Assembly Bill A3346

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

                                  3346

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 27, 2009
                               ___________

Introduced  by  M.  of  A. KOON, CARROZZA, ENGLEBRIGHT, ALFANO -- Multi-
  Sponsored by -- M. of A.  AUBRY, BARRA, CLARK, DIAZ, DINOWITZ,  GALEF,
  GLICK,  GOTTFRIED,  GREENE, HOOPER, HOYT, JACOBS, JOHN, LAVINE, MAYER-
  SOHN, PERRY, PHEFFER, SCARBOROUGH, TOWNS,  WRIGHT  --  read  once  and
  referred to the Committee on Codes

AN  ACT  to  amend  the  penal  law  and  the criminal procedure law, in
  relation to banning dangerous firearms

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

  Section  1.  Legislative  findings  and  declarations. The legislature
hereby finds and declares that certain poorly made, easily  concealable,
and generally unsafe weapons commonly known as "Saturday night specials"
or  "junk  guns" are disproportionately used in the commission of crimes
and serve no legitimate sporting or self-protection purpose. The  legis-
lature  additionally  finds and declares that these weapons pose such an
imminent threat and danger to the safety and security of the  people  of
this  state  that  it is necessary to ban the possession and use of such
weapons.  The legislature further finds and declares that such  weapons,
if  produced  outside of the United States, would fail the public safety
standards established by the United States bureau of  alcohol,  tobacco,
and  firearms  for  imported  firearms  under  the provisions of the Gun
Control Act of 1968, and that, at present, large numbers of such weapons
are being manufactured and sold  domestically  without  having  to  meet
these federal import standards.
  S 2. Section 265.00 of the penal law is amended by adding a new subdi-
vision 24 to read as follows:
  24.  "DANGEROUS  FIREARM"  MEANS ANY OF THE FIREARMS, IN SUCH CALIBER,
KNOWN AS:
  (I) ACCU-TEK MODEL 32SS
  (II) ACCU-TEK MODEL 380SS
  (III) ACCU-TEK MODEL AT-25

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01622-01-9
              

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  (IV) AMT BACKUP
  (V) AMT BACKUP II
  (VI) BERETTA MODEL 21 BOBCAT, .221R
  (VII) BERETTA MODEL 21 BOBCAT, .25ACP
  (VIII) BERETTA MODEL 950 JETFIRE
  (IX) BRYCO MODEL 38, .380ACP
  (X) BRYCO MODEL J-22
  (XI) BRYCO MODEL J-25
  (XII) COLT MUSTANG
  (XIII) COLT MUSTANG PLUS II
  (XIV) DAVIS BIG BORE DERRINGER, .32 H&R MAG
  (XV) DAVIS BIG BORE DERRINGER, .38SPL
  (XVI) DAVIS D SERIES DERRINGER, .221R
  (XVII) DAVIS D SERIES DERRINGER, .22WMR
  (XVIII) DAVIS D SERIES DERRINGER, .25ACP
  (XIX) DAVIS D SERIES DERRINGER, .32ACP
  (XX) DAVIS P-32
  (XXI) DAVIS P-38
  (XXII) INTRATEC PROTEC 22
  (XXIII) INTRATEC PROTEC 25
  (XXIV) KBI PSP 25
  (XXV) LORCIN L-22
  (XXVI) LORCIN L-25
  (XXVII) PHOENIX HP22
  (XXVIII) PHOENIX HP25
  (XXIX) PHOENIX RAVEN
  (XXX) SUNDANCE A-25
  (XXXI) SUNDANCE BOA
  (XXXII) SUNDANCE POINT BLANK DERRINGER
  (XXXIII) TAURUS PT-22
  (XXXIV) TAURUS PT-25
  (XXXV) BRYCO 48, .221R
  (XXXVI) BRYCO 48, .32ACP
  (XXXVII) BRYCO 48, .380ACP
  (XXXVIII) BRYCO 59, .380ACP
  (XXXIX) BRYCO 59, .40 S&W
  (XL) BRYCO 59, 9MM
  (XLI) COLT MUSTANG POCKETL
  (XLII) LORCIN L-32, .32ACP
  (XLIII) LORCIN L-380, .380ACP
  (XLIV) LORCIN L-9MM, 9MM
  S  3. The superintendent of the division of state police, in consulta-
tion with the secretary of the treasury and the attorney general of  the
United  States,  is directed to conduct ongoing tests and evaluations of
pistols and revolvers manufactured in this country to determine  whether
such  weapons  satisfy  the  public  safety  standards relating to size,
design and performance established by the United States bureau of  alco-
hol,  tobacco,  and  firearms  for the importation of firearms under the
provisions of the Gun Control Act of 1968 (18  U.S.C.    Sect.  921,  et
seq.).  The  superintendent  shall  compile a list of weapons that, when
tested and evaluated using these criteria, fail to satisfy these  public
safety  standards.  The  superintendent  shall  submit  such list to the
legislature not later than one year after the effective date of this act
and shall submit an updated list of additional weapons, if any, annually
thereafter. Such list shall be made public and  available  upon  request
provided, however, that the list of firearms compiled by the superinten-

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dent shall not have the force and effect of law unless such list, or any
part  of such list, is thereafter enacted into law as a provision of the
penal law.
  S 4. Section 265.20 of the penal law is amended by adding a new subdi-
vision e to read as follows:
  E.  THE  TERMS  "PISTOL"  AND  "REVOLVER" AS USED IN PARAGRAPHS THREE,
SEVEN-A, SEVEN-B, SEVEN-C, SEVEN-D, NINE, NINE-A, TWELVE, THIRTEEN,  AND
THIRTEEN-A  OF SUBDIVISION A OF THIS SECTION SHALL NOT INCLUDE A DANGER-
OUS FIREARM AS DEFINED IN SUBDIVISION TWENTY-FOUR OF SECTION  265.00  OF
THIS ARTICLE.
  S 5. Subdivisions 1 and 3 of section 265.01 of the penal law, subdivi-
sion  1  as amended by chapter 257 of the laws of 2008 and subdivision 3
as amended by chapter 199 of the laws of 2006, are amended  to  read  as
follows:
  (1)  He  or  she possesses any firearm OTHER THAN A DANGEROUS FIREARM,
electronic dart gun, electronic stun  gun,  gravity  knife,  switchblade
knife,  pilum  ballistic  knife, metal knuckle knife, cane sword, billy,
blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand
bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung
Fu star"; or
  (3) He or she knowingly has in his or her possession a rifle,  shotgun
or  firearm  OTHER  THAN  A  DANGEROUS  FIREARM in or upon a building or
grounds, used for  educational  purposes,  of  any  school,  college  or
university, except the forestry lands, wherever located, owned and main-
tained  by  the  State  University  of New York college of environmental
science and forestry, or upon a school bus as  defined  in  section  one
hundred  forty-two  of  the vehicle and traffic law, without the written
authorization of such educational institution; or
  S 6. Subdivision 8 of section 265.02 of the penal law, as  amended  by
chapter  764  of the laws of 2005, is amended and a new subdivision 9 is
added to read as follows:
  (8)  Such  person  possesses  a  large  capacity  ammunition   feeding
device[.]; OR
  (9) SUCH PERSON POSSESSES ANY DANGEROUS FIREARM.
  S  7.  Subdivision  1  of section 265.08 of the penal law, as added by
chapter 233 of the laws of 1980, is amended to read as follows:
  (1) possesses a deadly weapon, INCLUDING A DANGEROUS FIREARM,  if  the
weapon  is a loaded weapon from which a shot, readily capable of produc-
ing death or other serious injury may be discharged; or
  S 8. Paragraph (a) of subdivision 1 of section  265.09  of  the  penal
law,  as  amended by chapter 650 of the laws of 1996, is amended to read
as follows:
  (a) possesses a deadly weapon, INCLUDING A DANGEROUS FIREARM,  if  the
weapon  is a loaded weapon from which a shot, readily capable of produc-
ing death or other serious injury may be discharged; or
  S 9. Subdivisions 1 and 2 of section  265.10  of  the  penal  law,  as
amended  by  chapter  257  of  the  laws of 2008, are amended to read as
follows:
  1. Any person who  manufactures  or  causes  to  be  manufactured  any
machine-gun,  assault  weapon, large capacity ammunition feeding device,
DANGEROUS FIREARM, or disguised gun is guilty of a class D  felony.  Any
person  who  manufactures  or  causes to be manufactured any switchblade
knife, gravity knife, pilum ballistic knife, metal knuckle knife, billy,
blackjack, bludgeon, plastic knuckles, metal  knuckles,  Kung  Fu  star,
chuka  stick,  sandbag,  sandclub  or  slungshot  is guilty of a class A
misdemeanor.

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  2. Any person who transports or ships any machine-gun, firearm silenc-
er, assault weapon or large capacity ammunition feeding device,  DANGER-
OUS FIREARM, or disguised gun, or who transports or ships as merchandise
five  or  more  firearms,  is guilty of a class D felony. Any person who
transports  or  ships  as merchandise any firearm, other than an assault
weapon, switchblade knife, gravity knife, pilum ballistic knife,  billy,
blackjack,  bludgeon,  plastic  knuckles,  metal knuckles, Kung Fu star,
chuka stick, sandbag or slungshot is guilty of a class A misdemeanor.
  S 10. Paragraph 8 of subdivision a of section 265.20 of the penal law,
as amended by chapter 189 of the laws of 2000, is  amended  to  read  as
follows:
  8.  The  manufacturer of machine-guns, assault weapons, large capacity
ammunition feeding devices, DANGEROUS FIREARMS,  disguised  guns,  pilum
ballistic  knives,  switchblade or gravity knives, billies or blackjacks
as merchandise and the disposal and shipment thereof direct to  a  regu-
larly  constituted  or  appointed  state or municipal police department,
sheriff, policeman or other peace officer, or to a state  prison,  peni-
tentiary,  workhouse, county jail or other institution for the detention
of persons convicted or accused of crime or held as witnesses in  crimi-
nal  cases,  or  to  the military service of this state or of the United
States.
  S 11. Paragraphs (b), (c) and (d) of subdivision 1 and  paragraph  (b)
and  the  opening paragraph of paragraph (c) of subdivision 2 of section
70.02 of the penal law, paragraph (b) of subdivision 1 and paragraph (b)
of subdivision 2 as separately amended by chapters 764 and  765  of  the
laws  of  2005,  paragraphs  (c)  and (d) of subdivision 1 as amended by
chapter 7 of the laws of 2007, and the opening  paragraph  of  paragraph
(c)  of subdivision 2 as amended by chapter 764 of the laws of 2005, are
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); aggravated criminally
negligent homicide as defined in section 125.11, aggravated 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, gang assault in the second
degree as defined in section 120.06, burglary in the  second  degree  as
defined  in  section  140.25, robbery in the second degree as defined in
section 160.10, criminal 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,  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 chemi-
cal weapon or biological weapon  in  the  third  degree  as  defined  in
section  490.37, AND CRIMINAL SALE OF A FIREARM TO A MINOR AS DEFINED IN
SECTION 265.16.
  (c) Class D violent felony offenses: an attempt to commit any  of  the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section  120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, rape in the second degree as defined  in  section
130.30,  criminal  sexual act in the second degree as defined in section

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130.45, sexual abuse in the first degree as defined in  section  130.65,
course of sexual conduct against a child in the second degree as defined
in  section  130.80,  aggravated  sexual  abuse  in  the third degree as
defined  in section 130.66, facilitating a sex offense with a controlled
substance as defined in section 130.90, criminal possession of a  weapon
in  the  third  degree  as defined in subdivision five, six, seven [or],
eight OR NINE of section 265.02, criminal sale of a firearm in the third
degree as defined in section 265.11, intimidating a victim or witness in
the second degree as defined in section 215.16, soliciting or  providing
support  for  an  act  of  terrorism  in the second degree as defined in
section 490.10, and making a terroristic threat as  defined  in  section
490.20,  falsely reporting an incident in the first degree as defined in
section 240.60, placing a false bomb or hazardous substance in the first
degree as defined in section 240.62, placing a false bomb  or  hazardous
substance  in a sports stadium or arena, mass transportation facility or
enclosed shopping mall as defined  in  section  240.63,  and  aggravated
unpermitted use of indoor pyrotechnics in the first degree as defined in
section 405.18.
  (d)  Class  E violent felony offenses: an attempt to commit any of the
felonies of criminal possession of a  weapon  in  the  third  degree  as
defined  in  subdivision five, six, seven [or], eight OR NINE of section
265.02 as a lesser included  offense  of  that  section  as  defined  in
section 220.20 of the criminal procedure law, ATTEMPTED CRIMINAL SALE OF
A  FIREARM  IN THE THIRD DEGREE AS DEFINED IN SECTION 265.11 AS A LESSER
INCLUDED OFFENSE OF THAT SECTION AS DEFINED IN  SECTION  220.20  OF  THE
CRIMINAL  PROCEDURE  LAW,  persistent sexual abuse as defined in section
130.53, aggravated sexual abuse in  the  fourth  degree  as  defined  in
section  130.65-a, falsely reporting an incident in the second degree as
defined in  section  240.55  and  placing  a  false  bomb  or  hazardous
substance in the second degree as defined in section 240.61.
  (b)  Except as provided in paragraph (b-1) of this subdivision, subdi-
vision six of section 60.05 and subdivision four of  this  section,  the
sentence imposed upon a person who stands convicted of a class D violent
felony offense, other than the offense of criminal possession of a weap-
on  in  the  third  degree as defined in subdivision [four,] five, seven
[or], eight, OR NINE of section 265.02 or criminal sale of a firearm  in
the  third  degree  as  defined in section 265.11, must be in accordance
with the applicable provisions of this chapter  relating  to  sentencing
for  class D felonies provided, however, that where a sentence of impri-
sonment is imposed which requires a commitment to the  state  department
of  correctional services, such sentence shall be a determinate sentence
in accordance with paragraph (c) of subdivision three of this section.
  Except as provided in subdivision six of section 60.05,  the  sentence
imposed upon a person who stands convicted of the class D violent felony
offenses  of  criminal  possession  of  a  weapon in the third degree as
defined in subdivision [four,] five,  seven  [or],  eight,  OR  NINE  of
section 265.02, OR THE CLASS E VIOLENT FELONY OFFENSE OF ATTEMPTED CRIM-
INAL SALE OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN SECTION 265.11,
criminal  sale  of  a  firearm in the third degree as defined in section
265.11 or the class E violent felonies of attempted criminal  possession
of  a weapon in the third degree as defined in subdivision [four,] five,
seven or eight of section 265.02 must be a  sentence  to  a  determinate
period  of  imprisonment, or, in the alternative, a definite sentence of
imprisonment for a period of no less than one year, except that:

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  S 12. Subparagraph (iv) of paragraph (d) of subdivision 5  of  section
220.10  of  the criminal procedure law, as amended by chapter 189 of the
laws of 2000, is amended to read as follows:
  (iv)  Where the indictment charges the class D violent felony offenses
of criminal possession of a weapon in the third  degree  as  defined  in
[subdivision  four of section 265.02 of the penal law and the provisions
of subparagraph (iii) of this paragraph do not  apply,  or]  subdivision
five,  seven  [or],  eight,  OR NINE of section 265.02 of the penal law,
then a plea of guilty must include at least a plea of guilty to a  class
E violent felony offense.
  S  13.  Subparagraph  (v) of paragraph (b) of subdivision 3 of section
220.30 of the criminal procedure law, as amended by chapter 189  of  the
laws of 2000, is amended to read as follows:
  (v)  A plea of guilty, whether to the entire indictment or part of the
indictment, for any crime other than a violent felony offense as defined
in section 70.02 of the penal law, may not be accepted on the  condition
that  it constitutes a complete disposition of one or more other indict-
ments against the defendant wherein is charged the class D violent felo-
ny offenses of criminal possession of a weapon in the  third  degree  as
defined  in  subdivision  [four,]  five,  seven  [or], eight, OR NINE of
section 265.02 of the penal law; provided, however, a  plea  of  guilty,
whether  to  the  entire  indictment  or part of the indictment, for the
class A misdemeanor of criminal possession of a  weapon  in  the  fourth
degree  as defined in subdivision one of section 265.01 of the penal law
may be accepted on the condition that it constitutes a complete disposi-
tion of one or more other indictments against the defendant  wherein  is
charged the class [D] B violent felony offense of criminal possession of
a  weapon  in the [third] SECOND degree as defined in subdivision [four]
THREE of section [265.02] 265.03 of the penal law when the defendant has
not been previously convicted of a class A misdemeanor  defined  in  the
penal law in the five years preceding the commission of the offense.
  S  14. The opening paragraph of subdivision 2 of section 400.00 of the
penal law, as amended by chapter 189 of the laws of 2000, is amended  to
read as follows:
  A  license  for  gunsmith  or  dealer in firearms OTHER THAN DANGEROUS
FIREARMS shall be issued to engage in such business.  A  license  for  a
pistol  or  revolver,  other  than an assault weapon or a disguised gun,
THAT IS NOT A DANGEROUS FIREARM shall be issued to (a) have and  possess
in  his  dwelling by a householder; (b) have and possess in his place of
business by a merchant or storekeeper;  (c)  have  and  carry  concealed
while  so  employed  by a messenger employed by a banking institution or
express company; (d) have and  carry  concealed  by  a  justice  of  the
supreme court in the first or second judicial departments, or by a judge
of  the  New  York city civil court or the New York city criminal court;
(e) have and carry concealed while so employed by a regular employee  of
an  institution  of  the state, or of any county, city, town or village,
under control of a commissioner of correction of the city or any warden,
superintendent or head keeper of any state prison,  penitentiary,  work-
house,  county  jail  or  other institution for the detention of persons
convicted or accused of crime or held as witnesses  in  criminal  cases,
provided that application is made therefor by such commissioner, warden,
superintendent  or  head  keeper;  (f) have and carry concealed, without
regard to employment or place of possession, by any person  when  proper
cause  exists  for  the issuance thereof; and (g) have, possess, collect
and carry antique pistols which are defined as follows: (i)  any  single
shot, muzzle loading pistol with a matchlock, flintlock, percussion cap,

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or similar type of ignition system manufactured in or before l898, which
is not designed for using rimfire or conventional centerfire fixed ammu-
nition; and (ii) any replica of any pistol described in clause (i) here-
of if such replica--
  S  15. The superintendent of the division of state police shall under-
take the following activities: (a) publicizing the  provisions  of  this
act  banning the possession and use of dangerous firearms, (b) providing
advice to lawful  gun  owners  as  to  how  they  can  comply  with  the
provisions  of  this  act,  and (c) taking such other actions consistent
with the purposes of this act which will facilitate compliance with  the
ban  on  dangerous  firearms  and  result in the lowest possible cost to
lawful gun owners to achieve such compliance.
  S 16. This act shall take effect on the  three  hundred  sixtieth  day
after it shall have become a law, provided however, that the division of
state  police  is authorized and directed to immediately conduct testing
and evaluations as required in section three of this act and  to  publi-
cize the provisions of this act and assist lawful gun owners as required
under section fifteen of this act.