S T A T E O F N E W Y O R K
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5169
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
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Introduced by M. of A. LAVINE -- read once and referred to the Committee
on Codes
AN ACT to amend the penal law and the criminal procedure law, in
relation to increasing the sentences for class B armed violent felony
offenses, eliminating the consecutive sentence provision for criminal
use of a firearm in the first degree convictions, and requiring that
the counts of criminal use of a firearm in the first degree and its
predicate class B violent felony offense be submitted to a jury when-
ever such charges are supported by legally sufficient trial evidence
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraph (a) of subdivision 3 of section 70.02 of the
penal law, as amended by chapter 765 of the laws of 2005, is amended to
read as follows:
(a) For a class B felony, the term must be at least five years and
must not exceed twenty-five years, provided, however, that the term must
be: (i) at least ten years and must not exceed thirty years where the
sentence is for the crime of aggravated assault upon a police officer or
peace officer as defined in section 120.11 of this chapter; and (ii) at
least ten years and must not exceed thirty years where the sentence is
for the crime of aggravated manslaughter in the first degree as defined
in section 125.22 of this chapter; AND (III) AT LEAST TEN YEARS AND MUST
NOT EXCEED THIRTY YEARS WHERE THE SENTENCE IS FOR A CLASS B VIOLENT
FELONY OFFENSE AS DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE OF THIS
SECTION AND SUCH OFFENSE IS ALSO AN ARMED FELONY AS DEFINED IN SECTION
1.20 OF THE CRIMINAL PROCEDURE LAW;
S 2. Paragraph (a) of subdivision 3 of section 70.04 of the penal law,
as amended by chapter 3 of the laws of 1995, is amended to read as
follows:
(a) For a class B felony, the term must be at least ten years and must
not exceed twenty-five years, PROVIDED, HOWEVER, THAT THE TERM MUST BE
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08922-02-9
A. 5169 2
AT LEAST FIFTEEN YEARS AND NOT EXCEED THIRTY YEARS WHERE THE SENTENCE IS
FOR A CLASS B VIOLENT FELONY OFFENSE AS DEFINED IN THIS CHAPTER AND SUCH
OFFENSE IS ALSO AN ARMED FELONY AS DEFINED IN SECTION 1.20 OF THE CRIMI-
NAL PROCEDURE LAW;
S 3. Paragraph (a) of subdivision 3 of section 70.04 of the penal law,
as added by chapter 481 of the laws of 1978, is amended to read as
follows:
(a) For a class B felony, the term must be at least twelve years and
must not exceed twenty-five years, PROVIDED, HOWEVER, THAT THE TERM MUST
BE AT LEAST FIFTEEN YEARS AND NOT EXCEED THIRTY YEARS WHERE THE SENTENCE
IS FOR A CLASS B VIOLENT FELONY OFFENSE AS DEFINED IN THIS CHAPTER AND
SUCH OFFENSE IS ALSO AN ARMED FELONY AS DEFINED IN SECTION 1.20 OF THE
CRIMINAL PROCEDURE LAW;
S 4. Paragraph (a) of subdivision 6 of section 70.06 of the penal law,
as added by chapter 3 of the laws of 1995, is amended to read as
follows:
(a) For a class B violent felony offense, the term must be at least
eight years and must not exceed twenty-five years, PROVIDED, HOWEVER,
THAT THE TERM MUST BE AT LEAST THIRTEEN YEARS AND NOT EXCEED THIRTY
YEARS WHERE SUCH OFFENSE IS ALSO AN ARMED FELONY AS DEFINED IN SECTION
1.20 OF THE CRIMINAL PROCEDURE LAW;
S 5. 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 OR SHE commits any class B violent felony offense as
defined in paragraph (a) of subdivision one of section 70.02 OF THIS
CHAPTER OTHER THAN AN ARMED FELONY AS DEFINED IN SECTION 1.20 OF THE
CRIMINAL PROCEDURE LAW and he OR SHE 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 an additional consecutive sentence of five years to the
minimum term of an indeterminate sentence imposed on the underlying
class B violent felony offense where the person convicted of such crime
displays 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 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 serious-
ness of the crime. Notwithstanding any other provision of law to the
contrary, the aggregate of the five year consecutive term imposed pursu-
ant to this subdivision and the minimum term of the indeterminate
sentence imposed on the underlying class B violent felony shall consti-
tute 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 condi-
A. 5169 3
tional 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.]
S 6. Subdivision 3 of section 300.40 of the criminal procedure law,
the opening paragraph as amended by chapter 1 of the laws of 1995, is
amended to read as follows:
3. If a multiple count indictment contains concurrent counts of murder
in the first degree, the court must submit every such count. In any
other case, if a multiple count indictment contains concurrent counts
only, the court must submit at least one such count, and may submit more
than one as follows:
(a) With respect to non-inclusory concurrent counts, the court may in
its discretion submit one or more or all thereof;
(b) With respect to inclusory concurrent counts, the court must
submit the greatest or inclusive count and may or must, under circum-
stances prescribed in section 300.50, also submit, but in the alterna-
tive only, one or more of the lesser included counts. A verdict of
guilty upon the greatest count submitted is deemed a dismissal of every
lesser count submitted, but not an acquittal thereon. A verdict of
guilty upon a lesser count is deemed an acquittal upon every greater
count submitted[.];
(C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, IN ANY
CASE WHERE A COUNT OF CRIMINAL USE OF A FIREARM IN THE FIRST DEGREE, AS
DEFINED IN SECTION 265.09 OF THE PENAL LAW, IS SUPPORTED AT TRIAL BY
LEGALLY SUFFICIENT EVIDENCE, THAT COUNT MUST BE SUBMITTED TOGETHER WITH
THE COUNT CHARGING ITS PREDICATE CLASS B VIOLENT FELONY OFFENSE FOR A
VERDICT TO BE RENDERED ON EACH.
S 7. This act shall take effect immediately; provided that the amend-
ments to subdivision 3 of section 70.04 of the penal law made by section
two of this act shall be subject to the expiration and reversion of such
subdivision pursuant to section 74 of chapter 3 of the laws of 1995, as
amended, when upon such date the provisions of section three of this act
shall take effect; and provided further that the amendments to subdivi-
sion 6 of section 70.06 of the penal law made by section four of this
act shall not affect the repeal of such subdivision and shall be deemed
repealed therewith.