S T A T E O F N E W Y O R K
________________________________________________________________________
784
2015-2016 Regular Sessions
I N S E N A T E
(PREFILED)
January 7, 2015
___________
Introduced by Sen. GOLDEN -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
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, subdivision 2 as amended by chapter 1 of the laws
3 of 2013, is amended to read as follows:
4 S 265.09 Criminal use of a firearm in the first degree.
5 (1) A person is guilty of criminal use of a firearm in the first
6 degree when he OR SHE commits any [class B violent] felony offense [as
7 defined in paragraph (a) of subdivision one of section 70.02] and he OR
8 SHE either:
9 (a) possesses a deadly weapon, if the weapon is a loaded weapon from
10 which a shot, readily capable of producing death or other serious injury
11 may be discharged; or
12 (b) displays what appears to be a pistol, revolver, rifle, shotgun,
13 machine gun or other firearm.
14 Criminal use of a firearm in the first degree is a class B felony.
15 (2) Sentencing. Notwithstanding any other provision of law to the
16 contrary, when a person is convicted of criminal use of a firearm in the
17 first degree as defined in subdivision one of this section, the court
18 shall impose an additional consecutive sentence of five years to the
19 sentence imposed on the underlying [class B violent] felony offense
20 where the person convicted of such crime displays a loaded weapon from
21 which a shot, readily capable of producing death or other serious injury
22 may be discharged[,] OR WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD04536-02-5
S. 784 2
1 SHOTGUN, MACHINE GUN OR OTHER FIREARM in furtherance of the commission
2 of such crime, provided, however, that such additional sentence shall
3 not be imposed if the court, having regard to the nature and circum-
4 stances of the crime and to the history and character of the defendant,
5 finds on the record that such additional consecutive sentence would be
6 unduly harsh and that not imposing such sentence would be consistent
7 with the public safety and would not deprecate the seriousness of the
8 crime. Notwithstanding any other provision of law to the contrary, the
9 aggregate of the five year consecutive term imposed pursuant to this
10 subdivision and the minimum term of the [indeterminate] sentence imposed
11 on the underlying [class B violent] felony shall constitute the new
12 aggregate minimum term of imprisonment, and a person subject to such
13 term shall be required to serve the entire aggregate minimum term and
14 shall not be eligible for release on parole or conditional release
15 during such term. This subdivision shall not apply where the defendant's
16 criminal liability for displaying a loaded weapon from which a shot,
17 readily capable of producing death or other serious injury may be
18 discharged[,] OR WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
19 MACHINE GUN OR OTHER FIREARM in furtherance of the commission of crime
20 is based on the conduct of another pursuant to section 20.00 of this
21 chapter.
22 S 2. Section 265.08 of the penal law is REPEALED.
23 S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
24 as amended by chapter 1 of the laws of 2013, is amended to read as
25 follows:
26 (b) Class C violent felony offenses: an attempt to commit any of the
27 class B felonies set forth in paragraph (a) of this subdivision; aggra-
28 vated criminally negligent homicide as defined in section 125.11, aggra-
29 vated manslaughter in the second degree as defined in section 125.21,
30 aggravated sexual abuse in the second degree as defined in section
31 130.67, assault on a peace officer, police officer, fireman or emergency
32 medical services professional as defined in section 120.08, assault on a
33 judge as defined in section 120.09, gang assault in the second degree as
34 defined in section 120.06, strangulation in the first degree as defined
35 in section 121.13, burglary in the second degree as defined in section
36 140.25, robbery in the second degree as defined in section 160.10, crim-
37 inal possession of a weapon in the second degree as defined in section
38 265.03, [criminal use of a firearm in the second degree as defined in
39 section 265.08,] criminal sale of a firearm in the second degree as
40 defined in section 265.12, criminal sale of a firearm with the aid of a
41 minor as defined in section 265.14, aggravated criminal possession of a
42 weapon as defined in section 265.19, soliciting or providing support for
43 an act of terrorism in the first degree as defined in section 490.15,
44 hindering prosecution of terrorism in the second degree as defined in
45 section 490.30, and criminal possession of a chemical weapon or biolog-
46 ical weapon in the third degree as defined in section 490.37.
47 S 4. Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
48 and traffic law, as amended by chapter 400 of the laws of 2011, is
49 amended to read as follows:
50 (c) The offenses referred to in subparagraph (i) of paragraph (b) of
51 subdivision one and subparagraph (i) of paragraph (c) of subdivision two
52 of this section that result in disqualification for a period of five
53 years shall include a conviction under sections 100.10, 105.13, 115.05,
54 120.03, 120.04, 120.04-a, 120.05, 120.10, 120.25, 121.12, 121.13,
55 125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55, 140.17,
56 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
S. 784 3
1 220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00,
2 230.05, 230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00,
3 260.10, subdivision two of section 260.20 and sections 260.25, 265.02,
4 265.03, [265.08,] 265.09, 265.10, 265.12, 265.35 of the penal law or an
5 attempt to commit any of the aforesaid offenses under section 110.00 of
6 the penal law, or any similar offenses committed under a former section
7 of the penal law, or any offenses committed under a former section of
8 the penal law which would constitute violations of the aforesaid
9 sections of the penal law, or any offenses committed outside this state
10 which would constitute violations of the aforesaid sections of the penal
11 law.
12 S 5. The opening paragraph of paragraph (f) of subdivision 1 of
13 section 410 of the general business law, as added by chapter 509 of the
14 laws of 1992, is amended to read as follows:
15 Conviction of any of the following crimes subsequent to the issuance
16 of a license pursuant to this article: fraud pursuant to sections
17 170.10, 170.15, 176.15, 176.20, 176.25, 176.30 and 190.65; falsifying
18 business records pursuant to section 175.10; grand larceny pursuant to
19 article 155; bribery pursuant to sections 180.03, 180.08, 180.15,
20 180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
21 perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
22 sections 120.05, 120.10, 120.11, 120.12; robbery pursuant to article
23 160; homicide pursuant to sections 125.25 and 125.27; manslaughter
24 pursuant to sections 125.15 and 125.20; kidnapping and unlawful impri-
25 sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
26 possession pursuant to sections 265.02, 265.03 and 265.04; criminal use
27 of a [weapon] FIREARM pursuant to [sections 265.08 and] SECTION 265.09;
28 criminal sale of a [weapon] FIREARM pursuant to sections 265.11 and
29 265.12; and sex offenses pursuant to article 130 of the penal law.
30 Provided, however, that for the purposes of this article, none of the
31 following shall be considered criminal convictions or reported as such:
32 (i) a conviction for which an executive pardon has been issued pursuant
33 to the executive law; (ii) a conviction which has been vacated and
34 replaced by a youthful offender finding pursuant to article seven
35 hundred twenty of the criminal procedure law, or the applicable
36 provisions of law of any other jurisdiction; or (iii) a conviction the
37 records of which have been expunged or sealed pursuant to the applicable
38 provisions of the laws of this state or of any other jurisdiction; and
39 (iv) a conviction for which other evidence of successful rehabilitation
40 to remove the disability has been issued.
41 S 6. This act shall take effect on the first of November next succeed-
42 ing the date on which it shall have become a law.