senate Bill S1407A

Amended

Creates the offense of criminal use of a firearm in connection with a crime; repealer

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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actions

  • 07 / Jan / 2011
    • REFERRED TO CODES
  • 29 / Mar / 2011
    • 1ST REPORT CAL.265
  • 30 / Mar / 2011
    • 2ND REPORT CAL.
  • 31 / Mar / 2011
    • ADVANCED TO THIRD READING
  • 11 / Apr / 2011
    • AMENDED ON THIRD READING 1407A
  • 14 / Jun / 2011
    • PASSED SENATE
  • 14 / Jun / 2011
    • DELIVERED TO ASSEMBLY
  • 14 / Jun / 2011
    • REFERRED TO CODES
  • 04 / Jan / 2012
    • DIED IN ASSEMBLY
  • 04 / Jan / 2012
    • RETURNED TO SENATE
  • 04 / Jan / 2012
    • REFERRED TO CODES
  • 23 / Feb / 2012
    • AMEND AND RECOMMIT TO CODES
  • 23 / Feb / 2012
    • PRINT NUMBER 1407B
  • 01 / Mar / 2012
    • 1ST REPORT CAL.265
  • 05 / Mar / 2012
    • 2ND REPORT CAL.
  • 06 / Mar / 2012
    • ADVANCED TO THIRD READING
  • 21 / Mar / 2012
    • PASSED SENATE
  • 21 / Mar / 2012
    • DELIVERED TO ASSEMBLY
  • 21 / Mar / 2012
    • REFERRED TO CODES

Summary

Relates to criminal use of a firearm in the first degree.

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Bill Details

See Assembly Version of this Bill:
A5904A
Versions:
S1407
S1407A
S1407B
Legislative Cycle:
2011-2012
Current Committee:
Assembly Codes
Law Section:
Penal Law
Laws Affected:
Amd §§265.09 & 70.02, rpld §265.08, Pen L; amd §509-cc, V & T L; amd §410, Gen Bus L
Versions Introduced in Previous Legislative Cycles:
2009-2010: S2110A
2007-2008: S208

Sponsor Memo

BILL NUMBER:S1407A

TITLE OF BILL:

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 relating thereto

PURPOSE:

The purpose of this bill is to provide stiffer sentences to criminals
who use firearms to commit felonies.

SUMMARY OF PROVISIONS:

Section one amends the definition of criminal use of a firearm in the
first degree to include displaying a firearm in the commission of any
felony as opposed to just class B violent felonies.

Section two repeals criminal use of a firearm in the second degree (a
class C felony), this effectively upgrades all instances of criminal
use of a firearm to class B violent felonies.

Section three is technical and updates the cross references in law.

JUSTIFICATION:

The use of firearms to commit violent crimes and terrorize the general
populace is barbaric and unacceptable in any advanced civilization.
However, citizens of the united States of America have a
constitutionally guaranteed right to keep and bear arms for their own
purposes including hunting, recreation, collecting, self defense, to
protect their families, to protect their homes or any other lawful
purpose that the individual citizen may desire. These rights have
been recently upheld in the Supreme Court cases of District of
Columbia v. Heller and McDonald v. Chicago.

Nonetheless, for a free society to flourish there has to be a
respected rule of law. Hence, it is essential that people who use
force to terrorize and prey upon others be punished to the fullest
extent of the law, and that the laws be strong enough to make use a
firearm in the commission of a crime unthinkable.

LEGISLATIVE HISTORY:

S.2110 of 2010 - Referred to Codes

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:


This act shall take effect on the first of November next succeeding
the date on which it shall have become law.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 1407--A
    Cal. No. 265

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                             January 7, 2011
                               ___________

Introduced by Sens. GOLDEN, DeFRANCISCO, GRIFFO, JOHNSON, LANZA, LARKIN,
  LAVALLE,  MAZIARZ,  SALAND -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes -- reported  favora-
  bly  from  said committee, ordered to first and second report, ordered
  to a third reading, amended and ordered reprinted, retaining its place
  in the order of third reading

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:

  Section 1. Section 265.09 of the penal law, as amended by chapter  650
of the laws of 1996, is amended to read as follows:
S 265.09 Criminal use of a firearm in the first degree.
  (1)  A  person  is  guilty  of  criminal use of a firearm in the first
degree when he OR SHE commits any [class B violent] felony  offense  [as
defined  in  paragraph  (a)  of subdivision one of section 70.02] and he
[either:
  (a) possesses a deadly weapon, if the weapon is a loaded  weapon  from
which a shot, readily capable of producing death or other serious injury
may be discharged; or
  (b)]  OR  SHE  displays  what appears to be a pistol, revolver, rifle,
shotgun, machine gun or other firearm.
  Criminal use of a firearm in the first degree is a class B felony.
  (2) Sentencing. Notwithstanding any other  provision  of  law  to  the
contrary, when a person is convicted of criminal use of a firearm in the
first  degree  as  defined in subdivision one of this section, the court
shall impose [an additional] A consecutive sentence of five years to the
minimum term of [an indeterminate] THE sentence imposed on the  underly-
ing  [class B violent] felony offense where the person convicted of such

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD04651-02-1

S. 1407--A                          2

crime displays a loaded weapon from which a  shot,  readily  capable  of
producing  death  or other serious injury may be discharged, in further-
ance of the commission of such crime, provided, however, that such addi-
tional  sentence shall not be imposed if the court, having regard to the
nature and circumstances of the crime and to the history  and  character
of  the  defendant, finds on the record that such additional consecutive
sentence would be unduly harsh and that not imposing such sentence would
be consistent with the public safety and would not deprecate  the  seri-
ousness of the crime.  Notwithstanding any other provision of law to the
contrary, the aggregate of the five year consecutive term imposed pursu-
ant  to  this  subdivision  and  the minimum term of the [indeterminate]
sentence imposed on  the  underlying  [class  B  violent]  felony  shall
constitute  the new aggregate minimum term of imprisonment, and a person
subject to such term shall be required to  serve  the  entire  aggregate
minimum  term  and shall not be eligible for release on parole or condi-
tional release during such term. This subdivision shall not apply  where
the  defendant's  criminal liability for displaying a loaded weapon from
which a shot, readily capable of producing death or other serious injury
may be discharged, in furtherance of the commission of crime is based on
the conduct of another pursuant to section 20.00 of [the penal law] THIS
CHAPTER.
  S 2. Section 265.08 of the penal law is REPEALED.
  S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
as amended by chapter 405 of the laws of 2010, is  amended  to  read  as
follows:
  (b)  Class  C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision;  aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated  manslaughter  in  the second degree as defined in section 125.21,
aggravated sexual abuse in the  second  degree  as  defined  in  section
130.67, assault on a peace officer, police officer, fireman or emergency
medical services professional as defined in section 120.08, gang assault
in  the second degree as defined in section 120.06, strangulation in the
first degree as defined in section 121.13, burglary in the second degree
as defined in section 140.25, robbery in the second degree as defined in
section 160.10, criminal possession of a weapon in the second degree  as
defined  in  section  265.03,  [criminal  use of a firearm in the second
degree as defined in section 265.08,] criminal sale of a firearm in  the
second  degree  as defined in section 265.12, criminal sale of a firearm
with the aid of a minor as defined  in  section  265.14,  soliciting  or
providing support for an act of terrorism in the first degree as defined
in  section  490.15,  hindering  prosecution  of terrorism in the second
degree as defined in section 490.30, and criminal possession of a chemi-
cal weapon or biological weapon  in  the  third  degree  as  defined  in
section 490.37.
  S  4.  Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 405  of  the  laws  of  2010,  is
amended to read as follows:
  (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
subdivision one and subparagraph (i) of paragraph (c) of subdivision two
of this section that result in disqualification for  a  period  of  five
years  shall include a conviction under sections 100.10, 105.13, 115.05,
120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
125.13,  125.14, 125.40, 125.45, 130.20, 130.25, 130.55, 135.10, 135.55,
140.17, 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10,  220.06,
220.09,  220.16, 220.31, 220.34, 220.60, 221.30, 221.50, 221.55, 230.00,

S. 1407--A                          3

230.05, 230.06, 230.20, 230.25, 230.30, 230.32, 235.05, 235.06,  235.07,
235.21,  240.06,  245.00,  260.10, subdivision two of section 260.20 and
sections 260.25,  265.02,  265.03,  [265.08,]  265.09,  265.10,  265.12,
265.35  of  the  penal  law or an attempt to commit any of the aforesaid
offenses under section 110.00 of the penal law, or any similar  offenses
committed  under  a  former  section  of  the penal law, or any offenses
committed under a former section of the penal law which would constitute
violations of the aforesaid sections of the penal law, or  any  offenses
committed  outside  this  state which would constitute violations of the
aforesaid sections of the penal law.
  S 5. The opening paragraph  of  paragraph  (f)  of  subdivision  1  of
section  410 of the general business law, as added by chapter 509 of the
laws of 1992, is amended to read as follows:
  Conviction of any of the following crimes subsequent to  the  issuance
of  a  license  pursuant  to  this article:   fraud pursuant to sections
170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and  190.65;  falsifying
business  records  pursuant to section 175.10; grand larceny pursuant to
article 155;  bribery  pursuant  to  sections  180.03,  180.08,  180.15,
180.25,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
sections 120.05, 120.10, 120.11, 120.12;  robbery  pursuant  to  article
160;  homicide  pursuant  to  sections  125.25  and 125.27; manslaughter
pursuant to sections 125.15 and 125.20; kidnapping and  unlawful  impri-
sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
possession  pursuant to sections 265.02, 265.03 and 265.04; criminal use
of a weapon pursuant to [sections 265.08 and] SECTION  265.09;  criminal
sale  of  a  weapon  pursuant  to  sections  265.11  and 265.12; and sex
offenses pursuant to article 130 of the penal  law.  Provided,  however,
that  for  the  purposes of this article, none of the following shall be
considered criminal convictions or reported as such:  (i)  a  conviction
for  which an executive pardon has been issued pursuant to the executive
law; (ii) a conviction which has been vacated and replaced by a youthful
offender finding pursuant to article seven hundred twenty of the  crimi-
nal  procedure  law,  or  the  applicable provisions of law of any other
jurisdiction; or (iii) a conviction  the  records  of  which  have  been
expunged  or sealed pursuant to the applicable provisions of the laws of
this state or of any other jurisdiction; and (iv) a conviction for which
other evidence of successful rehabilitation to remove the disability has
been issued.
  S 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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