge and/or confinement in a civilian jail.

(9) The failure or refusal of the person apprehended to cooperate or to remain at drill or AT may result in a further violation of the New York Military Law, but such action on the part of the person apprehended is not a reason or cause for any person, other than a peace officer, to use physical force, restraint or detention to prevent the person apprehended from leaving.

(10) An apprehension by unit personnel may be made at any time or any place except by means of entering a private dwelling where the person to be apprehended resides. In other words apprehensions at personal residences are only permissible to the extent of being "pursuant to at-the-door" contact with the individual to be apprehended. Of course, law enforcement personnel may enter if they so choose, to carry out our warrants.

(11) A person who is not a resident of a private dwelling entered may not challenge the legality of an apprehension made without a search or arrest warrant, but the persons making an apprehension do not have authority to execute civilian arrest or search warrants.

(12) A complete written report of the apprehension, including date, time and location thereof shall be filed with the immediate commander of the person apprehended as soon as reasonably practicable after the apprehension is made.

(13) In the case of apprehensions made pursuant to courts-martial charges, unit personnel should attempt to serve a copy of the charge sheet on the accused prior to the issuance of a warrant for apprehension. (See sections 516.3[h], 516.6[b] and 516.8[d] of this Title). This is well advised because if the individual has been notified of the charges by service of the charge sheet (so as to satisfy the rule requirements of having the opportunity to prepare a defense) then the court-martial may proceed upon the individual being brought before the court-martial by execution of the warrant for apprehension. If not, then all that can be accomplished when the individual is first brought in is service of the charge sheet and arraignment (reading of the charges and taking of a plea).

N.Y. Comp. Codes R. & Regs. Tit. 9 § 515.10