S T A T E O F N E W Y O R K
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11632
I N A S S E M B L Y
July 6, 2010
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Introduced by COMMITTEE ON RULES -- (at request of M. of A. Fields) --
read once and referred to the Committee on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to second firearm offenders
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new section 70.11 to
read as follows:
S 70.11 SENTENCE OF IMPRISONMENT FOR SECOND FIREARM OFFENDER.
1. DEFINITION OF SECOND FIREARM OFFENDER. (A) A SECOND FIREARM OFFEN-
DER IS A PERSON WHO STANDS CONVICTED OF A FIREARM OFFENSE, DEFINED AS
ANY OFFENSE DEFINED BY ARTICLE TWO HUNDRED SIXTY-FIVE OF THIS CHAPTER,
AFTER HAVING PREVIOUSLY BEEN SUBJECTED TO A PREDICATE FIREARM CONVICTION
AS DEFINED IN PARAGRAPH (B) OF THIS SUBDIVISION.
(B) FOR THE PURPOSE OF DETERMINING WHETHER A PRIOR CONVICTION IS A
PREDICATE FIREARM CONVICTION THE FOLLOWING CRITERIA SHALL APPLY:
(I) THE CONVICTION MUST HAVE BEEN IN THIS STATE FOR ANY OFFENSE
DEFINED BY ARTICLE TWO HUNDRED SIXTY-FIVE OF THIS CHAPTER;
(II) SENTENCE UPON SUCH PRIOR CONVICTION SHALL HAVE BEEN IMPOSED
BEFORE COMMISSION OF THE PRESENT FIREARM OFFENSE;
(III) SUSPENDED SENTENCE, SUSPENDED EXECUTION OF SENTENCE, A SENTENCE
OF PROBATION, A SENTENCE OF CONDITIONAL DISCHARGE OR OF UNCONDITIONAL
DISCHARGE, AND A SENTENCE OF CERTIFICATION TO THE CARE AND CUSTODY OF
THE DIVISION OF SUBSTANCE ABUSE SERVICES, SHALL BE DEEMED TO BE A
SENTENCE;
(IV) EXCEPT AS PROVIDED IN SUBPARAGRAPH (V) OF THIS PARAGRAPH,
SENTENCE MUST HAVE BEEN IMPOSED NOT MORE THAN TEN YEARS BEFORE COMMIS-
SION OF THE FIREARM OFFENSE OF WHICH THE DEFENDANT PRESENTLY STANDS
CONVICTED;
(V) IN CALCULATING THE TEN YEAR PERIOD UNDER SUBPARAGRAPH (IV) OF
THIS PARAGRAPH, ANY PERIOD OF TIME DURING WHICH THE PERSON WAS INCARCER-
ATED FOR ANY REASON BETWEEN THE TIME OF COMMISSION OF THE PREVIOUS
FIREARM OFFENSE AND THE TIME OF COMMISSION OF THE PRESENT FIREARM
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17117-01-0
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OFFENSE SHALL BE EXCLUDED AND SUCH TEN YEAR PERIOD SHALL BE EXTENDED BY
A PERIOD OR PERIODS EQUAL TO THE TIME SERVED UNDER SUCH INCARCERATION;
(VI) AN OFFENSE FOR WHICH THE DEFENDANT HAS BEEN PARDONED ON THE
GROUND OF INNOCENCE SHALL NOT BE DEEMED A PREDICATE FIREARM CONVICTION.
2. AUTHORIZED SENTENCE. WHEN THE COURT HAS FOUND, PURSUANT TO THE
PROVISIONS OF THE CRIMINAL PROCEDURE LAW, THAT A PERSON IS A SECOND
FIREARM OFFENDER THE COURT MUST IMPOSE AN INDETERMINATE SENTENCE OF
IMPRISONMENT. EXCEPT WHERE SUCH SENTENCE IS IMPOSED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 70.10 OF THIS ARTICLE, THE MAXIMUM TERM OF
SUCH SENTENCE MUST BE IN ACCORDANCE WITH THE PROVISIONS OF SUBDIVISION
THREE OF THIS SECTION AND THE MINIMUM PERIOD OF IMPRISONMENT UNDER SUCH
SENTENCE MUST BE IN ACCORDANCE WITH SUBDIVISION FOUR OF THIS SECTION.
3. MAXIMUM TERM OF SENTENCE. THE MAXIMUM TERM OF AN INDETERMINATE
SENTENCE FOR A SECOND FIREARM OFFENDER MUST BE FIXED BY THE COURT AS
FOLLOWS:
(A) FOR A CLASS A FELONY, THE TERM MUST BE AT LEAST TWENTY-FIVE YEARS
AND MUST NOT EXCEED FIFTY YEARS;
(B) FOR A CLASS B FELONY, THE TERM MUST BE AT LEAST TWELVE YEARS AND
MUST NOT EXCEED TWENTY-FIVE YEARS;
(C) FOR A CLASS C FELONY, THE TERM MUST BE AT LEAST EIGHT YEARS AND
MUST NOT EXCEED FIFTEEN YEARS;
(D) FOR A CLASS D FELONY, THE TERM MUST BE AT LEAST FIVE YEARS AND
MUST NOT EXCEED SEVEN YEARS; AND
(E) FOR A CLASS E FELONY, THE TERM MUST BE AT LEAST FOUR YEARS.
4. MINIMUM PERIOD OF IMPRISONMENT. THE MINIMUM PERIOD OF IMPRISONMENT
UNDER AN INDETERMINATE SENTENCE FOR A SECOND VIOLENT FELONY OFFENDER
MUST BE FIXED BY THE COURT AT ONE-HALF OF THE MAXIMUM TERM IMPOSED AND
MUST BE SPECIFIED IN THE SENTENCE.
S 2. Section 215.10 of the criminal procedure law, as added by chapter
837 of the laws of 1986, is amended to read as follows:
S 215.10 Referral of selected felonies to dispute resolution.
Upon or after arraignment in a local criminal court upon a felony
complaint, or upon or after arraignment in a superior court upon an
indictment or superior court information, and before final disposition
thereof, the court, with the consent of the people and of the defendant,
and with reasonable notice to the victim and an opportunity for the
victim to be heard, may order that the action be adjourned in contem-
plation of dismissal, for the purpose of referring the action to a
community dispute center established pursuant to article twenty-one-A of
the judiciary law. Provided, however, that the court may not order any
action adjourned in contemplation of dismissal if the defendant is
charged therein with: (i) a class A felony, or (ii) a violent felony
offense as defined in section 70.02 of the penal law, or (iii) any drug
offense as defined in article two hundred twenty of the penal law, or
(iv) a felony upon the conviction of which defendant must be sentenced
as a second felony offender, a second violent felony offender, [or] a
persistent violent felony offender, OR A SECOND FIREARM OFFENDER pursu-
ant to sections 70.06, 70.04 [and], 70.08 AND 70.11 of the penal law, or
a felony upon the conviction of which defendant may be sentenced as a
persistent felony offender pursuant to section 70.10 of such law.
S 3. The criminal procedure law is amended by adding a new section
400.17 to read as follows:
S 400.17 PROCEDURE FOR DETERMINING WHETHER DEFENDANT IS A SECOND FIREARM
OFFENDER.
1. APPLICABILITY. THE PROVISIONS OF THIS SECTION GOVERN THE PROCEDURE
THAT MUST BE FOLLOWED IN ANY CASE WHERE IT APPEARS THAT A DEFENDANT WHO
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STANDS CONVICTED OF A FIREARM OFFENSE AS DEFINED IN SUBDIVISION ONE OF
SECTION 70.11 OF THE PENAL LAW HAS PREVIOUSLY BEEN SUBJECTED TO A PREDI-
CATE FIREARM CONVICTION AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE
OF SECTION 70.11 OF THE PENAL LAW AND MAY BE A SECOND FIREARM OFFENDER.
2. STATEMENT TO BE FILED. WHEN INFORMATION AVAILABLE TO THE COURT OR
TO THE PEOPLE PRIOR TO SENTENCING FOR A FIREARM OFFENSE INDICATES THAT
THE DEFENDANT MAY HAVE PREVIOUSLY BEEN SUBJECTED TO A PREDICATE FIREARM
CONVICTION, A STATEMENT MUST BE FILED BY THE PROSECUTOR BEFORE SENTENCE
IS IMPOSED SETTING FORTH THE DATE AND PLACE OF EACH ALLEGED PREDICATE
FIREARM CONVICTION. WHERE THE PROVISIONS OF SUBPARAGRAPH (V) OF PARA-
GRAPH (B) OF SUBDIVISION ONE OF SECTION 70.11 OF THE PENAL LAW APPLY,
SUCH STATEMENT ALSO SHALL SET FORTH THE DATE OF COMMENCEMENT AND THE
DATE OF TERMINATION AS WELL AS THE PLACE OF IMPRISONMENT FOR EACH PERIOD
OF INCARCERATION TO BE USED FOR TOLLING OF THE TEN YEAR LIMITATION SET
FORTH IN SUBPARAGRAPH (IV) OF PARAGRAPH (B) OF SUCH SUBDIVISION.
3. PRELIMINARY EXAMINATION. THE DEFENDANT MUST BE GIVEN A COPY OF SUCH
STATEMENT AND THE COURT MUST ASK THE DEFENDANT WHETHER HE OR SHE WISHES
TO CONTROVERT ANY ALLEGATION MADE THEREIN. IF THE DEFENDANT WISHES TO
CONTROVERT ANY ALLEGATION IN THE STATEMENT, HE OR SHE MUST SPECIFY THE
PARTICULAR ALLEGATION OR ALLEGATIONS HE OR SHE WISHES TO CONTROVERT.
UNCONTROVERTED ALLEGATIONS IN THE STATEMENT SHALL BE DEEMED TO HAVE BEEN
ADMITTED BY THE DEFENDANT.
4. CASES WHERE FURTHER HEARING IS NOT REQUIRED. WHERE THE UNCONTRO-
VERTED ALLEGATIONS IN THE STATEMENT ARE SUFFICIENT TO SUPPORT A FINDING
THAT THE DEFENDANT HAS BEEN SUBJECTED TO A PREDICATE FIREARM CONVICTION
THE COURT MUST ENTER SUCH FINDING AND WHEN IMPOSING SENTENCE MUST
SENTENCE THE DEFENDANT IN ACCORDANCE WITH THE PROVISIONS OF SECTION
70.11 OF THE PENAL LAW.
5. CASES WHERE FURTHER HEARING IS REQUIRED. WHERE THE DEFENDANT
CONTROVERTS AN ALLEGATION IN THE STATEMENT AND THE UNCONTROVERTED ALLE-
GATIONS IN SUCH STATEMENT ARE NOT SUFFICIENT TO SUPPORT A FINDING THAT
THE DEFENDANT HAS BEEN SUBJECTED TO A PREDICATE FIREARM CONVICTION THE
COURT MUST PROCEED TO HOLD A HEARING.
6. TIME FOR HEARING. IN ANY CASE WHERE A COPY OF THE STATEMENT WAS NOT
RECEIVED BY THE DEFENDANT AT LEAST TWO DAYS PRIOR TO THE PRELIMINARY
EXAMINATION, THE COURT MUST UPON REQUEST OF THE DEFENDANT GRANT AN
ADJOURNMENT OF AT LEAST TWO DAYS BEFORE PROCEEDING WITH THE HEARING.
7. MANNER OF CONDUCTING HEARING. (A) A HEARING PURSUANT TO THIS
SECTION MUST BE BEFORE THE COURT WITHOUT JURY. THE BURDEN OF PROOF IS
UPON THE PEOPLE AND A FINDING THAT THE DEFENDANT HAS BEEN SUBJECTED TO A
PREDICATE FIREARM CONVICTION MUST BE BASED UPON PROOF BEYOND A REASON-
ABLE DOUBT BY EVIDENCE ADMISSIBLE UNDER THE RULES APPLICABLE TO A TRIAL
OF THE ISSUE OF GUILT.
(B) A PREVIOUS CONVICTION IN THIS OR ANY OTHER JURISDICTION WHICH WAS
OBTAINED IN VIOLATION OF THE RIGHTS OF THE DEFENDANT UNDER THE APPLICA-
BLE PROVISIONS OF THE CONSTITUTION OF THE UNITED STATES MUST NOT BE
COUNTED IN DETERMINING WHETHER THE DEFENDANT HAS BEEN SUBJECTED TO A
PREDICATE FIREARM CONVICTION. THE DEFENDANT MAY, AT ANY TIME DURING THE
COURSE OF THE HEARING HEREUNDER CONTROVERT AN ALLEGATION WITH RESPECT TO
SUCH CONVICTION IN THE STATEMENT ON THE GROUNDS THAT THE CONVICTION WAS
UNCONSTITUTIONALLY OBTAINED. FAILURE TO CHALLENGE THE PREVIOUS
CONVICTION IN THE MANNER PROVIDED HEREIN CONSTITUTES A WAIVER ON THE
PART OF THE DEFENDANT OF ANY ALLEGATION OF UNCONSTITUTIONALITY UNLESS
GOOD CAUSE BE SHOWN FOR SUCH FAILURE TO MAKE TIMELY CHALLENGE.
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(C) AT THE CONCLUSION OF THE HEARING THE COURT MUST MAKE A FINDING AS
TO WHETHER OR NOT THE DEFENDANT HAS BEEN SUBJECTED TO A PREDICATE
FIREARM CONVICTION.
8. SUBSEQUENT USE OF PREDICATE FIREARM CONVICTION FINDING. WHERE A
FINDING HAS BEEN ENTERED PURSUANT TO THIS SECTION, SUCH FINDING SHALL BE
BINDING UPON THAT DEFENDANT IN ANY FUTURE PROCEEDING IN WHICH THE ISSUE
MAY ARISE.
S 4. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.