senate Bill S3148

Amended

Enacts the "children's weapon accident prevention act"

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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

  • 30 / Jan / 2013
    • REFERRED TO CODES
  • 18 / Nov / 2013
    • AMEND AND RECOMMIT TO CODES
  • 18 / Nov / 2013
    • PRINT NUMBER 3148A
  • 08 / Jan / 2014
    • REFERRED TO CODES
  • 11 / Feb / 2014
    • AMEND AND RECOMMIT TO CODES
  • 11 / Feb / 2014
    • PRINT NUMBER 3148B

Summary

Enacts the "children's weapon accident prevention act"; creates crimes of failure to store a weapon safely in the first and second degrees, aggravated failure to store a weapon, and criminally negligent storage of a weapon in the first and second degrees; provides affirmative defenses; directs the commissioner of education to develop a weapons safety program.

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Bill Details

Versions:
S3148
S3148A
S3148B
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §265.00, add §§265.50, 265.55, 265.60, 265.65, 265.70 & 265.75, Pen L; amd §396-ee, Gen Bus L; amd §305, Ed L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S895A
2009-2010: S3098A

Sponsor Memo

BILL NUMBER:S3148

TITLE OF BILL: An act to amend the penal law, the general business
law and the education law, in relation to criminally negligent storage
of a weapon and weapons safety programs for children

PURPOSE: Establishes the "Children's Weapon Accident Prevention Act."
Creates crimes related to the unsafe storage of a weapon and
criminally negligent storage of a weapon to protect children, and
others, from injury and death due to unauthorized access, discharge
and use of weapons.

SUMMARY OF PROVISIONS:

Section 1 contains the short title of the bill.

Section 2 contains legislative findings.

Section 3 creates 5 new definitions within penal law 265.00.

Section 4 creates 5 new crimes within article 265 of the penal law,
and one provision related to the applicability of those crimes.
Specifically:

§ 265.45 defines failure to store a weapon safely in the second degree
as a violation;

§ 265.50 defines failure to store a weapon safely in the first degree
as a class B misdemeanor;

§ 265.55 defines aggravated failure to store a weapon safely in the
second degree, resulting in the removal or discharge of the weapon by
a child, as a class A misdemeanor;

§ 265.60 defines criminally negligent storage of a weapon in the
second degree, resulting in a child causing serious physical injury to
himself/herself or any other person, as a class E felony;

§ 265.65 defines criminally negligent storage of a weapon in the first
degree, resulting in a child causing the death of himself/herself or
any other person, as a class El felony. With respect to the crimes
defined in sections 265.60 and 265.65 of the penal law, it shall be an
affirmative defense that the defendant reasonably attempted to
retrieve or regain possession of the firearm, rifle or shotgun prior
to discharge. Exceptions are provided when persons under eighteen gain
access to a weapon by unlawful means; when a weapon is securely stored
in a locked box and where ammunition is separately and securely stored
in a locked container; when a firearm, rifle or shotgun is securely
locked with a gun locking device; when persons under eighteen
possessed a loaded rifle or shotgun pursuant to a valid hunting
license; when the firearm is in the possession of a police officer
engaged in official business; or for the lawful purpose of
self-defense.


§ 265.70 gives the district attorney discretion whether or not to
prosecute a parent or guardian when death or injury of a child results
from a violation of penal law 265.60 or 265.65.

Section 5 amends subdivision 2 of section 396-ee of the general
business law to require gun dealers to post a conspicuous notice that
it is a crime in New York to leave guns accessible to children.

Section 6 adds subdivision 43 to section 305 of the education law to
require the commissioner to develop a weapon safety program designed
to teach children how to prevent gun-related injuries.

JUSTIFICATION: In 40 states, firearms, rifles and semiautomatic
weapons are sold to Parents without requirements to store the weapons
safely. "In 1988, some 1,501 people were killed in the united States
by accidental discharge of firearms and many more were injured. Among
those killed were 277 children under the age of 15. In fact, firearms
are the fourth leading cause of accidental deaths among children 5 to
14 years of age and the third leading cause of accidental deaths among
15 to 24 year olds." (United States General Accounting Office;
"Accidental Shootings", 1991.)

Between 1990 and 1994 in New York state alone, there were a total of
6,627 hospitalizations of children age 19 and under due to firearm
injury, an average of 1,325 per year. One thousand four hundred
nineteen of these were accidental, an average of 284 per year. At the
same time, there were 1,734 deaths of children age 19 and under, an
average of 347 per year. Tragically, 48 of these deaths were
accidental, averaging 10 per year. And in 1997, the last year for
which reliable figures are available for New York state, 5 children
under 18 were killed in firearm accidents and 72 were injured
seriously enough to be hospitalized.

It is estimated that about one of every three deaths from accidental
firearm discharge could have been prevented if proper weapon safety
procedures had been followed. (United States General Accounting
Office). In 2000, legislation was enacted in New York to require the
purchase of a safety locking device with the purchase or transfer of a
gun. However, there was no requirement to use the device or safely
store a gun. It is the intent of this legislation to encourage safe
firearm storage and to prevent negligent conduct before accidents
occur.

The states of California, Connecticut, Florida, Hawaii, Iowa, Maine,
Maryland, New Jersey, Massachusetts, Virginia and wisconsin have
already passed similar legislation. Accidental gun deaths of children
were reduced 23% in states with Child Access Prevention/Safe Gun
storage(CAP) laws, according to a study published in the Journal of
the American Medical Association on October 1, 1997.

LEGISLATIVE HISTORY: 2000: A.1407-B - Passed Assembly 2001-2002:
A.5363-B - Passed Assembly 2003-2004: A.4615-C - Passed Assembly
2005-2006: A.673 - Passed Assembly 2007-2008: A.76A - Passed Assembly
2009-2010: S.3098-A - Schneiderman) A.5844-B (Weisenberg) 2011-2012:
S.895

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 a law provided,
however, that sections three and four of this act shall take effect
May 1, 2015, provided, further, that section five of this act shall
take effect March 1, 2015 except that any rule or regulation necessary
for the timely implementation of section five of this act shall be
promulgated on or before such date.

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

                                  3148

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 30, 2013
                               ___________

Introduced  by Sens. KRUEGER, AVELLA, GIANARIS -- read twice and ordered
  printed, and when printed to be committed to the Committee on Codes

AN ACT to amend the penal law, the general business law and  the  educa-
  tion  law, in relation to criminally negligent storage of a weapon and
  weapons safety programs for children

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

  Section  1.  Short title; construction. 1. This act shall be known and
may be cited as the "children's weapon accident prevention act."
  2. The provisions of this act shall not be  construed  to  preempt  or
supersede any local law the provisions of which are no less stringent or
restrictive than the provisions of this act.
  S  2.  Legislative  findings  and intent. The legislature finds that a
tragically large number of children have  been  accidentally  killed  or
seriously  injured  by  negligently stored weapons; that placing weapons
within reach or easy access of  children  is  irresponsible,  encourages
such accidents, and should be prohibited, and that legislative action is
necessary to protect the safety of our children.
  S  3.  Section  265.00  of the penal law is amended by adding five new
subdivisions 25, 26, 27, 28 and 29 to read as follows:
  25. "WEAPON" MEANS A "RIFLE", "SHOTGUN",  OR  "FIREARM"  AS  OTHERWISE
DEFINED IN SUBDIVISION THREE OF THIS SECTION.
  26.  "LOCKED  BOX" MEANS A SAFE, CASE OR CONTAINER WHICH, WHEN LOCKED,
IS INCAPABLE OF BEING OPENED WITHOUT  THE  KEY,  COMBINATION,  OR  OTHER
UNLOCKING  MECHANISM  AND  IS  RESISTANT TO TAMPERING BY AN UNAUTHORIZED
PERSON ATTEMPTING TO OBTAIN ACCESS TO AND POSSESSION OF  THE  WEAPON  OR
AMMUNITION CONTAINED THEREIN. THE DIVISION OF STATE POLICE SHALL DEVELOP
AND  PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC DEVICES
OR THE MINIMUM STANDARDS  AND  CRITERIA  THEREFOR  WHICH  CONSTITUTE  AN
EFFECTIVE LOCKED BOX.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01339-02-3

S. 3148                             2

  27.  "GUN  LOCKING  DEVICE"  MEANS  AN INTEGRATED DESIGN FEATURE OR AN
ATTACHABLE ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE  IN
PREVENTING  THE  DISCHARGE  OF  A  WEAPON  BY A PERSON WHO DOES NOT HAVE
ACCESS TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE  THE
DEVICE.
  28. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE
WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF
AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE.
  29.  "LOADED  SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION OR ANY
SHOTGUN WHICH IS POSSESSED BY ONE WHO, AT THE  SAME  TIME,  POSSESSES  A
QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN.
  S  4.  The  penal  law  is  amended by adding six new sections 265.50,
265.55, 265.60, 265.65, 265.70 and 265.75 to read as follows:
S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE.
  A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN  THE  SECOND
DEGREE  WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS OR
HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED
SUCH WEAPON IN AN APPROPRIATE LOCKED BOX OR  RENDERED  IT  INCAPABLE  OF
BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP-
ON.
  FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION.
S 265.55 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE.
  A  PERSON  IS  GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE FIRST
DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE  A  WEAPON
SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.50 OF THIS ARTICLE
AND  HAS  BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO STORE A
WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.50 OF  THIS
ARTICLE WITHIN THE PRECEDING FIVE YEARS.
  FAILURE  TO  STORE  A  WEAPON  SAFELY IN THE FIRST DEGREE IS A CLASS B
MISDEMEANOR.
S 265.60 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY.
  A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN
HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE
SECOND DEGREE AS DEFINED IN SECTION 265.50  OF  THIS  ARTICLE  AND  SUCH
WEAPON  IS  REMOVED  FROM  THE  PREMISES OR DISCHARGED BY ANOTHER PERSON
UNDER THE AGE OF EIGHTEEN.
  AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR.
S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE.
  1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A  WEAPON  IN
THE  SECOND  DEGREE  WHEN  WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY  LOCATION
WHERE  SUCH  WEAPON  IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF  EIGHTEEN,
WHICH  CAUSES  SERIOUS  PHYSICAL  INJURY TO SUCH PERSON UNDER THE AGE OF
EIGHTEEN OR ANY OTHER PERSON.
  2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL  BE  AN  AFFIRMATIVE
DEFENSE  THAT  THE  DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
RETRIEVE OR OTHERWISE REGAIN POSSESSION OF  SUCH  WEAPON  PRIOR  TO  ITS
DISCHARGE.
  3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
  (A)  SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
  (B) SUCH WEAPON IS STORED IN A  SECURELY  LOCKED  BOX  WHICH  PREVENTS
ACCESS  TO  THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH  PREVENTS
ACCESS TO SUCH AMMUNITION;

S. 3148                             3

  (C)  SUCH  WEAPON  IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS
THE WEAPON FROM DISCHARGING;
  (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
  (E)  SUCH  WEAPON  IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
  (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
  CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE  SECOND  DEGREE  IS  A
CLASS E FELONY.
S 265.70 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE.
  1.  A  PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
THE FIRST DEGREE WHEN WITH CRIMINAL NEGLIGENCE,  HE  OR  SHE  STORES  OR
LEAVES  A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE  AGE  OF  EIGHTEEN
AND  SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
WHICH CAUSES THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN  OR  ANY
OTHER PERSON.
  2.  IN  ANY  PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL  REASONABLE  EFFORTS  TO
RETRIEVE  OR  OTHERWISE  REGAIN  POSSESSION  OF SUCH WEAPON PRIOR TO ITS
DISCHARGE.
  3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
  (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH  WEAPON
AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
  (B)  SUCH  WEAPON  IS  STORED  IN A SECURELY LOCKED BOX WHICH PREVENTS
ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED  TO  DISCHARGE
SUCH  WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
ACCESS TO THE WEAPON;
  (C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE
WEAPON FROM DISCHARGING;
  (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
  (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF  A  POLICE  OFFICER
WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
  (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
  CRIMINALLY  NEGLIGENT  STORAGE  OF  A  WEAPON IN THE FIRST DEGREE IS A
CLASS D FELONY.
S 265.75 CRIMINALLY NEGLIGENT STORAGE OF  A  WEAPON  IN  THE  FIRST  AND
             SECOND DEGREE; APPLICATION.
  IF  A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.65 OR 265.70 OF
THIS ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR  WHO
DIES  AS  THE  RESULT  OF  SUCH  VIOLATION,  THE DISTRICT ATTORNEY SHALL
CONSIDER, AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON  THE
PERSON  WHO  IS  SUSPECTED OF VIOLATING SECTION 265.65 OR 265.70 OF THIS
ARTICLE WHEN DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON  FOR  SUCH
CRIME.
  S  5.  The  section heading and subdivision 2 of section 396-ee of the
general business law, as added by chapter 189 of the laws of  2000,  are
amended to read as follows:
  Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
  (2)  Every  person, firm or corporation engaged in the retail business
of selling rifles, shotguns or firearms, as such terms  are  defined  in
section  265.00 of the penal law, shall, in the place where such rifles,
shotguns or firearms are displayed or transferred to the purchaser, post

S. 3148                             4

a notice conspicuously stating in bold print that:   "The use of  a  GUN
locking  device  or  [safety  lock]  A  LOCKED BOX is only one aspect of
responsible firearm storage.  For increased safety  firearms  should  be
stored  unloaded  and  locked  in  a location that is both separate from
their ammunition and inaccessible to children and any other unauthorized
person. LEAVING RIFLES, SHOTGUNS, AND FIREARMS ACCESSIBLE  TO  A  PERSON
UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE."
  S  6.  Section  305  of  the  education law is amended by adding a new
subdivision 43 to read as follows:
  43. THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF  CRIMI-
NAL  JUSTICE  SERVICES  DEVELOP  A  WEAPONS  SAFETY  PROGRAM DESIGNED TO
PROTECT CHILDREN FROM THE RISK OF GUN-RELATED  DEATH  AND  INJURY.  SUCH
PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE-
TY  PROCEDURE  WHEN  THEY  ARE EXPOSED TO A GUN, SHALL SPECIFICALLY WARN
CHILDREN THAT CONTACT WITH GUNS CAN RESULT IN SERIOUS  INJURY  OR  DEATH
AND  SHALL  HAVE  BEEN  PROVEN TO BE EFFECTIVE TO PREVENT INJURY THROUGH
FORMAL EVALUATION BY  OBJECTIVE  PUBLIC  HEALTH  AND  EDUCATION  PROFES-
SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE
DISCRETION  OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF TRUSTEES,
WHICHEVER IS APPLICABLE. THE COMMISSIONER  SHALL  SUBMIT  AN  EVALUATION
REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE
TEMPORARY  PRESIDENT  OF  THE  SENATE,  THE  CHAIR OF THE ASSEMBLY CODES
COMMITTEE AND THE CHAIR OF THE SENATE  CODES  COMMITTEE  NO  LATER  THAN
JANUARY FIRST, TWO THOUSAND SIXTEEN.
  S  7.  If  any  word, phrase, clause, sentence, paragraph, section, or
part of this act shall be adjudged by any court of  competent  jurisdic-
tion  to  be invalid, such judgment shall not affect, impair, or invali-
date the remainder thereof, but shall be confined in  its  operation  to
the words, phrase, clause, sentence, paragraph, section, or part thereof
directly  involved  in the controversy in which such judgment shall have
been rendered.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become  a  law,  provided,  however,
that  sections three and four of this act shall take effect May 1, 2015;
provided, further, that section five of this act shall take effect March
1, 2015 except that any rule or  regulation  necessary  for  the  timely
implementation  of  section  five  of  this act may be promulgated on or
before such date.

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