S T A T E O F N E W Y O R K
________________________________________________________________________
7545
2011-2012 Regular Sessions
I N A S S E M B L Y
May 10, 2011
___________
Introduced by M. of A. McKEVITT -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the penal law, in relation to increasing penalties for
criminal use of a firearm in the first degree when committing a drug
related felony offense
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 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 OR COMMITS
ANY DRUG RELATED FELONY OFFENSE AS DEFINED IN SECTIONS 220.31, 220.34,
220.39, 220.41, 220.43, 220.44 AND 220.48 OF THIS CHAPTER and he OR SHE
either:
(a) possesses a deadly weapon, if the weapon is a loaded OR UNLOADED
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. (A) 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] TEN years to
the minimum term of an indeterminate sentence imposed on the underlying
class B violent felony offense OR DRUG RELATED FELONY OFFENSE where the
person convicted of such crime displays a loaded OR UNLOADED weapon from
which a shot, readily capable of producing death or other serious injury
may be discharged OR DISPLAYS WHAT APPEARS TO BE A PISTOL, REVOLVER,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11088-01-1
A. 7545 2
RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM, 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]. THE ADDITIONAL SENTENCE SHALL BE IMPOSED BY THE
COURT REGARDLESS OF THE NATURE AND CIRCUMSTANCES OF THE CRIME AND TO THE
HISTORY AND CHARACTER OF THE DEFENDANT. THE DISTRICT ATTORNEY OF ANY
JURISDICTION SHALL BE PROHIBITED FROM DISMISSING THIS OFFENSE IN THE
COURSE OF A PLEA BARGAIN.
(B) Notwithstanding any other provision of law to the contrary, the
aggregate of the [five] TEN year consecutive term imposed pursuant to
this subdivision and the minimum term of the indeterminate sentence
imposed on the underlying class B violent felony OR DRUG RELATED FELONY
OFFENSE 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 conditional release during such term. This subdivision shall [not]
apply where the defendant's criminal liability for displaying a loaded
OR UNLOADED weapon from which a shot, readily capable of producing death
or other serious injury may be discharged, OR DISPLAYS WHAT APPEARS TO
BE A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM, in
furtherance of the commission of crime is based on the conduct of anoth-
er pursuant to section 20.00 of [the penal law] THIS CHAPTER.
S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.