S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        2237--A
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   January 15, 2013
                                      ___________
       Introduced  by  Sens.  GOLDEN, AVELLA -- read twice and ordered printed,
         and when printed to be committed to the Committee on Codes --  commit-
         tee  discharged, bill amended, ordered reprinted as amended and recom-
         mitted to said committee
       AN ACT to amend the penal law, the  vehicle  and  traffic  law  and  the
         general  business law, in relation to criminal use of a firearm in the
         first degree and to repeal certain provisions of the penal law  relat-
         ing thereto
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Section 265.09 of the penal law, as amended by chapter  650
    2  of the laws of 1996, is amended to read as follows:
    3  S 265.09 Criminal use of a firearm in the first degree.
    4    (1)  A  person  is  guilty  of  criminal use of a firearm in the first
    5  degree when he OR SHE commits any [class B violent] felony  offense  [as
    6  defined  in  paragraph  (a)  of subdivision one of section 70.02] and he
    7  [either:
    8    (a) possesses a deadly weapon, if the weapon is a loaded  weapon  from
    9  which a shot, readily capable of producing death or other serious injury
   10  may be discharged; or
   11    (b)]  OR  SHE  displays  what appears to be a pistol, revolver, rifle,
   12  shotgun, machine gun or other firearm.
   13    Criminal use of a firearm in the first degree is a class B felony.
   14    (2) Sentencing. Notwithstanding any other  provision  of  law  to  the
   15  contrary, when a person is convicted of criminal use of a firearm in the
   16  first  degree  as  defined in subdivision one of this section, the court
   17  shall impose [an additional] A consecutive sentence of five years to the
   18  minimum term of [an indeterminate] THE sentence imposed on the  underly-
   19  ing  [class B violent] felony offense where the person convicted of such
   20  crime displays [a loaded weapon from which a shot,  readily  capable  of
   21  producing death or other serious injury may be discharged,] WHAT APPEARS
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03184-02-3
       S. 2237--A                          2
    1  TO  BE  A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM
    2  in furtherance of the commission of such crime, provided, however,  that
    3  such  additional  sentence  shall  not  be  imposed if the court, having
    4  regard  to  the nature and circumstances of the crime and to the history
    5  and character of the defendant, finds on the record that such additional
    6  consecutive sentence would be unduly harsh and that  not  imposing  such
    7  sentence would be consistent with the public safety and would not depre-
    8  cate  the seriousness of the crime.  Notwithstanding any other provision
    9  of law to the contrary, the aggregate of the five year consecutive  term
   10  imposed  pursuant to this subdivision and the minimum term of the [inde-
   11  terminate] sentence imposed on the underlying [class B  violent]  felony
   12  shall  constitute  the new aggregate minimum term of imprisonment, and a
   13  person subject to such term shall be required to serve the entire aggre-
   14  gate minimum term and shall not be eligible for  release  on  parole  or
   15  conditional  release  during such term. This subdivision shall not apply
   16  where the defendant's criminal liability for displaying [a loaded weapon
   17  from which a shot, readily capable of producing death or  other  serious
   18  injury may be discharged,] WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,
   19  SHOTGUN,  MACHINE  GUN OR OTHER FIREARM in furtherance of the commission
   20  of crime is based on the conduct of another pursuant to section 20.00 of
   21  [the penal law] THIS CHAPTER.
   22    S 1-a. Subdivision 2 of section 265.09 of the penal law, as amended by
   23  chapter 1 of the laws of 2013, is amended to read as follows:
   24    (2) Sentencing. Notwithstanding any other  provision  of  law  to  the
   25  contrary, when a person is convicted of criminal use of a firearm in the
   26  first  degree  as  defined in subdivision one of this section, the court
   27  shall impose [an additional] A consecutive sentence of five years to the
   28  sentence imposed on the underlying  [class  B  violent]  felony  offense
   29  where  the person convicted of such crime displays [a loaded weapon from
   30  which a shot, readily capable of producing death or other serious injury
   31  may be discharged,] WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,  SHOT-
   32  GUN,  MACHINE  GUN  OR OTHER FIREARM in furtherance of the commission of
   33  such crime, provided, however, that such additional sentence  shall  not
   34  be  imposed  if the court, having regard to the nature and circumstances
   35  of the crime and to the history and character of the defendant, finds on
   36  the record that such additional consecutive  sentence  would  be  unduly
   37  harsh  and  that not imposing such sentence would be consistent with the
   38  public safety and would not deprecate  the  seriousness  of  the  crime.
   39  Notwithstanding  any  other provision of law to the contrary, the aggre-
   40  gate of the five year consecutive term imposed pursuant to this subdivi-
   41  sion and the minimum term of the [indeterminate] sentence imposed on the
   42  underlying [class B violent] felony shall constitute the  new  aggregate
   43  minimum term of imprisonment, and a person subject to such term shall be
   44  required  to  serve  the  entire aggregate minimum term and shall not be
   45  eligible for release on parole or conditional release during such  term.
   46  This  subdivision shall not apply where the defendant's criminal liabil-
   47  ity for displaying [a loaded weapon from which a shot,  readily  capable
   48  of  producing  death  or  other  serious injury may be discharged,] WHAT
   49  APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN  OR  OTHER
   50  FIREARM  in  furtherance  of  the  commission  of  crime is based on the
   51  conduct of another pursuant to section 20.00 of this chapter.
   52    S 2. Section 265.08 of the penal law is REPEALED.
   53    S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
   54  as amended by chapter 148 of the laws of 2011, is  amended  to  read  as
   55  follows:
       S. 2237--A                          3
    1    (b)  Class  C violent felony offenses: an attempt to commit any of the
    2  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
    3  vated criminally negligent homicide as defined in section 125.11, aggra-
    4  vated  manslaughter  in  the second degree as defined in section 125.21,
    5  aggravated  sexual  abuse  in  the  second  degree as defined in section
    6  130.67, assault on a peace officer, police officer, fireman or emergency
    7  medical services professional as defined in section 120.08, assault on a
    8  judge as defined in section 120.09, gang assault in the second degree as
    9  defined in section 120.06, strangulation in the first degree as  defined
   10  in  section  121.13, burglary in the second degree as defined in section
   11  140.25, robbery in the second degree as defined in section 160.10, crim-
   12  inal possession of a weapon in the second degree as defined  in  section
   13  265.03,  [criminal  use  of a firearm in the second degree as defined in
   14  section 265.08,] criminal sale of a firearm  in  the  second  degree  as
   15  defined  in section 265.12, criminal sale of a firearm with the aid of a
   16  minor as defined in section 265.14, soliciting or providing support  for
   17  an  act  of  terrorism in the first degree as defined in section 490.15,
   18  hindering prosecution of terrorism in the second degree  as  defined  in
   19  section  490.30, and criminal possession of a chemical weapon or biolog-
   20  ical weapon in the third degree as defined in section 490.37.
   21    S 3-a. Paragraph (b) of subdivision 1 of section 70.02  of  the  penal
   22  law,  as amended by chapter 1 of the laws of 2013, is amended to read as
   23  follows:
   24    (b) Class C violent felony offenses: an attempt to commit any  of  the
   25  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
   26  vated criminally negligent homicide as defined in section 125.11, aggra-
   27  vated manslaughter in the second degree as defined  in  section  125.21,
   28  aggravated  sexual  abuse  in  the  second  degree as defined in section
   29  130.67, assault on a peace officer, police officer, fireman or emergency
   30  medical services professional as defined in section 120.08, assault on a
   31  judge as defined in section 120.09, gang assault in the second degree as
   32  defined in section 120.06, strangulation in the first degree as  defined
   33  in  section  121.13, burglary in the second degree as defined in section
   34  140.25, robbery in the second degree as defined in section 160.10, crim-
   35  inal possession of a weapon in the second degree as defined  in  section
   36  265.03,  [criminal  use  of a firearm in the second degree as defined in
   37  section 265.08,] criminal sale of a firearm  in  the  second  degree  as
   38  defined  in section 265.12, criminal sale of a firearm with the aid of a
   39  minor as defined in section 265.14, aggravated criminal possession of  a
   40  weapon as defined in section 265.19, soliciting or providing support for
   41  an  act  of  terrorism in the first degree as defined in section 490.15,
   42  hindering prosecution of terrorism in the second degree  as  defined  in
   43  section  490.30, and criminal possession of a chemical weapon or biolog-
   44  ical weapon in the third degree as defined in section 490.37.
   45    S 4. Paragraph (c) of subdivision 4 of section 509-cc of  the  vehicle
   46  and  traffic  law,  as  amended  by  chapter 400 of the laws of 2011, is
   47  amended to read as follows:
   48    (c) The offenses referred to in subparagraph (i) of paragraph  (b)  of
   49  subdivision one and subparagraph (i) of paragraph (c) of subdivision two
   50  of  this  section  that  result in disqualification for a period of five
   51  years shall include a conviction under sections 100.10, 105.13,  115.05,
   52  120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
   53  125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,  140.17,
   54  140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
   55  220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,  230.00,
   56  230.05,  230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00,
       S. 2237--A                          4
    1  260.10, subdivision two of section 260.20 and sections  260.25,  265.02,
    2  265.03,  [265.08,] 265.09, 265.10, 265.12, 265.35 of the penal law or an
    3  attempt to commit any of the aforesaid offenses under section 110.00  of
    4  the  penal law, or any similar offenses committed under a former section
    5  of the penal law, or any offenses committed under a  former  section  of
    6  the  penal  law  which  would  constitute  violations  of  the aforesaid
    7  sections of the penal law, or any offenses committed outside this  state
    8  which would constitute violations of the aforesaid sections of the penal
    9  law.
   10    S  5.  The  opening  paragraph  of  paragraph  (f) of subdivision 1 of
   11  section 410 of the general business law, as added by chapter 509 of  the
   12  laws of 1992, is amended to read as follows:
   13    Conviction  of  any of the following crimes subsequent to the issuance
   14  of a license pursuant to this  article:    fraud  pursuant  to  sections
   15  170.10,  170.15,  176.15,  176.20, 176.25, 176.30 and 190.65; falsifying
   16  business records pursuant to section 175.10; grand larceny  pursuant  to
   17  article  155;  bribery  pursuant  to  sections  180.03,  180.08, 180.15,
   18  180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45,  200.50;
   19  perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
   20  sections  120.05,  120.10,  120.11,  120.12; robbery pursuant to article
   21  160; homicide pursuant  to  sections  125.25  and  125.27;  manslaughter
   22  pursuant  to  sections 125.15 and 125.20; kidnapping and unlawful impri-
   23  sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
   24  possession pursuant to sections 265.02, 265.03 and 265.04; criminal  use
   25  of  a  weapon pursuant to [sections 265.08 and] SECTION 265.09; criminal
   26  sale of a [weapon] FIREARM pursuant to sections 265.11 and  265.12;  and
   27  sex  offenses pursuant to article 130 of the penal law. Provided, howev-
   28  er, that for the purposes of this article, none of the  following  shall
   29  be considered criminal convictions or reported as such: (i) a conviction
   30  for  which an executive pardon has been issued pursuant to the executive
   31  law; (ii) a conviction which has been vacated and replaced by a youthful
   32  offender finding pursuant to article seven hundred twenty of the  crimi-
   33  nal  procedure  law,  or  the  applicable provisions of law of any other
   34  jurisdiction; or (iii) a conviction  the  records  of  which  have  been
   35  expunged  or sealed pursuant to the applicable provisions of the laws of
   36  this state or of any other jurisdiction; and (iv) a conviction for which
   37  other evidence of successful rehabilitation to remove the disability has
   38  been issued.
   39    S 6. This act shall take effect on the first of November next succeed-
   40  ing the date on which it shall have become  a  law;  provided,  however,
   41  that:
   42    (a) if subdivision 2 of section 265.09 of the penal law shall not have
   43  taken  effect  on  or  before such date, section one-a of this act shall
   44  take effect on the same date as such subdivision of the penal law pursu-
   45  ant to section 42 of chapter 1 of the laws of 2013, takes effect; and
   46    (b) if paragraph (b) of subdivision 1 of section 70.02  of  the  penal
   47  law  shall not have taken effect on or before such date, section three-a
   48  of this act shall take effect on the same date as such paragraph of  the
   49  penal law pursuant to section 27 of chapter 1 of the laws of 2013, takes
   50  effect.