senate Bill S2237B

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

  • 15 / Jan / 2013
    • REFERRED TO CODES
  • 11 / Feb / 2013
    • AMEND AND RECOMMIT TO CODES
  • 11 / Feb / 2013
    • PRINT NUMBER 2237A
  • 22 / Apr / 2013
    • REPORTED AND COMMITTED TO RULES
  • 22 / Apr / 2013
    • ORDERED TO THIRD READING CAL.387
  • 23 / Apr / 2013
    • AMENDED ON THIRD READING 2237B
  • 21 / Jun / 2013
    • RECOMMITTED TO RULES
  • 25 / Nov / 2013
    • AMEND AND RECOMMIT TO RULES
  • 25 / Nov / 2013
    • PRINT NUMBER 2237C
  • 08 / Jan / 2014
    • REFERRED TO CODES
  • 27 / Feb / 2014
    • 1ST REPORT CAL.210
  • 03 / Mar / 2014
    • AMENDED 2237D
  • 03 / Mar / 2014
    • 2ND REPORT CAL.
  • 04 / Mar / 2014
    • ADVANCED TO THIRD READING
  • 20 / Jun / 2014
    • COMMITTED TO RULES

Summary

Relates to criminal use of a firearm in the first degree; provides that the firearm displayed need not be real for additional penalties to apply.

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Bill Details

See Assembly Version of this Bill:
A7000
Versions:
S2237
S2237A
S2237B
S2237C
S2237D
Legislative Cycle:
2013-2014
Current Committee:
Senate Rules
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:
2011-2012: S1407B, S1407B
2009-2010: S2110A, S2110A
2007-2008: S208, S208

Sponsor Memo

BILL NUMBER:S2237B

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: The amendment to this bill makes changes to
conform the bill to the New York SAFE Act.

Section one amends section 265.09 of the Penal Law to provide that a
person is guilty of the crime of criminal use of a firearm in the
first degree when he or she displays what appears to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm; it eliminates
language Providing that a Person is so Guilty if he or she
alternatively displays what appears to be a firearm, or possesses a
deadly weapon. This section also makes conforming amendments to the
sentencing provisions of Penal Law section 265.09.

Section two repeals Penal Law section 265.08, criminal use of a
firearm in the second degree, which effectively upgrades all instances
of criminal use of a firearm to class 3 violent felonies,

Section three through five are technical and update certain
cross-references in law.

Section six establishes the effective date.

EXISTING LAW: The sentencing provisions contained in Penal Law section
265.09(2) currently apply only where the defendant displays an actual
loaded weapon in the commission of the offense.

JUSTIFICATION: The enhanced penalties contained in Penal Law section
265.09, relating to criminal use of a firearm in the first degree,
only apply where the assailant actually carries a loaded weapon
capable of being fired. Perpetrators who only display what appears to
be a firearm are guilty of criminal use of a firearm in the first
degree, but are not subject to this increased penalty. There is no
basis for this distinction. Those who use actual firearm, and those
who carry fake or unloaded firearms, carry them for the same primary
purpose: to intimidate their victims into submission. Victims of-these
crimes cannot be expected to distinguish between real and fake or
unloaded firearms when they Perceive themselves to be at gunpoint, and
nor can the police, who must act as if a weapon carried by an
assailant is real. The public safety is jeopardized regardless of
whether a firearm used to commit a felony is fake, real, or unloaded.
Accordingly, the law should treat these acts with equal severity, and
criminals should not be allowed to avoid the enhanced sentencing
provisions contained in Penal Law section 265.09 merely because the
gun he or she used was not, on hindsight, capable of being fired.

LEGISLATIVE HISTORY: S.14079 of 2012 - Passed Senate 03/21/12 S.2110
of 2010 - Referred to Codes


FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first of November
after it shall have become law, subject to provisions.

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

                                 2237--B
    Cal. No. 387

                       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 -- reported favorably from said committee and
  committed to the Committee on Rules -- reported  favorably  from  said
  committee  to  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, subdivision 2 as amended by chapter 1 of the laws
of 2013, 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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03184-03-3

S. 2237--B                          2

sentence  imposed  on  the  underlying  [class B 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,] WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOT-
GUN, MACHINE GUN OR OTHER FIREARM in furtherance 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 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 seriousness of the crime.
Notwithstanding any other provision of law to the contrary,  the  aggre-
gate of the five year consecutive term imposed pursuant to this subdivi-
sion 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 conditional release during such term.
This subdivision shall not apply where the defendant's criminal  liabil-
ity  for  displaying [a loaded weapon from which a shot, readily capable
of producing death or other serious  injury  may  be  discharged,]  WHAT
APPEARS  TO  BE A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER
FIREARM in furtherance of the  commission  of  crime  is  based  on  the
conduct of another pursuant to section 20.00 of 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  1  of  the laws of 2013, 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, assault on a
judge as defined in section 120.09, 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, crim-
inal 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, aggravated criminal possession of  a
weapon as defined in section 265.19, 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 chemical weapon or biolog-
ical 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 400 of the laws of 2011, 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,

S. 2237--B                          3

120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
125.40, 125.45, 130.20, 130.25, 130.52, 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, 220.65, 221.30, 221.50, 221.55, 230.00,
230.05, 230.06, 230.20, 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] FIREARM pursuant to sections 265.11 and 265.12; and
sex offenses pursuant to article 130 of the penal law. Provided,  howev-
er,  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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