S T A T E   O F   N E W   Y O R K
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                                  4376

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 3, 2009
                               ___________

Introduced  by  M.  of A. KOON, CARROZZA, ENGLEBRIGHT, DESTITO, RAMOS --
  Multi-Sponsored by  --  M.  of  A.  ABBATE,  BRADLEY,  CLARK,  COLTON,
  CYMBROWITZ,  DIAZ,  GALEF, JACOBS, JOHN, McENENY, PHEFFER -- read once
  and referred to the Committee on Codes

AN ACT to amend the  penal  law  and  the  criminal  procedure  law,  in
  relation  to the criminal use of a deadly weapon during the commission
  of a felony, to amend the general business law  and  the  vehicle  and
  traffic  law,  in relation to making technical corrections thereto and
  to repeal section 265.09 of the penal law relating thereto

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

  Section 1. Subdivision 2 of section 70.25 of the penal law, as amended
by chapter 56 of the laws of 1984, is amended to read as follows:
  2.  When more than one sentence of imprisonment is imposed on a person
for two or more offenses committed through a single act or omission,  or
through  an  act  or  omission  which  in  itself constituted one of the
offenses and also was a material element of the  other,  the  sentences,
except  if  one  or more of such sentences is for a violation of section
265.08 OR 270.20 of this chapter,  must  run  concurrently.    PROVIDED,
FURTHER,  IN  THE CASE OF A VIOLATION OF SECTION 265.08 OF THIS CHAPTER,
THE SENTENCE OF IMPRISONMENT FOR SUCH OFFENSE SHALL RUN CONSECUTIVELY TO
ALL OTHER SENTENCES IMPOSED.
  S 2. Section 265.08 of the penal law, as added by chapter 233  of  the
laws of 1980, is amended to read as follows:
S 265.08 Criminal use of a [firearm in the second degree] DEADLY WEAPON.
  A person is guilty of criminal use of a [firearm in the second degree]
DEADLY  WEAPON  when  he  commits [any class C violent felony offense as
defined in paragraph (b) of subdivision one of section 70.02]  A  FELONY
and he either:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02411-01-9

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  (1)  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]
  (2)  DISPLAYS A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER
FIREARM; OR
  (3) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
machine gun or other firearm.
  Criminal  use  of  a [firearm in the second degree] DEADLY WEAPON is a
class [C] A-I felony PROVIDED, HOWEVER, THAT CRIMINAL USE  OF  A  DEADLY
WEAPON  AS  DEFINED  IN  SUBDIVISION  THREE OF THIS SECTION IS A CLASS B
FELONY.
  S 3. Section 265.09 of the penal law is REPEALED.
  S 4. Paragraph (a) of subdivision 5 of section 220.10 of the  criminal
procedure  law  is  amended by adding a new subparagraph (ii) to read as
follows:
  (II) WHERE THE INDICTMENT CHARGES THE CLASS A-I FELONY OF CRIMINAL USE
OF A DEADLY WEAPON AS DEFINED IN SECTION 265.08 OF THE  PENAL  LAW,  ANY
PLEA TO SUCH INDICTMENT SHALL INCLUDE A PLEA OF GUILTY TO SUCH CHARGE.
  S 5. Paragraph (a) of subdivision 1 of section 70.02 of the penal law,
as  amended  by  chapter  320 of the laws of 2006, is amended to read as
follows:
  (a) Class B violent felony offenses: an attempt to  commit  the  class
A-I  felonies  of  murder  in  the  second  degree as defined in section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson in the first degree as defined in section 150.20; manslaughter  in
the  first  degree as defined in section 125.20, aggravated manslaughter
in the first degree as defined in section  125.22,  rape  in  the  first
degree  as  defined  in section 130.35, criminal sexual act in the first
degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
first  degree  as  defined  in  section 130.70, course of sexual conduct
against a child in the  first  degree  as  defined  in  section  130.75;
assault  in the first degree as defined in section 120.10, kidnapping in
the second degree as defined in section 135.20, burglary  in  the  first
degree  as  defined  in  section  140.30,  arson in the second degree as
defined in section 150.15, robbery in the first  degree  as  defined  in
section 160.15, incest in the first degree as defined in section 255.27,
criminal  possession  of  a  weapon  in  the  first degree as defined in
section 265.04, criminal use of a [firearm in the first  degree]  DEADLY
WEAPON as defined in SUBDIVISION THREE OF section [265.09] 265.08, crim-
inal sale of a firearm in the first degree as defined in section 265.13,
aggravated  assault  upon a police officer or a peace officer as defined
in section 120.11, gang assault  in  the  first  degree  as  defined  in
section  120.07, intimidating a victim or witness in the first degree as
defined in section 215.17, hindering prosecution  of  terrorism  in  the
first  degree  as  defined  in  section 490.35, criminal possession of a
chemical weapon or biological weapon in the second degree as defined  in
section  490.40,  and  criminal  use  of a chemical weapon or biological
weapon in the third degree as defined in section 490.47.
  S 6. 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:
  1. Suspension and revocation of licenses; fines; reprimands. A license
issued  pursuant  to this article may be suspended or revoked, or a fine
not exceeding five hundred dollars payable  to  the  department  may  be
imposed for any one or more of the following causes:
  a.  Fraud  or  bribery  in securing a license or permission to take an
examination therefor.

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  b. The making of any false statement as to a material  matter  in  any
application or other statement or certificate required by or pursuant to
this article.
  c. Incompetence or untrustworthiness.
  d. Failure to display the license as provided in this article.
  e. Violation of any provision of this article, or of any rule or regu-
lation adopted hereunder.
  f.  Conviction  of any of the following crimes subsequent to the issu-
ance 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  DEADLY weapon pursuant to [sections] SECTION 265.08 [and 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, howev-
er, 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.
  Provided, however, a fine shall not be imposed for the  causes  speci-
fied in paragraph f of this subdivision.
  In  lieu  of  or in conjunction with the suspension or revocation of a
license, or the imposition of a  fine  pursuant  to  this  section,  the
secretary  may issue a reprimand. When a license issued pursuant to this
article is revoked, such license shall not  be  reinstated  or  reissued
until after the expiration of a period of one year from the date of such
revocation. No license shall be issued after a second revocation.
  S  7.  Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
and traffic law, as amended by chapter 345  of  the  laws  of  2007,  is
amended to read as follows:
  (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
subdivision one and subparagraph (i) of paragraph (c) of subdivision two
of this section that result in disqualification for  a  period  of  five
years  shall include a conviction under sections 100.10, 105.13, 115.05,
120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  125.13,  125.14,
125.40,  125.45, 130.20, 130.25, 130.55, 135.10, 135.55, 140.17, 140.25,
140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,  220.16,
220.31,  220.34, 220.60, 221.30, 221.50, 221.55, 230.00, 230.05, 230.06,
230.20, 230.25, 230.30, 230.32, 235.05, 235.06, 235.07, 235.21,  240.06,
245.00,  260.10,  subdivision two of section 260.20 and sections 260.25,
265.02, 265.03, 265.08, [265.09,] 265.10, 265.12, 265.35  of  the  penal
law  or an attempt to commit any of the aforesaid offenses under section

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110.00 of the penal law, or  any  similar  offenses  committed  under  a
former  section  of  the  penal  law,  or any offenses committed under a
former section of the penal law which would constitute violations of the
aforesaid  sections  of the penal law, or any offenses committed outside
this state which would constitute violations of the  aforesaid  sections
of the penal law.
  S 8. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.