S T A T E   O F   N E W   Y O R K
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                                  4379

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 3, 2009
                               ___________

Introduced  by  M. of A. KOON, GREENE, DINOWITZ -- Multi-Sponsored by --
  M. of A. BRENNAN, GALEF, HOOPER, HOYT, JACOBS, JOHN, MAGEE, MAYERSOHN,
  WRIGHT -- read once and referred to the Committee on Codes

AN ACT to amend the penal law, in relation to increasing the penalty for
  assault in the first and second degrees and including assault  in  the
  definition of criminal use of a firearm in the first degree

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

  Section 1. The closing paragraph of section 120.05 of the penal law is
amended to read as follows:
  Assault in the second degree is a class [D] C felony.
  S 2. 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:
  (1)  A  person  is  guilty  of  criminal use of a firearm in the first
degree when [he]:
  A. (I) HE OR SHE commits any class B violent felony offense as defined
in paragraph (a) of subdivision one of section 70.02; OR
  (II) HE OR SHE COMMITS ASSAULT IN  THE  THIRD  DEGREE  AS  DEFINED  IN
SECTION  120.00  OR  ASSAULT  IN THE SECOND DEGREE AS DEFINED IN SECTION
120.05 OR ASSAULT IN THE FIRST DEGREE AS DEFINED IN SECTION 120.10;  and
[he]
  B. HE OR SHE either:
  [(a)]  (I) 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)]  (II)  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.
  S 3. Subdivisions 4 and 5 of  section  60.05  of  the  penal  law,  as
amended  by  chapter  738  of  the  laws of 2004, are amended to read as
follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02435-01-9
              

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  4. Certain class C felonies. Except as provided  in  subdivision  six,
every person convicted of a class C violent felony offense as defined in
subdivision  one  of  section  70.02 of this title, must be sentenced to
imprisonment in accordance with section 70.02 of this title; and, except
as  provided  in subdivision six of this section, every person convicted
of the class C felonies of: attempt to commit any of the class  B  felo-
nies  of bribery in the first degree as defined in section 200.04, bribe
receiving in the first degree as defined in section  200.12,  conspiracy
in  the second degree as defined in section 105.15 and criminal mischief
in the first degree as defined in section 145.12; criminal usury in  the
first degree as defined in section 190.42, rewarding official misconduct
in  the  first degree as defined in section 200.22, receiving reward for
official misconduct in the first degree as defined  in  section  200.27,
attempt  to  promote  prostitution  in  the  first  degree as defined in
section 230.32, promoting prostitution in the second degree  as  defined
in  section  230.30,  ASSAULT IN THE SECOND DEGREE AS DEFINED IN SECTION
120.05, AND arson in the third degree as defined in  section  150.10  of
this  chapter,  must  be  sentenced  to  imprisonment in accordance with
section 70.00 of this title.
  5. Certain class D felonies. Except as provided in subdivision six  of
this section, every person convicted of the class D [felonies] FELONY of
[assault  in  the second degree as defined in section 120.05 or] attempt
to commit a class C felony as defined in section 230.30 of this chapter,
must be sentenced in accordance with section  70.00  or  85.00  of  this
title.
  S  4.  Paragraphs (b) and (c) of subdivision 1 of section 70.02 of the
penal law, paragraph (b) as separately amended by chapters 764  and  765
of  the  laws  of  2005 and paragraph (c) as amended by chapter 7 of the
laws of 2007, 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 IN THE
SECOND DEGREE AS DEFINED IN SECTION 120.05, 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, crim-
inal 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 chemical weapon or biolog-
ical weapon in the third degree as defined in section 490.37.
  (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 130.45, sexual abuse  in  the  first  degree  as  defined  in

A. 4379                             3

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 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.
  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.