senate Bill S2237C

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:
A7000A
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

Votes

12
0
12
Aye
0
Nay
2
aye with reservations
0
absent
0
excused
0
abstained
show Codes committee vote details

Sponsor Memo

BILL NUMBER:S2237C

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 whet 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 Provides that this law shall be effective on the first of
November after it has become law.

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:

S2237B of 2013 - On Calendar
S.1407B of 2012 - Passed Senate 03/21/12
S.2110 of 2010 - Referred to Codes

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

First of November after it shall become law

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

                                 2237--C
    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 -- committee discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03184-05-3

S. 2237--C                          2

first degree as defined in subdivision one of this  section,  the  court
shall  impose  an  additional  consecutive sentence of five years to the
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[,] OR WHAT APPEARS TO BE A  PISTOL,  REVOLVER,  RIFLE,
SHOTGUN,  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 circum-
stances 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
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 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 liability for displaying a loaded weapon  from  which  a  shot,
readily  capable  of  producing  death  or  other  serious injury may be
discharged[,] OR 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:

S. 2237--C                          3

  (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,
125.40, 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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