S T A T E O F N E W Y O R K
________________________________________________________________________
3292--A
2011-2012 Regular Sessions
I N A S S E M B L Y
January 24, 2011
___________
Introduced by M. of A. WEISENBERG, PAULIN, RAMOS, LIFTON, CLARK,
V. LOPEZ, TITUS, KAVANAGH, WRIGHT, SCHIMEL, CASTRO, BARRON, LANCMAN,
MILLMAN, DINOWITZ, ROBINSON, ROSENTHAL, MAYERSOHN, COLTON -- Multi-
Sponsored by -- M. of A. BOYLAND, BRENNAN, COOK, ENGLEBRIGHT, GALEF,
GANTT, GOTTFRIED, HEASTIE, JACOBS, MAISEL, McENENY, PHEFFER,
P. RIVERA, SCARBOROUGH, TOWNS -- read once and referred to the Commit-
tee on Codes -- committee discharged, bill amended, ordered reprinted
as amended and recommitted to said committee
AN ACT to amend the penal law, the general business law and the educa-
tion law, in relation to criminally negligent storage of a weapon and
weapons safety programs for children
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Short title; construction. 1. This act shall be known and
may be cited as the "children's weapon accident prevention act."
2. The provisions of this act shall not be construed to preempt or
supersede any local law the provisions of which are no less stringent or
restrictive than the provisions of this act.
S 2. Legislative findings and intent. The legislature finds that a
tragically large number of children have been accidentally killed or
seriously injured by negligently stored weapons; that placing weapons
within reach or easy access of children is irresponsible, encourages
such accidents, and should be prohibited, and that legislative action is
necessary to protect the safety of our children.
S 3. Section 265.00 of the penal law is amended by adding five new
subdivisions 24, 25, 26, 27 and 28 to read as follows:
24. "WEAPON" MEANS A "RIFLE", "SHOTGUN", OR "FIREARM" AS OTHERWISE
DEFINED IN SUBDIVISION THREE OF THIS SECTION.
25. "LOCKED BOX" MEANS A SAFE, CASE OR CONTAINER WHICH, WHEN LOCKED,
IS INCAPABLE OF BEING OPENED WITHOUT THE KEY, COMBINATION, OR OTHER
UNLOCKING MECHANISM AND IS RESISTANT TO TAMPERING BY AN UNAUTHORIZED
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03875-02-1
A. 3292--A 2
PERSON ATTEMPTING TO OBTAIN ACCESS TO AND POSSESSION OF THE WEAPON OR
AMMUNITION CONTAINED THEREIN. THE DIVISION OF STATE POLICE SHALL DEVELOP
AND PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC DEVICES
OR THE MINIMUM STANDARDS AND CRITERIA THEREFOR WHICH CONSTITUTE AN
EFFECTIVE LOCKED BOX.
26. "GUN LOCKING DEVICE" MEANS AN INTEGRATED DESIGN FEATURE OR AN
ATTACHABLE ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE IN
PREVENTING THE DISCHARGE OF A WEAPON BY A PERSON WHO DOES NOT HAVE
ACCESS TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE THE
DEVICE.
27. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE
WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF
AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE.
28. "LOADED SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION OR ANY
SHOTGUN WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A
QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN.
S 4. The penal law is amended by adding six new sections 265.45,
265.50, 265.55, 265.60, 265.65 and 265.70 to read as follows:
S 265.45 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE.
A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND
DEGREE WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS OR
HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED
SUCH WEAPON IN AN APPROPRIATE LOCKED BOX OR RENDERED IT INCAPABLE OF
BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP-
ON.
FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION.
S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE.
A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE FIRST
DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON
SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE
AND HAS BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO STORE A
WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS
ARTICLE WITHIN THE PRECEDING FIVE YEARS.
FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE IS A CLASS B
MISDEMEANOR.
S 265.55 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY.
A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN
HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE
SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE AND SUCH
WEAPON IS REMOVED FROM THE PREMISES OR DISCHARGED BY ANOTHER PERSON
UNDER THE AGE OF EIGHTEEN.
AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR.
S 265.60 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE.
1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
THE SECOND DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
WHICH CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON UNDER THE AGE OF
EIGHTEEN OR ANY OTHER PERSON.
2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS
DISCHARGE.
3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
A. 3292--A 3
(A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
(B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS
ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
ACCESS TO SUCH AMMUNITION;
(C) SUCH WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS
THE WEAPON FROM DISCHARGING;
(D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
(E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
(F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE IS A
CLASS E FELONY.
S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE.
1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
THE FIRST DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
WHICH CAUSES THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN OR ANY
OTHER PERSON.
2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS
DISCHARGE.
3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
(A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
(B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS
ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
ACCESS TO THE WEAPON;
(C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE
WEAPON FROM DISCHARGING;
(D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
(E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
(F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE IS A
CLASS D FELONY.
S 265.70 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST AND
SECOND DEGREE; APPLICATION.
IF A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF
THIS ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR WHO
DIES AS THE RESULT OF SUCH VIOLATION, THE DISTRICT ATTORNEY SHALL
CONSIDER, AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON THE
PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF THIS
ARTICLE WHEN DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON FOR SUCH
CRIME.
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S 5. The section heading and subdivision 2 of section 396-ee of the
general business law, as added by chapter 189 of the laws of 2000, are
amended to read as follows:
Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
(2) Every person, firm or corporation engaged in the retail business
of selling rifles, shotguns or firearms, as such terms are defined in
section 265.00 of the penal law, shall, in the place where such rifles,
shotguns or firearms are displayed or transferred to the purchaser, post
a notice conspicuously stating in bold print that: "The use of a GUN
locking device or [safety lock] A LOCKED BOX is only one aspect of
responsible firearm storage. For increased safety firearms should be
stored unloaded and locked in a location that is both separate from
their ammunition and inaccessible to children and any other unauthorized
person. LEAVING RIFLES, SHOTGUNS, AND FIREARMS ACCESSIBLE TO A PERSON
UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE."
S 6. Section 305 of the education law is amended by adding a new
subdivision 42 to read as follows:
42. THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF CRIMI-
NAL JUSTICE SERVICES DEVELOP A WEAPONS SAFETY PROGRAM DESIGNED TO
PROTECT CHILDREN FROM THE RISK OF GUN-RELATED DEATH AND INJURY. SUCH
PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE-
TY PROCEDURE WHEN THEY ARE EXPOSED TO A GUN, SHALL SPECIFICALLY WARN
CHILDREN THAT CONTACT WITH GUNS CAN RESULT IN SERIOUS INJURY OR DEATH
AND SHALL HAVE BEEN PROVEN TO BE EFFECTIVE TO PREVENT INJURY THROUGH
FORMAL EVALUATION BY OBJECTIVE PUBLIC HEALTH AND EDUCATION PROFES-
SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE
DISCRETION OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF TRUSTEES,
WHICHEVER IS APPLICABLE. THE COMMISSIONER SHALL SUBMIT AN EVALUATION
REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE
TEMPORARY PRESIDENT OF THE SENATE, THE CHAIR OF THE ASSEMBLY CODES
COMMITTEE AND THE CHAIR OF THE SENATE CODES COMMITTEE NO LATER THAN
JANUARY FIRST, TWO THOUSAND FOURTEEN.
S 7. If any word, phrase, clause, sentence, paragraph, section, or
part of this act shall be adjudged by any court of competent jurisdic-
tion to be invalid, such judgment shall not affect, impair, or invali-
date the remainder thereof, but shall be confined in its operation to
the words, phrase, clause, sentence, paragraph, section, or part thereof
directly involved in the controversy in which such judgment shall have
been rendered, provided such judgment does not alter the intent of this
legislation.
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, provided, however,
that sections three and four of this act shall take effect May 1, 2013;
provided, further, that section five of this act shall take effect March
1, 2013 except that any rule or regulation necessary for the timely
implementation of section five of this act may be promulgated on or
before such date.