senate Bill S5602A

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:
A3255A
Versions:
S5602
S5602A
Legislative Cycle:
2013-2014
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Amd ยงยง115.00, 115.01, 115.05, 115.08, 115.15, 115.20, 265.00, 265.11 & 265.13, Pen L

Sponsor Memo

BILL NUMBER:S5602A

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 Veda 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: (I) 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 ox 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--A

                       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  --  recommitted  to
  the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
  committee discharged, bill amended, ordered reprinted as  amended  and
  recommitted to said committee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06323-03-4

S. 5602--A                          2

  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
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

S. 5602--A                          3

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.
  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. Section 115.20 of the penal law, as added by  chapter  1  of  the
laws of 2013, is amended to read as follows:
S 115.20 Criminal facilitation; definitions and construction.
  [For  purposes of this article, such conduct shall include, but not be
limited to, making available, selling, exchanging, giving  or  disposing
of  a  community  gun,  which  in fact, aids a person to commit a crime.
"Community gun" shall mean a  firearm  that  is  actually  shared,  made
available, 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 such firearm. "Dispose of" shall have the same meaning  as  that
term  is  defined  in  section 265.00 of this chapter. "Share" and "make
available" shall, in the case of a  firearm,  be  construed  to  include
knowingly placing such firearm at a location accessible and known to one
or more other persons.]
  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 26 to read as follows:
  26.  "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.

S. 5602--A                          4

  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
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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