senate Bill S5602

Amended

Relates to sharing, making available, selling, exchanging, giving or disposing of a community gun as an element of certain criminal acts

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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

  • 24 / May / 2013
    • REFERRED TO CODES
  • 08 / Jan / 2014
    • REFERRED TO CODES
  • 10 / Feb / 2014
    • AMEND AND RECOMMIT TO CODES
  • 10 / Feb / 2014
    • PRINT NUMBER 5602A

Summary

Includes sharing, making available, selling, exchanging, giving or disposing of a community gun as an element of certain criminal acts including criminal facilitation and criminal sale of a firearm.

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Bill Details

See Assembly Version of this Bill:
A3255
Versions:
S5602
S5602A
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd §§115.00, 115.01, 115.05, 115.08, 115.15, 115.20, 265.00, 265.11 & 265.13, add §115.20, Pen L

Sponsor Memo

BILL NUMBER:S5602

TITLE OF BILL:
An act
to amend the penal law, in relation to community guns and the criminal
sale of a firearm in the first and
third degrees

PURPOSE OR GENERAL IDEA OF BILL: The bill seeks to
address the major
public safety issue whereby an illegal handgun is made available to
many, usually gang associates, to be used to commit crimes and
intimidate others. The bill would provide prosecutors with greater
tools to attach criminal liability to all those responsible for the
use of the weapon.

SUMMARY OF SPECIFIC PROVISIONS:

Sections 1 through 6 expand Article 115 - Criminal Facilitation - to
provide that sharing or making available a "community gun" is
punishable as criminal facilitation where the gun aids another person
in the commission of a felony, or, if the person aided is under the
age of sixteen, the commission of any crime. Community gun
facilitation is exempted from the corroboration requirement.

Section 7 amends section 265.00 of the Penal Law to define "community
gun" as a firearm shared by two or more persons, at least one of whom
is not. authorized to possess a firearm.

Section 8 amends section 265.11 of the Penal Law to provide that the
act of sharing or making available a community gun would constitute
criminal sale of a weapon in the third degree, which is a class D
felony.

Section 9 amends section 265.13 of the penal law-to provide that the
unlawful sale or transfer of a firearm that causes the death of
another person within three years from such sale or transfer would
constitute criminal sale of a weapon in the first degree. This
offense is a class B violent felony. The provision would only apply
when the firearm was discharged intentionally (other than for
suicide), recklessly or with criminal negligence.

JUSTIFICATION: Criminals who commit acts of violence
continue to get
their hands on illegal guns. However, the people who make these
illegal guns available or share community guns are not held
accountable for subsequent violence and fatalities that the use of
guns incurs. Law enforcement experts have reported that the use of
community guns is on the rise. In a recent case highlighted by the
New York Times, a street
encounter among strangers turned deadly when a man accessed a
community gun hidden in a bag under a stairwell in the lobby of an
apartment building and fatally shot a woman with whom he had been
arguing. In 2009, 16-year-old gang member. Carvett Gentles allegedly
shot and seriously wounded Vada Vasquez, a 15-year-old bystander.
According to the news reports, Gentles was handed the gun by older
gang members. In 2008, a teenager shot a 10-year-old in Albany using


a community gun that a small syndicate of criminals had passed around
for repeated use in crimes. In September 2011, Tayshana Murphy, a
high school senior and star of her school's basketball team, was
killed in a shooting. According to news sources, the police suspect
that her killers, at least one of whom has a violent criminal
history, obtained their gun from a convicted felon.

This bill will hold people responsible for sharing community guns or.
illegally transferring guns that are later used in violent crimes by
defining "community guns" and expanding the existing crimes of
criminal facilitation and criminal sale of a firearm in three key
ways: (1) the criminal facilitation crimes would be expanded to
include sharing or making available a community gun (or assisting in
such conduct) that aids in a crime, (2) criminal sale of a firearm in
the third degree would be expanded to include sharing or making
available a community gun, and (3) criminal sale of a firearm in the
first degree would expand to include illegally transferring a gun
later used to cause the death of another person within three years of
the illegal transfer.

Creating these expanded crimes in the community gun context will
punish persons who assist in sharing a gun that is used in a
consequent. felony but who might otherwise escape criminal
responsibility because of the difficulty in proving that they
possessed or sold the gun or knew the specifics of each crime planned
by the other users of the weapon. It would also make clear that a
person who shares or makes available a community gun - by leaving it
in an accessible location, for. example -is guilty of criminal sale
of a firearm in the third degree regardless of whether he transfers
the gun to another. person. Under the expanded definition of first
degree criminal sale of a firearm, a trafficker who sells or lends
illegal guns on the streets of New York could be punished in the same
manner as those who commit homicides. For example, if a gang member
gives a second gang member an illegal gun and the second gang member
uses the weapon to kill someone within three years, the person who
illegally transferred the gun would be subject to five to twenty-five
years of prison time; under current law he or she could only be
charged with a class D felony for illegal sale and be sentenced to as
little as one year in jail.

All of the provisions outlined in this bill are tools for law
enforcement and prosecutors to address the true issue of gun violence
-controlling the guns in the hands of criminals. The heightened
punishments send a clear deterrent message to those who traffic in
illegal guns, and the expanded scope of liability will discourage the
deadly criminal practice of "community guns".

PRIOR LEGISLATIVE HISTORY: New Bill

FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
To be determined.

EFFECTIVE DATE: This act shall take effect on the one
hundred
eightieth day after it shall have become a law.


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

                                  5602

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              May 24, 2013
                               ___________

Introduced  by  Sen.  ROBACH -- 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  community  guns  and  the
  criminal sale of a firearm in the first and third degrees

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

  Section 1. Section 115.00 of the penal law, as amended by chapter  422
of the laws of 1978, is amended to read as follows:
S 115.00 Criminal facilitation in the fourth degree.
  A  person  is  guilty  of  criminal  facilitation in the fourth degree
when[,]:
  1. believing it probable that he OR SHE is rendering aid:
  [1.] A. to a person who intends to commit a crime, he OR  SHE  engages
in  conduct which provides such person with means or opportunity for the
commission thereof and which in fact aids such person to commit a  felo-
ny; or
  [2.]  B.  to a person under sixteen years of age who intends to engage
in conduct which would constitute a crime, he OR SHE, being  over  eigh-
teen  years  of  age, engages in conduct which provides such person with
means or opportunity for the commission thereof and which in  fact  aids
such person to commit a crime; OR
  2.  HE  OR  SHE BEING NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO
POSSESS A FIREARM SHARES, MAKES AVAILABLE, SELLS,  EXCHANGES,  GIVES  OR
DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY,
AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON TO COMMIT A FELONY, INCLUD-
ING,  BUT  NOT  LIMITED  TO,  A  FELONY SET FORTH IN ARTICLE TWO HUNDRED
SIXTY-FIVE OF THIS PART; OR
  3. HE OR SHE, BEING OVER EIGHTEEN YEARS  OF  AGE  AND  NOT  AUTHORIZED
PURSUANT  TO  NEW  YORK  STATE  LAW  TO POSSESS A FIREARM, SHARES, MAKES
AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A  COMMUNITY  GUN,  OR
ASSISTS  ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06323-02-3

S. 5602                             2

AIDS A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A  CRIME,  INCLUDING,
BUT  NOT LIMITED TO, A CRIME SET FORTH IN ARTICLE TWO HUNDRED SIXTY-FIVE
OF THIS PART.
  Criminal facilitation in the fourth degree is a class A misdemeanor.
  S  2.  Section 115.01 of the penal law, as added by chapter 422 of the
laws of 1978, is amended to read as follows:
S 115.01 Criminal facilitation in the third degree.
  A person IS guilty of criminal facilitation in the third degree, when:
  1. believing it probable that he OR SHE is rendering aid to  a  person
under  sixteen  years of age who intends to engage in conduct that would
constitute a felony, he OR  SHE,  being  over  eighteen  years  of  age,
engages  in conduct which provides such person with means or opportunity
for the commission thereof and which in fact aids such person to  commit
a felony; OR
  2.  HE  OR  SHE,  BEING  OVER EIGHTEEN YEARS OF AGE AND NOT AUTHORIZED
PURSUANT TO NEW YORK STATE LAW  TO  POSSESS  A  FIREARM,  SHARES,  MAKES
AVAILABLE,  SELLS,  EXCHANGES,  GIVES OR DISPOSES OF A COMMUNITY GUN, OR
ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN  FACT
AIDS  A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A FELONY, INCLUDING,
BUT NOT LIMITED TO, A FELONY SET FORTH IN ARTICLE TWO HUNDRED SIXTY-FIVE
OF THIS PART.
  Criminal facilitation in the third degree is a class E felony.
  S 3. Section 115.05 of the penal law, as amended by chapter 422 of the
laws of 1978, is amended to read as follows:
S 115.05 Criminal facilitation in the second degree.
  A person is guilty of  criminal  facilitation  in  the  second  degree
when[,]:
  1.  believing  it probable that he OR SHE is rendering aid to a person
who intends to commit a class A felony, he OR  SHE  engages  in  conduct
which  provides such person with means or opportunity for the commission
thereof and which in fact aids  such  person  to  commit  such  class  A
felony; OR
  2.  HE  OR  SHE BEING NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO
POSSESS A FIREARM SHARES, MAKES AVAILABLE, SELLS,  EXCHANGES,  GIVES  OR
DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY,
AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON TO COMMIT A CLASS A FELONY.
  Criminal facilitation in the second degree is a class C felony.
  S  4.  Section 115.08 of the penal law, as added by chapter 422 of the
laws of 1978, is amended to read as follows:
S 115.08 Criminal facilitation in the first degree.
  A person is guilty  of  criminal  facilitation  in  the  first  degree
when[,]:
  1.  believing  it probable that he OR SHE is rendering aid to a person
under sixteen years of age who intends to engage in conduct  that  would
constitute  a  class  A  felony, he OR SHE, being over eighteen years of
age, engages in conduct which provides such person with means or  oppor-
tunity  for the commission thereof and which in fact aids such person to
commit such a class A felony; OR
  2. HE OR SHE, BEING OVER EIGHTEEN YEARS  OF  AGE  AND  NOT  AUTHORIZED
PURSUANT  TO  NEW  YORK  STATE  LAW  TO POSSESS A FIREARM, SHARES, MAKES
AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A  COMMUNITY  GUN,  OR
ASSISTS  ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT
AIDS A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A CLASS A FELONY.
  Criminal facilitation in the first degree is a class B felony.
  S 5. Section 115.15 of the penal law is amended to read as follows:
S 115.15 Criminal facilitation; corroboration.

S. 5602                             3

  A person shall not be convicted  of  criminal  facilitation  upon  the
testimony  of a person who has committed the felony charged to have been
facilitated unless such testimony be corroborated by such other evidence
as tends to connect the defendant with such facilitation; PROVIDED  THAT
THIS  SECTION  SHALL  NOT APPLY TO A CONVICTION OF CRIMINAL FACILITATION
FOR SHARING, MAKING AVAILABLE, SELLING, EXCHANGING, GIVING OR  DISPOSING
OF A COMMUNITY GUN, OR ASSISTING ANY PERSON IN SUCH ACTIVITY.
  S  6.  The penal law is amended by adding a new section 115.20 to read
as follows:
S 115.20 CRIMINAL FACILITATION; DEFINITIONS AND CONSTRUCTION.
  AS USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE  FOLLOWING
MEANINGS:
  1.  "COMMUNITY  GUN"  SHALL MEAN A FIREARM THAT IS SHARED, MADE AVAIL-
ABLE, SOLD, EXCHANGED, GIVEN OR DISPOSED OF AMONG OR BETWEEN TWO OR MORE
PERSONS, AT LEAST ONE OF WHOM IS  NOT  AUTHORIZED  PURSUANT  TO  LAW  TO
POSSESS A FIREARM.
  2.  "DISPOSE  OF"  SHALL  HAVE THE SAME MEANING AS PROVIDED IN SECTION
265.00 OF THIS PART.
  3. "SHARE" AND "MAKE AVAILABLE" SHALL, IN THE CASE OF  A  FIREARM,  BE
CONSTRUED  TO INCLUDE, BUT SHALL NOT BE LIMITED TO, PLACING SUCH FIREARM
AT A LOCATION ACCESSIBLE AND KNOWN TO ONE OR MORE OTHER PERSONS.
  S 7. Section 265.00 of the penal law is amended by adding a new subdi-
vision 25 to read as follows:
  25. "COMMUNITY GUN" SHALL HAVE THE DEFINITION  SET  FORTH  IN  SECTION
115.20 OF THIS PART, AND THE TERMS "SHARE" AND "MAKE AVAILABLE" SHALL BE
CONSTRUED AS SET FORTH IN SUCH SECTION.
  S 8. 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 degree.
  A  person  is guilty of criminal sale of a firearm in the third 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; OR
  (3) SHARE OR MAKES AVAILABLE A COMMUNITY GUN.
  Criminal sale of a firearm in the third degree is a class D felony.
  S 9. Section 265.13 of the penal law, as amended by chapter 764 of the
laws of 2005, is amended to read as follows:
S 265.13 Criminal sale of a firearm in the first degree.
  A  person  is guilty of criminal sale of a firearm in the first degree
when such person:
  (1) unlawfully sells, exchanges, gives or disposes of to  another  ten
or more firearms; [or]
  (2)  unlawfully  sells,  exchanges,  gives  or  disposes of to another
person or persons a total of ten or more firearms in  a  period  of  not
more than one year; OR
  (3)  BEING  NOT  AUTHORIZED BY NEW YORK STATE LAW TO POSSESS A FIREARM
UNLAWFULLY SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES, OR DISPOSES
OF A FIREARM TO ANOTHER PERSON, AND, WITHIN THREE YEARS THEREAFTER,  THE
FIREARM  IS  DISCHARGED  AND  CAUSES  THE DEATH OF ANOTHER PERSON.   THE
PROVISIONS OF THIS SUBDIVISION SHALL ONLY APPLY WHEN  SUCH  FIREARM  WAS
DISCHARGED   INTENTIONALLY,  RECKLESSLY  OR  WITH  CRIMINAL  NEGLIGENCE,
PROVIDED THAT THE PROVISIONS OF THIS SUBDIVISION SHALL  NOT  APPLY  WHEN
SUCH  FIREARM  WAS  DISCHARGED  INTENTIONALLY FOR PURPOSES OF COMMITTING

S. 5602                             4

SUICIDE. FOR PURPOSES OF THIS  SUBDIVISION,  THE  TERM  "FIREARM"  SHALL
INCLUDE BUT NOT BE LIMITED TO A COMMUNITY GUN.
  Criminal sale of a firearm in the first degree is a class B felony.
  S  10.  This  act  shall  take effect on the one hundred eightieth day
after it shall have become a law.

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