Assembly Bill A10182

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

                                  10182

                          I N  A S S E M B L Y

                              May 10, 2012
                               ___________

Introduced by M. of A. LENTOL -- read once and referred to the Committee
  on Codes

AN  ACT to amend the penal law, in relation to criminal sale, possession
  and use of firearms

  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 265.01 of the penal law,
as added by chapter 1041 of the laws of 1974,  is  amended  to  read  as
follows:
  Criminal  possession  of  a  weapon  in the fourth degree is a class A
misdemeanor; EXCEPT THAT IF SUCH WEAPON IS A FIREARM THEN  SUCH  OFFENSE
SHALL BE A CLASS E FELONY.
  S  2.  The  closing  paragraph  of section 265.02 of the penal law, as
amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
follows:
  Criminal possession of a weapon in the third degree is a class D felo-
ny; EXCEPT THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE SHALL BE A
CLASS C FELONY.
  S  3.  The  closing  paragraph  of section 265.03 of the penal law, as
amended by chapter 742 of the laws  of  2006,  is  amended  to  read  as
follows:
  Criminal  possession of a weapon in the second degree is a class [C] B
felony.
  S 4. The closing paragraph of section 265.04  of  the  penal  law,  as
amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
follows:
  Criminal possession of a weapon in the first degree is a class B felo-
ny; EXCEPT THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE SHALL BE A
CLASS A FELONY.
  S 5. The closing paragraph of section 265.08  of  the  penal  law,  as
added by chapter 233 of the laws of 1980, is amended to read as follows:
  Criminal  use of a firearm in the second degree is a class [C] B felo-
ny.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD13452-02-2
              

A. 10182                            2

  S 6. The closing paragraph of 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:
  Criminal use of a firearm in the first degree is a class [B] A felony.
  S 7. Section 265.10 of the penal law, as amended by chapter 189 of the
laws of 2000, subdivisions 1 and 2 as amended by chapter 257 of the laws
of 2008, is amended to read as follows:
S 265.10 Manufacture,  transport,  disposition and defacement of weapons
           and dangerous instruments and appliances.
  1. Any person who  manufactures  or  causes  to  be  manufactured  any
machine-gun, assault weapon, large capacity ammunition feeding device or
disguised gun is guilty of a class [D] C felony. Any person who manufac-
tures or causes to be manufactured any switchblade knife, gravity knife,
pilum  ballistic knife, metal knuckle knife, billy, blackjack, bludgeon,
plastic knuckles, metal knuckles, Kung Fu star,  chuka  stick,  sandbag,
sandclub or slungshot is guilty of a class A misdemeanor.
  2. Any person who transports or ships any machine-gun, firearm silenc-
er,  assault  weapon  or  large  capacity  ammunition  feeding device or
disguised gun, or who transports or ships as merchandise  five  or  more
firearms,  is  guilty of a class [D] C felony. Any person who transports
or ships as merchandise any firearm, other than an  assault  weapon,  IS
GUILTY  OF  A  CLASS  E  FELONY,  ANY  PERSON WHO TRANSPORTS OR SHIPS AS
MERCHANDISE ANY switchblade knife, gravity knife, pilum ballistic knife,
billy, blackjack, bludgeon, plastic knuckles, metal  knuckles,  Kung  Fu
star, chuka stick, sandbag or slungshot is guilty of a class A misdemea-
nor.
  3.  Any  person who disposes of any machine-gun, assault weapon, large
capacity ammunition feeding device or firearm silencer is  guilty  of  a
class  [D]  C  felony. Any person who knowingly buys, receives, disposes
of, or conceals a machine-gun, firearm, large capacity ammunition  feed-
ing  device,  rifle or shotgun which has been defaced for the purpose of
concealment or prevention of the detection of a crime or misrepresenting
the identity of such machine-gun,  firearm,  large  capacity  ammunition
feeding device, rifle or shotgun is guilty of a class [D] C felony.
  4.  Any  person  who  disposes  of  any of the weapons, instruments or
appliances specified in subdivision one  of  section  265.01,  except  a
firearm, is guilty of a class A misdemeanor, and he is guilty of a class
D felony if he has previously been convicted of any crime.
  5.  Any person who disposes of any of the weapons, instruments, appli-
ances or substances specified in section  265.05  to  any  other  person
under the age of sixteen years is guilty of a class A misdemeanor.
  6.  Any  person  who  wilfully defaces any machine-gun, large capacity
ammunition feeding device or firearm is guilty of a class [D] C felony.
  7. Any person, other than a wholesale dealer, or gunsmith or dealer in
firearms  duly  licensed  pursuant  to  section  400.00,   lawfully   in
possession  of a firearm, who disposes of the same without first notify-
ing in writing the licensing officer in the city of New York  and  coun-
ties  of  Nassau  and  Suffolk  and elsewhere in the state the executive
department, division of state police, Albany, is guilty of  a  class  [A
misdemeanor] E FELONY.
  S  8.  The  closing  paragraph  of section 265.11 of the penal law, as
amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
follows:
  Criminal  sale of a firearm in the third degree is a class [D] C felo-
ny.

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  S 9. The closing paragraph of section 265.12  of  the  penal  law,  as
amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
follows:
  Criminal sale of a firearm in the second degree is a class [C] B felo-
ny.
  S  10.  The  closing  paragraph of section 265.13 of the penal law, as
amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
follows:
  Criminal  sale of a firearm in the first degree is a class [B] A felo-
ny.
  S 11. The closing paragraph of section 265.14 of  the  penal  law,  as
amended  by  chapter  654  of  the  laws  of 1998, is amended to read as
follows:
  Criminal sale of a firearm with the aid of a minor is a  class  [C]  B
felony.
  S  12.  The  closing  paragraph of section 265.16 of the penal law, as
amended by chapter 654 of the laws  of  1998,  is  amended  to  read  as
follows:
  Criminal sale of a firearm to a minor is a class [C] B felony.
  S  13.  The  closing  paragraph of section 265.17 of the penal law, as
added by chapter 189 of the laws of 2000, is amended to read as follows:
  Criminal purchase of a weapon is a class [A misdemeanor] E FELONY.
  S 14. Section 265.35 of the penal law, subdivisions  1,  2  and  3  as
renumbered  by  chapter  1041 of the laws of 1974, is amended to read as
follows:
S 265.35 Prohibited use of weapons.
  1. Any person hunting with a dangerous weapon  in  any  county  wholly
embraced  within the territorial limits of a city is guilty of a class A
misdemeanor. WHERE SUCH DANGEROUS WEAPON IS A  FIREARM  SUCH  PERSON  IS
GUILTY OF A CLASS E FELONY.
  2.  Any  person  who wilfully discharges a loaded firearm or any other
gun, the propelling force of which is gunpowder, at  an  aircraft  while
such  aircraft  is  in motion in the air or in motion or stationary upon
the ground, or at any railway or street railroad train as defined by the
public service law, or at a locomotive, car, bus or vehicle standing  or
moving  upon  such  railway,  railroad or public highway, is guilty of a
class [D] C felony if thereby the safety of any  person  is  endangered,
and in every other case, of a class [E] D felony.
  3.  Any person who, otherwise than in self defense or in the discharge
of official duty, (a) wilfully discharges any species of firearms,  air-
gun  or  other  weapon,  or throws any other deadly missile, either in a
public place, or in any place where there is any person to be endangered
thereby, or, in Putnam county, within one-quarter mile of  any  occupied
school  building  other  than  under  supervised instruction by properly
authorized instructors although no injury  to  any  person  ensues;  (b)
intentionally,  without  malice, points or aims any firearm or any other
gun, the propelling force of which is gunpowder, at or toward any  other
person;  (c) discharges, without injury to any other person, firearms or
any other guns, the propelling force of which is gunpowder, while inten-
tionally without malice, aimed at or toward any person; or (d) maims  or
injures  any  other  person by the discharge of any firearm or any other
gun, the propelling force of which is gunpowder, pointed or aimed inten-
tionally, but without malice, at any such person, is guilty of  a  class
[A misdemeanor] E FELONY.
  S  15.  Subdivision 1 of section 70.02 of the penal law, as separately
amended by chapters 764 and 765 of the laws of 2005,  paragraph  (a)  as

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amended  by chapter 320 of the laws of 2006, paragraph (b) as amended by
chapter 148 of the laws of 2011, paragraph (c) as amended by chapter 405
of the laws of 2010 and paragraph (d) as amended by  chapter  7  of  the
laws of 2007, is amended to read as follows:
  1. Definition of a violent felony offense. A violent felony offense is
A  CLASS  A  VIOLENT FELONY OFFENSE, a class B violent felony offense, a
class C violent felony offense, a class D violent felony offense,  or  a
class E violent felony offense, defined as follows:
  (a)  CLASS  A VIOLENT FELONY OFFENSES: CRIMINAL POSSESSION OF A WEAPON
IN THE FIRST DEGREE AS DEFINED IN SECTION 265.04 WHERE THE WEAPON  IS  A
FIREARM,  CRIMINAL  USE  OF  A FIREARM IN THE FIRST DEGREE AS DEFINED IN
SECTION 265.09, AND CRIMINAL SALE OF A FIREARM IN THE  FIRST  DEGREE  AS
DEFINED IN SECTION 265.13.
  (B)  Class  B  violent felony offenses: an attempt to commit the class
A-I felonies of murder in  the  second  degree  as  defined  in  section
125.25, kidnapping in the first degree as defined in section 135.25, and
arson  in the first degree as defined in section 150.20; manslaughter in
the first degree as defined in section 125.20,  aggravated  manslaughter
in  the  first  degree  as  defined in section 125.22, rape in the first
degree as defined in section 130.35, criminal sexual act  in  the  first
degree  as  defined  in  section  130.50, aggravated sexual abuse in the
first degree as defined in section  130.70,  course  of  sexual  conduct
against  a  child  in  the  first  degree  as defined in section 130.75;
assault in the first degree as defined in section 120.10, kidnapping  in
the  second  degree  as defined in section 135.20, burglary in the first
degree as defined in section 140.30,  arson  in  the  second  degree  as
defined  in  section  150.15,  robbery in the first degree as defined in
section 160.15, incest in the first degree as defined in section 255.27,
criminal possession of a weapon  in  the  first  degree  as  defined  in
section  265.04  WHERE  THE  WEAPON IS NOT A FIREARM, [criminal use of a
firearm in the first degree as defined in section 265.09, criminal  sale
of a firearm in the first degree as defined in section 265.13,] 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 265.14, aggravated assault upon a police officer or
a peace officer as defined in section 120.11, gang assault in the  first
degree as defined in section 120.07, intimidating a victim or witness in
the  first degree as defined in section 215.17, hindering prosecution of
terrorism in the first degree as defined  in  section  490.35,  criminal
possession  of  a  chemical  weapon  or  biological weapon in the second
degree as defined in section 490.40, and  criminal  use  of  a  chemical
weapon  or  biological  weapon in the third degree as defined in section
490.47.
  [(b)] (C) Class C violent felony offenses: an attempt to commit any of
the class B felonies set forth in paragraph [(a)] (B) of  this  subdivi-
sion;  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,
assault  on  a  judge  as defined in section 120.09, gang assault in the
second degree as defined in section 120.06, strangulation in  the  first
degree  as  defined  in section 121.13, burglary in the second degree as
defined in section 140.25, robbery in the second degree  as  defined  in

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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,]  CRIMINAL
POSSESSION  OF  A  WEAPON  IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION
FIVE, SIX, SEVEN OR EIGHT OF  SECTION  265.02  WHERE  THE  WEAPON  IS  A
FIREARM,  CRIMINAL  SALE  OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN
SECTION 265.11, 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 biological weapon in the
third degree as defined in section 490.37.
  [(c)] (D) Class D violent felony offenses: an attempt to commit any of
the class C felonies set forth in paragraph [(b)] (C); 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, strangulation in the second degree as
defined in section 121.12, 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  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,] AN ATTEMPT TO COMMIT ANY  OF
THE  FELONIES  OF  CRIMINAL POSSESSION IN THE THIRD DEGREE AS DEFINED IN
SUBDIVISION FIVE, SIX, SEVEN OR EIGHT OF  SECTION  265.02  AS  A  LESSER
INCLUDED  OFFENSE  OF  THAT  SECTION AS DEFINED IN SECTION 220.20 OF THE
CRIMINAL PROCEDURE LAW, 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.
  [(d)]  (E)  Class E violent felony offenses: [an attempt to commit any
of the felonies of criminal possession of a weapon in the  third  degree
as defined in subdivision five, six, seven or eight of section 265.02 as
a  lesser  included offense of that section as defined in section 220.20
of the criminal procedure law,] persistent sexual abuse  as  defined  in
section  130.53, aggravated sexual abuse in the fourth degree as defined
in section 130.65-a, falsely reporting an incident in the second  degree
as  defined  in  section  240.55  and  placing a false bomb or hazardous
substance in the second degree as defined in section 240.61.
  S 16. 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:
  3.  Term of sentence. The term of a determinate sentence for a violent
felony offense must be fixed by the court as follows:

A. 10182                            6

  (a) FOR A CLASS A FELONY, THE TERM MUST BE AT LEAST TEN YEARS AND MUST
NOT EXCEED TWENTY-FIVE YEARS;
  (B)  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;
  [(b)] (C) For a class C felony, the term must be at  least  three  and
one-half  years  and  must  not exceed fifteen years, provided, however,
that the term must be: (i) at least seven  years  and  must  not  exceed
twenty  years  where  the  sentence  is  for  the  crime  of  aggravated
manslaughter in the second degree as defined in section 125.21  of  this
chapter;  (ii)  at  least  seven  years and must not exceed twenty years
where the sentence is for the crime of attempted aggravated assault upon
a police officer or peace officer as defined in section 120.11  of  this
chapter; and (iii) at least three and one-half years and must not exceed
twenty years where the sentence is for the crime of aggravated criminal-
ly negligent homicide as defined in section 125.11 of this chapter;
  [(c)]  (D)  For  a class D felony, the term must be at least two years
and must not exceed seven years, provided, however, that the  term  must
be at least two years and must not exceed eight years where the sentence
is  for  the  crime  of  menacing  a  police officer or peace officer as
defined in section 120.18 of this chapter; and
  [(d)] (E) For a class E felony, the term must  be  at  least  one  and
one-half years and must not exceed four years.
  S  17.  Paragraph  (c)  of subdivision 2 of section 70.02 of the penal
law, as amended by chapter 764 of the laws of 2005, is amended  to  read
as follows:
  (c)  Except  as  provided  in  subdivision  six  of section 60.05, the
sentence imposed upon a person who stands convicted of the class [D] (C)
violent felony offenses of criminal possession of a weapon in the  third
degree  as  defined in subdivision four, five, seven or eight of section
265.02, criminal sale of a firearm in the third  degree  as  defined  in
section  265.11  or  the  class E violent felonies of attempted criminal
possession of a weapon in the third degree  as  defined  in  subdivision
four,  five,  seven  or  eight of section 265.02 must be a sentence to a
determinate period of imprisonment, or, in the alternative,  a  definite
sentence  of  imprisonment for a period of no less than one year, except
that:
  (i) the court may impose any other sentence authorized by law  upon  a
person  who  has  not  been previously convicted in the five years imme-
diately preceding the commission of the offense for a class A  misdemea-
nor  defined  in  this chapter, 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 sentence would be unduly harsh
and that the alternative sentence would be consistent with public safety
and does not deprecate the seriousness of the crime; and
  (ii) the court may apply the provisions of paragraphs (b) and  (c)  of
subdivision  four of this section when imposing a sentence upon a person
who has previously been convicted of a class A  misdemeanor  defined  in
this  chapter  in the five years immediately preceding the commission of
the offense.

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  S 18. Paragraph (a) of subdivision 2 of section  70.02  of  the  penal
law,  as  amended by chapter 764 of the laws of 2005, is amended to read
as follows:
  (a)  Except  as  provided  in  subdivision  six  of section 60.05, the
sentence imposed upon a person who stands convicted of a class A,  B  or
class  C violent felony offense must be a determinate sentence of impri-
sonment which shall be in whole or half years. The term of such sentence
must be in accordance with the provisions of subdivision three  of  this
section.
  S  19.  Paragraph  (a)  of subdivision 2 of section 70.02 of the penal
law, as amended by chapter 233 of the laws of 1980, is amended  to  read
as follows:
  (a) The sentence imposed upon a person who stands convicted of a class
A, B or class C violent felony offense must be an indeterminate sentence
of  imprisonment.  Except  as  provided  in  subdivision five of section
60.05, the maximum term of such sentence must be in accordance with  the
provisions  of  subdivision three of this section and the minimum period
of imprisonment under such sentence must be in accordance with  subdivi-
sion four of this section.
  S  20.  This  act  shall  take  effect  immediately and shall apply to
offenses committed on and after such date; provided that the  amendments
to paragraph (a) of subdivision 2 of section 70.02 of the penal law made
by  section  eighteen of this act shall be subject to the expiration and
reversion of such paragraph  when  upon  such  date  the  provisions  of
section nineteen of this act shall take effect.