Senate Bill S2110A

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

                                 2110--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by Sens. GOLDEN, ALESI, BONACIC, DeFRANCISCO, FARLEY, FLANA-
  GAN, FUSCHILLO, GRIFFO, HANNON, O. JOHNSON,  LANZA,  LARKIN,  LAVALLE,
  LEIBELL,  LIBOUS,  LITTLE,  MARCELLINO,  MAZIARZ,  McDONALD,  MORAHAN,
  NOZZOLIO, PADAVAN, RANZENHOFER, ROBACH, SALAND, SEWARD, SKELOS,  VOLK-
  ER,  WINNER, YOUNG -- read twice and ordered printed, and when printed
  to be committed to the  Committee  on  Codes  --  recommitted  to  the
  Committee on Codes in accordance with Senate Rule 6, sec. 8 -- commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee

AN ACT to amend the penal law, the  vehicle  and  traffic  law  and  the
  general  business law, in relation to criminal use of a firearm in the
  first degree and to repeal certain provisions of the penal law  relat-
  ing thereto

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

  Section 1. Section 265.09 of the penal law, as amended by chapter  650
of the laws of 1996, is amended 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] 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)]  OR  SHE  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08271-02-0
              

S. 2110--A                          2

shall impose [an additional] A consecutive sentence of five years to the
minimum term of [an indeterminate] THE sentence imposed on the  underly-
ing  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  further-
ance of the commission of such crime, provided, however, that such addi-
tional  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  seri-
ousness 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
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 condi-
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] THIS
CHAPTER.
  S 2. Section 265.08 of the penal law is REPEALED.
  S 3. 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
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 4. 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,

S. 2110--A                          3

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
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 5. 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 6. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.