senate Bill S2023

Increase penalties for certain crimes relating to firearms

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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

  • 09 / Jan / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • REFERRED TO CODES

Summary

Increases penalties for certain crimes relating to firearms.

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Bill Details

Versions:
S2023
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §§265.01, 265.02, 265.03, 265.09, 265.11, 265.16 & 265.17, rpld §§265.04, 265.08 & 265.13, Pen L

Sponsor Memo

BILL NUMBER:S2023

TITLE OF BILL: An act to amend the penal law, in relation to increasing
penalties for certain crimes relating to firearms, and to repeal section
265.04 of such law, relating to criminal possession of a weapon in the
first degree, section 265.08 of such law, relating to criminal use of a
firearm in the second degree and 265.13 of such law, relating to crimi-
nal sale of a firearm in the first degree

PURPOSE: To protect our citizens and further deter the criminal use of
firearms in our communities, this bill will increase the penalties for
offenses involving the possession, use, sale and purchase of firearms.

SUMMARY OF SPECIFIC PROVISIONS:

Section one amends Penal Law section 265.01 and re-titles criminal
possession in the fourth degree to a third degree offense and increases
the penalty from a class A misdemeanor to a class E felony.

Section two amends Penal Law section 265.02 and re-titles criminal
possession in the third degree to a second degree offense and increases
the penalty from a class D felony to a class C felony.

Section three amends Penal Law section 265.03 and re-titles criminal
possession in the second degree to a first degree offense and increases
the penalty from a class C felony to a class B felony. Incorporates the
explosive substance elements of possession originally included in Penal
law section 255.04.

Section four repeals Penal Law section 265.04, the previous section for
criminal possession of a weapon in the first degree.

Section five repeals Penal law section 265.08, the previous section for
criminal use of a weapon in the second degree.

Section six amends Penal Law section 265.05 for criminal use of a
firearm, making all criminal use of a firearm in the commission of a
class B or C felony, an additional class B felony offense.

Section seven amends Penal Law section 265.11 and re-titles criminal
sale of a firearm in the third degree to a second degree offense and
increases the Penalty from a class D felony to a class C felony.

Section eight repeals Penal Law section 265.13 the previous section for
criminal sale of a weapon in the first degree.

Section nine amends Penal Law section 265.16, increasing the penalty for
criminal sale of a firearm to a minor from a C felony to a B felony.

Section ten amends Penal Law section 265.17, increasing the penalty for
criminal purchase of a weapon from a class A misdemeanor to a class E
felony.

Section eleven sets the effective date as immediately and applying to
all offenses committed on or after such date.

JUSTIFICATION: New York continues to struggle with gun violence permeat-
ing our neighborhoods and streets. Laws have been put in place to deter
the illegal use of guns, and put those who put our citizens at risk by
using guns behind bars. By strengthening our existing laws, increasing
the penalties to crimes associated with the criminal possession, use,
sale, and illegal purchasing of guns and making at minimum the
possession of a deadly weapon a felony offense - we will continue to
deter and punish those who make our communities less safe.

LEGISLATIVE HISTORY: This is a new bill, similar legislation to increase
penalties for use and possession of firearms was introduced as S.6350
(2012).

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This shall take effect immediately and shall apply to
offenses committed on and after such date.

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

                                  2023

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced  by  Sen. MARTINS -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the penal law, in relation to increasing  penalties  for
  certain  crimes  relating to firearms, and to repeal section 265.04 of
  such law, relating to criminal possession of a  weapon  in  the  first
  degree,  section  265.08  of  such  law, relating to criminal use of a
  firearm in the second degree and 265.13 of such law, relating to crim-
  inal sale of a firearm in the first degree

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section 265.01 of the penal law, as added by chapter 1041
of the laws of 1974, subdivision 1 as amended by chapter 257 of the laws
of 2008, subdivision 2 as amended by chapter 220 of the  laws  of  1988,
subdivision 3 as amended by chapter 199 of the laws of 2006, subdivision
4  as amended by chapter 357 of the laws of 2011, subdivision 7 as added
by chapter 807 of the laws of 1981 and subdivision 8 as added by chapter
646 of the laws of 1986, is amended to read as follows:
S 265.01 Criminal possession of a weapon in the [fourth] THIRD degree.
  A person is guilty of criminal possession of a weapon in the  [fourth]
THIRD degree when:
  (1)  He  or she possesses any firearm, electronic dart gun, electronic
stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal
knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles,
metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type sling-
shot or slungshot, shirken or "Kung Fu star"; or
  (2) He OR SHE possesses any  dagger,  dangerous  knife,  dirk,  razor,
stiletto,  imitation pistol, or any other dangerous or deadly instrument
or weapon with intent to use the same unlawfully against another; or
  (3) He or she knowingly has in his or her possession a rifle,  shotgun
or  firearm  in  or  upon  a  building  or grounds, used for educational

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07201-01-3

S. 2023                             2

purposes, of any school, college  or  university,  except  the  forestry
lands, wherever located, owned and maintained by the State University of
New York college of environmental science and forestry, or upon a school
bus as defined in section one hundred forty-two of the vehicle and traf-
fic  law, without the written authorization of such educational institu-
tion; or
  (4) He OR SHE possesses  a  rifle,  shotgun,  antique  firearm,  black
powder  rifle,  black powder shotgun, or any muzzle-loading firearm, and
has been convicted of a felony or serious offense; or
  (5) He OR SHE possesses any dangerous or deadly weapon and  is  not  a
citizen of the United States; or
  (6)  He  OR  SHE  is  a  person who has been certified not suitable to
possess a rifle or shotgun, as defined in subdivision sixteen of section
265.00, and refuses to yield possession of such rifle  or  shotgun  upon
the demand of a police officer. Whenever a person is certified not suit-
able to possess a rifle or shotgun, a member of the police department to
which  such  certification is made, or of the state police, shall forth-
with seize any rifle or shotgun possessed by such  person.  A  rifle  or
shotgun  seized  as herein provided shall not be destroyed, but shall be
delivered to the  headquarters  of  such  police  department,  or  state
police,  and  there  retained  until  the aforesaid certificate has been
rescinded by the director or physician in charge, or  other  disposition
of  such  rifle  or shotgun has been ordered or authorized by a court of
competent jurisdiction[.]; OR
  (7) He OR SHE knowingly possesses a  bullet  containing  an  explosive
substance designed to detonate upon impact[.]; OR
  (8)  He  OR SHE possesses any armor piercing ammunition with intent to
use the same unlawfully against another.
  Criminal possession of a weapon in the  [fourth]  THIRD  degree  is  a
class [A misdemeanor] E FELONY.
  S 2. Section 265.02 of the penal law, as amended by chapter 764 of the
laws of 2005, is amended to read as follows:
S 265.02 Criminal possession of a weapon in the [third] SECOND degree.
  A  person  is guilty of criminal possession of a weapon in the [third]
SECOND degree when:
  (1) Such person commits the crime of criminal possession of  a  weapon
in  the  [fourth] THIRD degree as defined in subdivision one, two, three
or five of section 265.01, and has  been  previously  convicted  of  any
crime; or
  (2) Such person possesses any explosive or incendiary bomb, bombshell,
firearm  silencer, machine-gun or any other firearm or weapon simulating
a machine-gun and which is adaptable for such use; or
  (3) Such person knowingly possesses a machine-gun, firearm,  rifle  or
shotgun  which  has  been  defaced  for  the  purpose  of concealment or
prevention of the detection of a crime or misrepresenting  the  identity
of such machine-gun, firearm, rifle or shotgun; or
  (5)  (i)  Such  person  possesses three or more firearms; or (ii) such
person possesses a firearm and has been previously convicted of a felony
or a class A misdemeanor defined in this chapter within the  five  years
immediately  preceding the commission of the offense and such possession
did not take place in the person's home or place of business; or
  (6) Such person knowingly possesses any disguised gun; or
  (7) Such person possesses an assault weapon; or
  (8) Such person possesses a large capacity ammunition feeding device.
  Criminal possession of a weapon in the  [third]  SECOND  degree  is  a
class [D] C felony.

S. 2023                             3

  S 3. Section 265.03 of the penal law, as amended by chapter 742 of the
laws of 2006, subdivisions 1 and 3 as amended by chapter 745 of the laws
of 2006, is amended to read as follows:
S 265.03 Criminal possession of a weapon in the [second] FIRST degree.
  A  person is guilty of criminal possession of a weapon in the [second]
FIRST degree when:
  (1) with intent to use  the  same  unlawfully  against  another,  such
person:
  (a) possesses a machine-gun; or
  (b) possesses a loaded firearm; or
  (c) possesses a disguised gun; or
  (D)  POSSESSES  ANY  EXPLOSIVE  SUBSTANCE  WITH INTENT TO USE THE SAME
UNLAWFULLY AGAINST THE PERSON OR PROPERTY OF ANOTHER; OR
  (2) such person possesses five or more firearms; or
  (3) such person possesses any loaded firearm.  Such  possession  shall
not, except as provided in subdivision one or seven of section 265.02 of
this  article,  constitute  a  violation  of  this  subdivision  if such
possession takes place in such person's home or place of business.
  Criminal possession of a weapon in the  [second]  FIRST  degree  is  a
class [C] B felony.
  S 4. Section 265.04 of the penal law is REPEALED.
  S 5. Section 265.08 of the penal law is REPEALED.
  S 6. 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 OR ANY
CLASS C VIOLENT FELONY OFFENSE AS DEFINED IN PARAGRAPH (B)  OF  SUBDIVI-
SION ONE OF SECTION 70.02 and he OR SHE 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) 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 consecutive sentence of five  years  to
the  minimum term of an indeterminate sentence imposed on the underlying
class B OR CLASS C violent felony offense where the person convicted  of
such  crime  displays a loaded weapon from which a shot, readily capable
of producing death or other serious injury may be discharged, in  furth-
erance  of  the  commission  of such crime, provided, however, that such
additional sentence shall not be imposed if the court, having regard  to
the nature and circumstances of the crime and to the history and charac-
ter  of  the defendant, finds on the record that such additional consec-
utive sentence would be unduly harsh and that not imposing such sentence
would be consistent with the public safety and would not  deprecate  the
seriousness of the crime.  Notwithstanding any other provision of law to
the  contrary,  the  aggregate of the five year consecutive term imposed
pursuant to this subdivision and the minimum term of  the  indeterminate
sentence  imposed  on  the  underlying class B OR CLASS C 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 aggre-

S. 2023                             4

gate  minimum  term  and  shall not be eligible for release on parole or
conditional 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.
  S 7. Section 265.11 of the penal law, as amended by chapter 764 of the
laws of 2005, is amended to read as follows:
S 265.11 Criminal sale of a firearm in the [third] SECOND degree.
  A person is guilty of criminal sale of a firearm in the [third] SECOND
degree when such person is not authorized pursuant to law to  possess  a
firearm and such person unlawfully either:
  (1) sells, exchanges, gives or disposes of a firearm or large capacity
ammunition feeding device to another person; or
  (2) possesses a firearm with the intent to sell it.
  Criminal sale of a firearm in the [third] SECOND degree is a class [D]
C felony.
  S 8. Section 265.13 of the penal law is REPEALED.
  S  9.  Section 265.16 of the penal law, as added by chapter 600 of the
laws of 1992, the closing paragraph as amended by  chapter  654  of  the
laws of 1998, is amended to read as follows:
S 265.16 Criminal sale of a firearm to a minor.
  A person is guilty of criminal sale of a firearm to a minor when he OR
SHE is not authorized pursuant to law to possess a firearm and he OR SHE
unlawfully  sells,  exchanges, gives or disposes of a firearm to another
person who is or reasonably appears to be less than  nineteen  years  of
age who is not licensed pursuant to law to possess a firearm.
  Criminal sale of a firearm to a minor is a class [C] B felony.
  S  10. Section 265.17 of the penal law, as added by chapter 189 of the
laws of 2000, is amended to read as follows:
S 265.17 Criminal purchase of a weapon.
  A person is guilty of criminal purchase of a weapon when:
  1. Knowing that he or she is  prohibited  by  law  from  possessing  a
firearm,  rifle  or  shotgun because of a prior conviction or because of
some other disability which  would  render  him  or  her  ineligible  to
lawfully  possess a firearm, rifle or shotgun in this state, such person
attempts to purchase a firearm, rifle or shotgun from another person; or
  2. Knowing that it would be unlawful for another person to  possess  a
firearm, rifle or shotgun, he or she purchases a firearm, rifle or shot-
gun for, on behalf of, or for the use of such other person.
  Criminal purchase of a weapon is a class [A misdemeanor] E FELONY.
  S  11.  This  act  shall  take  effect  immediately and shall apply to
offenses committed on or after such date.

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