senate Bill S2237D

2013-2014 Legislative Session

Creates the offense of criminal use of a firearm in connection with a crime; repealer

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 20, 2014 committed to rules
Mar 04, 2014 advanced to third reading
Mar 03, 2014 2nd report cal.
amended 2237d
Feb 27, 2014 1st report cal.210
Jan 08, 2014 referred to codes
Nov 25, 2013 print number 2237c
amend and recommit to rules
Jun 21, 2013 recommitted to rules
Apr 23, 2013 amended on third reading 2237b
Apr 22, 2013 ordered to third reading cal.387
reported and committed to rules
Feb 11, 2013 print number 2237a
amend and recommit to codes
Jan 15, 2013 referred to codes

Bill Amendments

Original
A
B
C
D (Active)
Original
A
B
C
D (Active)

Co-Sponsors

S2237 - Bill Details

Current Committee:
Senate Rules
Law Section:
Penal Law
Laws Affected:
Amd §§265.09 & 70.02, rpld §265.08, Pen L; amd §509-cc, V & T L; amd §410, Gen Bus L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1407B
2009-2010: S2110A

S2237 - Bill Texts

view summary

Relates to criminal use of a firearm in the first degree; provides that the firearm displayed need not be real for additional penalties to apply.

view sponsor memo
BILL NUMBER:S2237

TITLE OF BILL: 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 relating thereto

PURPOSE: The purpose of this bill is to provide stiffer sentences to
criminals who use firearms to commit felonies.

SUMMARY OF PROVISIONS:

Section one amends the definition of criminal use of a firearm in the
first degree to include displaying a firearm in the commission of any
felony as opposed to just class B violent felonies.

Section two repeals criminal use of a firearm in the second degree (a
class C felony), this effectively upgrades all instances of criminal
use of a firearm to class B violent felonies.

Section three is technical and updates the cross references in law.

EXISTING LAW: The sentencing provisions contained in Subdivision 2 of
Penal Law

Section 265.09 currently apply only where the defendant displays an
actual loaded weapon.

JUSTIFICATION: The use of firearms to commit violent crimes and
terrorize the general populace is barbaric and unacceptable in any
advanced civilization. However, citizens have a constitutionally
guaranteed right to keep and bear arms for their own purposes
including hunting, recreation, collecting, self defense, to protect
their families, to protect their homes or any other lawful purpose
that the individual citizen may desire. These rights have been
recently upheld in the Supreme Court cases of District of Columbia v.
Heller and McDonald v. Chicago.

Nonetheless, for a free society to flourish there has to be a
respected rule of law. Hence, it is essential that people who use
force to terrorize and prey upon others be punished to the fullest
extent of the law, and that the laws be strong enough to make use a
firearm in the commission of a crime unthinkable.

LEGISLATIVE HISTORY: S.1407B of 2012 - Passed Senate 03/21/12 S.2110
of 2010 - Referred to Codes

FISCAL IMPLICATIONS: None

LOCAL FISCAL IMPLICATIONS:

EFFECTIVE DATE: This act shall take effect on the first of November
after it shall have become law.


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

                                  2237

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

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 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] 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
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,] WHAT APPEARS
TO  BE  A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM
in furtherance of the commission of such crime, provided, however,  that

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03184-01-3

S. 2237                             2

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 depre-
cate the seriousness of the crime.  Notwithstanding any other  provision
of  law to the contrary, the aggregate of the five year consecutive term
imposed pursuant to this subdivision and the minimum term of the  [inde-
terminate]  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 aggre-
gate  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 weapon
from  which  a shot, readily capable of producing death or other serious
injury may be discharged,] 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 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  amended  by  chapter  148 of the laws of 2011, 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) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated 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 section 160.10, crim-
inal 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 chemical weapon or biolog-
ical 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 400 of the laws of 2011, 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,  121.12,  121.13,
125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,  140.17,
140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,  230.00,
230.05,  230.06, 230.20, 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,

S. 2237                             3

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.

Co-Sponsors

S2237A - Bill Details

Current Committee:
Senate Rules
Law Section:
Penal Law
Laws Affected:
Amd §§265.09 & 70.02, rpld §265.08, Pen L; amd §509-cc, V & T L; amd §410, Gen Bus L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1407B
2009-2010: S2110A

S2237A - Bill Texts

view summary

Relates to criminal use of a firearm in the first degree; provides that the firearm displayed need not be real for additional penalties to apply.

view sponsor memo
BILL NUMBER:S2237A

TITLE OF BILL: 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 relating thereto

PURPOSE: The purpose of this bill is to provide stiffer sentences to
criminals who use firearms to commit felonies.

SUMMARY OF PROVISIONS: The amendment to this bill makes changes to
conform the bill to the New York SAFE Act.

Section one amends section 265.09 of the Penal Law to provide that a
person is guilty of the crime of criminal use of a firearm in the first
degree when he or she displays what appears to be a firearm; it elimi-
nates language providing that a person is so guilty if he or she alter-
natively displays what appears to be a firearm, or possesses a deadly
weapon. This section also makes conforming amendments to the sentencing
provisions of Penal Law section 265.09.

Section two repeals Penal Law section 265.08, criminal use of a firearm
in the second degree, which effectively upgrades all instances of crimi-
nal use of a firearm to class B violent felonies,

Section three through five are technical and update certain cross-refer-
ences in law.

Section six establishes the effective date.

EXISTING LAW: The sentencing provisions contained in Penal Law section
265.09(2) currently apply only where the defendant displays an actual
loaded weapon in the commission of the offense.

JUSTIFICATION: The enhanced penalties contained in Penal Law section
265.09, relating to criminal use of a firearm in the first degree, only
apply where the assailant actually carries a loaded weapon capable of
being fired. Perpetrators who only display what appears to be a firearm
are guilty of criminal use of a firearm in the first degree, but are not
subject to this increased penalty. There is no basis for this
distinction. Those who use actual firearm, and those who carry fake or
unloaded firearms, carry them for the same primary purpose: to intim-
idate their victims into submission. Victims of these crimes cannot be
expected to distinguish between real and fake or unloaded firearms when
they perceive themselves to be at gunpoint, and nor can the police, who
must act as if a weapon carried by an assailant is real. The public
safety is jeopardized regardless of whether a firearm used to commit a
felony is fake, real, or unloaded. Accordingly, the law should treat
these acts with equal severity, and criminals should not be allowed to
avoid the enhanced sentencing provisions contained in Penal Law section

265.09 merely because the gun he or she used was not, on hindsight,
capable of being fired.

LEGISLATIVE HISTORY:

S.1407B of 2012 - Passed Senate 03/21/12 S.2110 of 2010 - Referred to
Codes

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first of November
after it shall have become law, subject to provisions.

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

                                 2237--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced  by  Sens.  GOLDEN, AVELLA -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes --  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 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] 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
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,] WHAT APPEARS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03184-02-3

S. 2237--A                          2

TO  BE  A PISTOL, REVOLVER, 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 depre-
cate  the seriousness of the crime.  Notwithstanding any other provision
of law to the contrary, the aggregate of the five year consecutive  term
imposed  pursuant to this subdivision and the minimum term of the [inde-
terminate] 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 aggre-
gate 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 weapon
from which a shot, readily capable of producing death or  other  serious
injury may be discharged,] 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 another pursuant to section 20.00 of
[the penal law] THIS CHAPTER.
  S 1-a. Subdivision 2 of section 265.09 of the penal law, as amended by
chapter 1 of the laws of 2013, is amended to read as follows:
  (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] A consecutive sentence of five years to the
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,] WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,  SHOT-
GUN,  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  seriousness  of  the  crime.
Notwithstanding  any  other provision of law to the contrary, the aggre-
gate of the five year consecutive term imposed pursuant to this subdivi-
sion 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 conditional release during such  term.
This  subdivision shall not apply where the defendant's criminal liabil-
ity for displaying [a loaded weapon from which a shot,  readily  capable
of  producing  death  or  other  serious injury may be discharged,] 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 another pursuant to section 20.00 of 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 amended by chapter 148 of the laws of 2011, is  amended  to  read  as
follows:

S. 2237--A                          3

  (b)  Class  C violent felony offenses: an attempt to commit any of the
class B felonies set forth in paragraph (a) of this subdivision;  aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated  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 section 160.10, crim-
inal 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 chemical weapon or biolog-
ical weapon in the third degree as defined in section 490.37.
  S 3-a. Paragraph (b) of subdivision 1 of section 70.02  of  the  penal
law,  as amended by chapter 1 of the laws of 2013, 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) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated 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 section 160.10, crim-
inal 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, aggravated criminal possession of  a
weapon as defined in section 265.19, 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 biolog-
ical 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 400 of the laws of 2011, 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,  121.12,  121.13,
125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,  140.17,
140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,  230.00,
230.05,  230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00,

S. 2237--A                          4

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] FIREARM pursuant to sections 265.11 and  265.12;  and
sex  offenses pursuant to article 130 of the penal law. Provided, howev-
er, 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;  provided,  however,
that:
  (a) if subdivision 2 of section 265.09 of the penal law shall not have
taken  effect  on  or  before such date, section one-a of this act shall
take effect on the same date as such subdivision of the penal law pursu-
ant to section 42 of chapter 1 of the laws of 2013, takes effect; and
  (b) if paragraph (b) of subdivision 1 of section 70.02  of  the  penal
law  shall not have taken effect on or before such date, section three-a
of this act shall take effect on the same date as such paragraph of  the
penal law pursuant to section 27 of chapter 1 of the laws of 2013, takes
effect.

Co-Sponsors

S2237B - Bill Details

Current Committee:
Senate Rules
Law Section:
Penal Law
Laws Affected:
Amd §§265.09 & 70.02, rpld §265.08, Pen L; amd §509-cc, V & T L; amd §410, Gen Bus L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1407B
2009-2010: S2110A

S2237B - Bill Texts

view summary

Relates to criminal use of a firearm in the first degree; provides that the firearm displayed need not be real for additional penalties to apply.

view sponsor memo
BILL NUMBER:S2237B

TITLE OF BILL: 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 relating thereto

PURPOSE: The purpose of this bill is to provide stiffer sentences to
criminals who use firearms to commit felonies.

SUMMARY OF PROVISIONS: The amendment to this bill makes changes to
conform the bill to the New York SAFE Act.

Section one amends section 265.09 of the Penal Law to provide that a
person is guilty of the crime of criminal use of a firearm in the
first degree when he or she displays what appears to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm; it eliminates
language Providing that a Person is so Guilty if he or she
alternatively displays what appears to be a firearm, or possesses a
deadly weapon. This section also makes conforming amendments to the
sentencing provisions of Penal Law section 265.09.

Section two repeals Penal Law section 265.08, criminal use of a
firearm in the second degree, which effectively upgrades all instances
of criminal use of a firearm to class 3 violent felonies,

Section three through five are technical and update certain
cross-references in law.

Section six establishes the effective date.

EXISTING LAW: The sentencing provisions contained in Penal Law section
265.09(2) currently apply only where the defendant displays an actual
loaded weapon in the commission of the offense.

JUSTIFICATION: The enhanced penalties contained in Penal Law section
265.09, relating to criminal use of a firearm in the first degree,
only apply where the assailant actually carries a loaded weapon
capable of being fired. Perpetrators who only display what appears to
be a firearm are guilty of criminal use of a firearm in the first
degree, but are not subject to this increased penalty. There is no
basis for this distinction. Those who use actual firearm, and those
who carry fake or unloaded firearms, carry them for the same primary
purpose: to intimidate their victims into submission. Victims of-these
crimes cannot be expected to distinguish between real and fake or
unloaded firearms when they Perceive themselves to be at gunpoint, and
nor can the police, who must act as if a weapon carried by an
assailant is real. The public safety is jeopardized regardless of
whether a firearm used to commit a felony is fake, real, or unloaded.
Accordingly, the law should treat these acts with equal severity, and
criminals should not be allowed to avoid the enhanced sentencing
provisions contained in Penal Law section 265.09 merely because the
gun he or she used was not, on hindsight, capable of being fired.

LEGISLATIVE HISTORY: S.14079 of 2012 - Passed Senate 03/21/12 S.2110
of 2010 - Referred to Codes


FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: This act shall take effect on the first of November
after it shall have become law, subject to provisions.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2237--B
    Cal. No. 387

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced  by  Sens.  GOLDEN, AVELLA -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee -- reported favorably from said committee and
  committed to the Committee on Rules -- reported  favorably  from  said
  committee  to  third reading, amended and ordered reprinted, retaining
  its place in the order of third reading

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, subdivision 2 as amended by chapter 1 of the laws
of 2013, 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]  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
shall impose [an additional] A consecutive sentence of five years to the

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03184-03-3

S. 2237--B                          2

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,] WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOT-
GUN, 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 seriousness of the crime.
Notwithstanding any other provision of law to the contrary,  the  aggre-
gate of the five year consecutive term imposed pursuant to this subdivi-
sion 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 conditional release during such term.
This subdivision shall not apply where the defendant's criminal  liabil-
ity  for  displaying [a loaded weapon from which a shot, readily capable
of producing death or other serious  injury  may  be  discharged,]  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 another pursuant to section 20.00 of 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  amended  by  chapter  1  of  the laws of 2013, 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) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated 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 section 160.10, crim-
inal 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, aggravated criminal possession of  a
weapon as defined in section 265.19, 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 biolog-
ical 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 400 of the laws of 2011, 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,

S. 2237--B                          3

120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,  140.17,
140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
220.16,  220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00,
230.05, 230.06, 230.20, 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] FIREARM pursuant to sections 265.11 and 265.12; and
sex offenses pursuant to article 130 of the penal law. Provided,  howev-
er,  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

Co-Sponsors

S2237C - Bill Details

Current Committee:
Senate Rules
Law Section:
Penal Law
Laws Affected:
Amd §§265.09 & 70.02, rpld §265.08, Pen L; amd §509-cc, V & T L; amd §410, Gen Bus L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1407B
2009-2010: S2110A

S2237C - Bill Texts

view summary

Relates to criminal use of a firearm in the first degree; provides that the firearm displayed need not be real for additional penalties to apply.

view sponsor memo
BILL NUMBER:S2237C

TITLE OF BILL: 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 relating thereto

PURPOSE:

The purpose of this bill is to provide stiffer sentences to criminals
who use firearms to commit felonies.

SUMMARY OF PROVISIONS:

The amendment to this bill makes changes to conform the bill to the
New York SAFE Act.

Section one amends section 265.09 of the Penal Law to provide that a
person is guilty of the crime of criminal use of a firearm in the
first degree when he or she displays what appears to be a Pistol,
revolver, rifle, shotgun, machine gun or other firearm; it eliminates
language Providing that a Person is so Guilty if he or she
alternatively displays whet appears to be a firearm, or possesses a
deadly weapon. This section also makes conforming amendments to the
sentencing provisions of Penal Law section 265.09.

Section two repeals Penal Law section 265.08, criminal use of a
firearm in the second degree, which effectively upgrades all instances
of criminal use of a firearm to class 3 violent felonies,

Section three through five are technical and update certain
cross-references in law.

Section six Provides that this law shall be effective on the first of
November after it has become law.

Existing Law:

The sentencing provisions contained in Penal Law section 265.09(2)
currently apply only where the defendant displays an actual loaded
weapon in the commission of the offense.

JUSTIFICATION:

The enhanced penalties contained in Penal Law section 265.09, relating
to criminal use of a firearm in the first degree, only apply where the
assailant actually carries a loaded weapon capable of being fired.
Perpetrators who only display what appears to be a firearm are guilty
of criminal use of a firearm in the first degree, but are not subject
to this increased penalty. There is no basis for this distinction.
Those who use actual firearm, and those who carry fake or unloaded
firearms, carry them for the same primary purpose: to intimidate their
victims into submission. Victims of these crimes cannot be expected to
distinguish between real and fake or unloaded firearms when they
Perceive themselves to be at gunpoint, and nor can the police, who
must act as if a weapon carried by an assailant is real. The public
safety is jeopardized regardless of whether a firearm used to commit a


felony is fake, real, or unloaded. Accordingly, the law should treat
these acts with equal severity, and criminals should not be allowed to
avoid the enhanced sentencing provisions contained in Penal Law
section 265.09 merely because the gun he or she used was not, on
hindsight, capable of being fired.

LEGISLATIVE HISTORY:

S2237B of 2013 - On Calendar
S.1407B of 2012 - Passed Senate 03/21/12
S.2110 of 2010 - Referred to Codes

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

First of November after it shall become law

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 2237--C
    Cal. No. 387

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced  by  Sens.  GOLDEN, AVELLA -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee -- reported favorably from said committee and
  committed to the Committee on Rules -- reported  favorably  from  said
  committee  to  third reading, amended and ordered reprinted, retaining
  its place in the order of third reading -- committee discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee

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, subdivision 2 as amended by chapter 1 of the laws
of 2013, 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]  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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03184-05-3

S. 2237--C                          2

first degree as defined in subdivision one of this  section,  the  court
shall  impose  an  additional  consecutive sentence of five years to the
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[,] OR WHAT APPEARS TO BE A  PISTOL,  REVOLVER,  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 circum-
stances 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 seriousness of the
crime.  Notwithstanding any other provision of law to the contrary,  the
aggregate  of  the  five  year consecutive term imposed pursuant 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 conditional 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[,] OR 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 another pursuant to  section  20.00  of  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  amended  by  chapter  1  of  the laws of 2013, 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) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated 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 section 160.10, crim-
inal 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, aggravated criminal possession of  a
weapon as defined in section 265.19, 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 biolog-
ical 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 400 of the laws of 2011, is
amended to read as follows:

S. 2237--C                          3

  (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,  121.12,  121.13,
125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,  140.17,
140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,  230.00,
230.05,  230.06, 230.20, 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] FIREARM pursuant to sections 265.11 and  265.12;  and
sex  offenses pursuant to article 130 of the penal law. Provided, howev-
er, 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.

Co-Sponsors

S2237D (ACTIVE) - Bill Details

Current Committee:
Senate Rules
Law Section:
Penal Law
Laws Affected:
Amd §§265.09 & 70.02, rpld §265.08, Pen L; amd §509-cc, V & T L; amd §410, Gen Bus L
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1407B
2009-2010: S2110A

S2237D (ACTIVE) - Bill Texts

view summary

Relates to criminal use of a firearm in the first degree; provides that the firearm displayed need not be real for additional penalties to apply.

view sponsor memo
BILL NUMBER:S2237D

TITLE OF BILL: 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 relating thereto

PURPOSE: The purpose of this bill is to provide stiffer sentences to
criminals who use firearms to commit felonies.

SUMMARY OF PROVISIONS: The amendment to this bill makes changes to
conform the bill to the New York SAFE Act.

Section one amends section 265.09 of the Penal Law to include that a
person is guilty of the crime of criminal use of a firearm in the
first degree when he or she displays what appears to be a Pistol,
revolver, rifle, shotgun, machine gun or other firearm and provides
sentencing guidelines for such crime. This section also makes
conforming amendments to the sentencing provisions of Penal Law
section 265.09.

Section two repeals Penal Law section 265.08, criminal use of a
firearm in the second degree, which effectively upgrades all instances
of criminal use of a firearm to class 3 violent felonies.

Section three through five are technical and update certain
cross-references in law.

Section six provides that this law shall be effective on the first of
November after it has become law.

EXISTING LAW: The sentencing provisions contained in Penal Law
section 265.09(2) currently apply only where the defendant displays an
actual loaded weapon in the commission of the offense.

JUSTIFICATION: The enhanced penalties contained in Penal Law section
265.09, relating to criminal use of a firearm in the first degree,
only apply where the assailant actually carries a loaded weapon
capable of being fired. Perpetrators who only display what appears to
be a firearm are guilty of criminal use of a firearm in the first
degree, but are not subject to this increased penalty. There is no
basis for this distinction. Those who use actual firearm, and those
who carry fake or unloaded firearms, carry them for the same primary
purpose: to intimidate their victims into submission. Victims of these
crimes cannot be expected to distinguish between real and fake or
unloaded firearms when they Perceive themselves to be at gunpoint, and
nor can the police, who must act as if a weapon carried by an
assailant is real. The public safety is jeopardized regardless of
whether a firearm used to commit a felony is fake, real, or unloaded.
Accordingly, the law should treat these acts with equal severity, and
criminals should not be allowed to avoid the enhanced sentencing
provisions contained in Penal Law section 265.09 merely because the
gun he or she used was not, on hindsight, capable of being fired.

LEGISLATIVE HISTORY: S2237B of 2013 - On Calendar S.1407B of 2012 -
Passed Senate 03/21/12 S.2110 of 2010 - Referred to Codes


FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: First-of November after it shall become law

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

                                 2237--D
    Cal. No. 210

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 15, 2013
                               ___________

Introduced  by  Sens.  GOLDEN, AVELLA -- read twice and ordered printed,
  and when printed to be committed to the Committee on Codes --  commit-
  tee  discharged, bill amended, ordered reprinted as amended and recom-
  mitted to said committee -- reported favorably from said committee and
  committed to the Committee on Rules -- reported  favorably  from  said
  committee  to  third reading, amended and ordered reprinted, retaining
  its place in the order of third reading -- committee discharged,  bill
  amended,  ordered reprinted as amended and recommitted to said commit-
  tee -- recommitted to the Committee on Codes in accordance with Senate
  Rule 6, sec. 8 -- reported favorably from said committee,  ordered  to
  first  report, amended on first report, ordered to a second report and
  ordered reprinted, retaining its place in the order of second report

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, subdivision 2 as amended by chapter 1 of the laws
of 2013, 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] 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03184-07-4

S. 2237--D                          2

  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
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[,] OR WHAT APPEARS TO BE A  PISTOL,  REVOLVER,  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 circum-
stances 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 seriousness of the
crime.  Notwithstanding any other provision of law to the contrary,  the
aggregate  of  the  five  year consecutive term imposed pursuant 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 conditional 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[,] OR 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 another pursuant to  section  20.00  of  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  amended  by  chapter  1  of  the laws of 2013, 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) of this subdivision; aggra-
vated criminally negligent homicide as defined in section 125.11, aggra-
vated 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 section 160.10, crim-
inal 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, aggravated criminal possession of  a
weapon as defined in section 265.19, 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 biolog-
ical weapon in the third degree as defined in section 490.37.

S. 2237--D                          3

  S 4. Paragraph (c) of subdivision 4 of section 509-cc of  the  vehicle
and  traffic  law,  as  amended  by  chapter 400 of the laws of 2011, 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,  121.12,  121.13,
125.40,  125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55, 140.17,
140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06,  220.09,
220.16,  220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00,
230.05, 230.06, 230.20, 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] FIREARM pursuant to sections 265.11 and 265.12; and
sex offenses pursuant to article 130 of the penal law. Provided,  howev-
er,  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.

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