S T A T E O F N E W Y O R K
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423
2009-2010 Regular Sessions
I N A S S E M B L Y
(PREFILED)
January 7, 2009
___________
Introduced by M. of A. SEMINERIO -- read once and referred to the
Committee on Codes
AN ACT to amend the penal law, in relation to crimes committed with the
use of a firearm; to amend the general business law, the penal law,
and the vehicle and traffic law, in relation to making technical
corrections thereto; and to repeal section 265.08 of the penal law
relating to crimes committed with the use of a firearm
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Section 265.08 of the penal law is REPEALED.
S 2. Section 265.09 of the penal law, as amended by chapter 650 of the
laws of 1996, 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 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) 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 first degree] as defined in subdivision one of this section, the
court shall impose FOR A FIRST CONVICTION an additional consecutive
sentence of five years AND FOR A SECOND OR SUBSEQUENT CONVICTION AN
ADDITIONAL CONSECUTIVE SENTENCE OF TEN YEARS to the minimum term of an
indeterminate sentence imposed on the underlying [class B] violent felo-
ny offense where the person convicted of such crime displays a loaded
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01980-01-9
A. 423 2
weapon from which a shot, readily capable of producing death or other
serious injury may be discharged, 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 circumstances
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 aggre-
gate of the five OR TEN 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, in furtherance of the commission of crime is based on the
conduct of another pursuant to section 20.00 of [the penal law] THIS
CHAPTER.
S 3. 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 pursuant to sections 265.11 and 265.12; and sex
offenses pursuant to article 130 of the penal law. Provided, however,
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 4. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
as separately amended by chapters 764 and 765 of the laws of 2005, 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); aggravated criminally
negligent homicide as defined in section 125.11, aggravated manslaughter
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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.
S 5. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.