senate Bill S252

2013-2014 Legislative Session

Relates to the criminal possession of a weapon; repealer

download bill text pdf

Sponsored By

Archive: Last Bill Status - In Committee


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

do you support this bill?

Actions

view actions (2)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 08, 2014 referred to codes
Jan 09, 2013 referred to codes

Co-Sponsors

S252 - Bill Details

See Assembly Version of this Bill:
A3899
Current Committee:
Senate Codes
Law Section:
Penal Law
Laws Affected:
Rpld §265.01 subs 7 & 8, amd Pen L, generally; add §837-s, Exec L; amd §1349, CPLR
Versions Introduced in Previous Legislative Sessions:
2011-2012: S1714, A2898
2009-2010: S5561, A9141

S252 - Bill Texts

view summary

Relates to the criminal possession of a weapon and possession of a firearm while under the influence of alcohol or drugs; increases certain penalties.

view sponsor memo
BILL NUMBER:S252

TITLE OF BILL:
An act
to amend the penal law, in relation to criminal possession of a weapon;
to amend the penal law and the executive law, in relation to the
possession of a firearm while under the influence of alcohol or drugs;
to amend the penal law, in relation to increasing penalties for the
criminal sale of firearms;
to amend the civil practice law and rules, in relation to forfeiture
money;
and to repeal certain provisions of the penal law relating thereto

PURPOSE OR GENERAL IDEA OF BILL:
This bill will increase the penalties
for explosive bullets and armor piercing ammunition. It will also
provide a procedure for suspending a firearms license for possession
of a firearm while in a public place while under the influence of
alcohol or drugs. This bill will additionally increase the penalty
for criminal sale of a firearm in the first and second degree to an A
felony and a B felony respectively. It will also increase penalties
for criminal sales of firearms. This legislation will also change the
formula for distribution of seized criminal proceeds from the current
75% to law enforcement to 65% to law enforcement and 10% to the
police athletic league of the claiming municipality. Increases the
penalty for criminal possession of a weapon in the 2nd degree to a
minimum 10-year sentence.

SUMMARY OF SPECIFIC PROVISIONS:
Repeals subdivisions 7 and 8 of
section 265.01 and adds two new subdivisions to section 2.65.02 to
include explosive bullets or armor piercing ammunition.

Section 5 adds a new subdivision 11-a to section 400.00 of the penal
law.

Paragraph (a) of subdivision 11-a provides that no licensee of
firearms shall possess any loaded t1rearm on his person in a public
place while such licensee is either under the influence of alcohol or
under the influence of a controlled substance. A person is considered
under the influence or alcohol or under the influence of a controlled
substance when the person has voluntarily consumed alcohol or
voluntarily used one or more controlled substances, or both, to the
extent that his ability to safely handle or use a loaded firearm has
been significantly diminished.

Paragraph (b) of subdivision 11-a deems suspended, pending a hearing,
the firearms license with respect to any firearm(s) which form the
basis of a charge of possessing a firearm while under the influence
of alcohol or drugs or a refusal to submit to a chemical test for the
purpose of determining the alcoholic and/or drug content of a
person's blood. Paragraph (b) authorizes the confiscation of such
firearm(s) by police pending the suspension hearing.

Paragraph (c) of subdivision 11-a provides that a person who holds a
license to carry or possess a firearm impliedly consents to a


chemical test of his breath, blood, mine or saliva to determine the
alcoholic and/or drug content of his blood where a police officer has
reasonable grounds to believe that the person possesses a loaded
firearm while under the influence of alcohol or drugs.

Paragraph (d) of subdivision 11-a sets forth the license suspension
hearing requirements Hearings are to be conducted within 7 days of
the alleged violation before the appropriate licensing officer, or,
if the hearing is not held within 7 days, the license of the person
must be reinstated and any lawfully possessed firearms and ammunition
confiscated by the police must be returned pending a hearing. If the
licensee is found to be in violation of possessing a firearm while
under the influence of alcohol or drugs, the licensing officer must
immediately suspend the person's license for a period not exceeding
one year and the person must surrender his license, any amendment
thereto, and any weapons held pursuant to such license. Persons whose
license is suspended must successfully complete, as a condition for
reinstatement of a firearms license, an alcohol and/or drug
rehabilitation program.

Paragraph (f) of subdivision 11-a contains evidentiary standards
regarding the use of blood-alcohol tests applicable in a suspension
hearing.

Paragraph (h) of subdivision 11-a provides for the light to appeal the
decision made at a hearing.

Paragraph (i) of subdivision 11-a authorizes a police officer to
temporarily detain a person whom such officer reasonably believes is
in violation of this section for the sole purpose of administering a
chemical test to determine whether the person is under the influence
of alcohol or drugs.

Section 5 Amends section 400.00 (15) of the penal law to clarify that
possession of a firearm while under the influence of alcohol or drugs
is not, in and of itself: a crime.

Section 6 adds a new section 837-m to the executive law to establish
the alcohol and drug rehabilitation program required of all persons
found to be under the influence of alcohol or drugs while in
possession of a loaded firearm, which program must be completed in
order to reinstate the person's firearms license.

Amends section 265.12 of the penal law to increase the penalty for
criminal sale of a firearm in . the 2nd degree to a class B felony
and increases the penalty for criminal sale of a firearm in the 1st
degree to a class A felony and increases the penalty for criminal sale
of a firearm in the 3rd degree to a class C felony.

Increases the penalties for all degrees of criminal sale of a firearm
to a minor.

Amends section 1349 of the civil practice law and rules to change the
formula for distribution of forfeiture monies to decrease the amount
to the law enforcement purposes subaccount from 75% to 65% and
requiring 10% of forfeiture monies to be disbursed to the police


athletic league of the claiming political subdivision or public
authority.

Amends section 70.02 to increase the minimum sentence for criminal
possession of a weapon in the second degree to ten years

JUSTIFICATION:
There were 5,750 violent crime incidents which involved
a firearm in 2006.
The New York State Police Gun Investigation Unit seized over 1,000
illegal firearms and made over 750 arrests in 2006 alone. In 2007,
there were 5,250 criminal incidents that involved the use of a
firearm outside New York City. Many of these murders and other
violent crimes were perpetrated by individuals using illegal guns.
Neighborhoods and communities across the State have been tragically
impacted by guns and gun violence. We must do everything in our power
to stop people from carrying and using illegal weapons. This
legislation will help to ensure that those who use and posses illegal
weapons will receive appropriate punishment A 10-year automatic
sanction will also serve as a deterrent to carrying illegal weapons.

Further, individuals who have been granted the privilege by the state
of obtaining a firearms license should not be permitted to abuse this
privilege by possessing a firearm while under the influence of
alcohol or drugs. Possessing a loaded firearm while intoxicated
possesses a serious threat to the citizens of this state. Enactment
of this legislation would decrease the possibility of an accidental
or intentional discharge of a firearm by a person whose judgment is
impaired by alcohol or drugs.

In addition, this legislation will allocate 10% of money seized
through criminal forfeiture to the local police athletic league of
the claiming jurisdiction. This will provide additional resources for
the police athletic leagues throughout the State of New York. These
PALs will have a positive impact on the lives of young people and
provide an alternative to guns, gangs and other negative influences
and behaviors.

This legislation will also increase the penalties for explosive
ammunition and armor piercing bullets. Section 265.01 currently
provides that possession of armor piercing ammunition is a class A
misdemeanor. The statute also indicates that to be charged with
illegal possession, the actor must intend to use the armor piercing
ammunition against another. The majority of those who lawfully wear
body armor in the State of New York are law enforcement personnel,
therefore those who intend to use such ammunition "against another"
are planning to shoot law police officers. A misdemeanor is simply an
inadequate sentence for such a grave offense.

PRIOR LEGISLATIVE HISTORY:
S.1714 of 2011
01/11/11 REFERRED TO CODES
01/04/12 REFERRED TO CODES

FISCAL IMPLICATIONS:
None to the State.


EFFECTIVE DATE:
This act shall take effect on the first of November
next succeeding the date on which it shall have become law.

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

                                   252

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                               (PREFILED)

                             January 9, 2013
                               ___________

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

AN ACT to amend the penal law, in relation to criminal possession  of  a
  weapon;  to  amend the penal law and the executive law, in relation to
  the possession of a firearm while under the influence  of  alcohol  or
  drugs; to amend the penal law, in relation to increasing penalties for
  the  criminal  sale  of  firearms; to amend the civil practice law and
  rules,  in  relation  to  forfeiture  money;  and  to  repeal  certain
  provisions of the penal law relating thereto

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

  Section 1. Subdivisions 7 and 8 of section 265.01 of the penal law are
REPEALED.
  S 2. Subdivision 8 of section 265.02 of the penal law, as  amended  by
chapter  764  of the laws of 2005, is amended and two new subdivisions 9
and 10 are added to read as follows:
  (8)  Such  person  possesses  a  large  capacity  ammunition   feeding
device[.]; OR
  (9)  SUCH  PERSON KNOWINGLY POSSESSES A BULLET CONTAINING AN EXPLOSIVE
SUBSTANCE DESIGNED TO DETONATE UPON IMPACT; OR
  (10) SUCH PERSON POSSESSES ANY ARMOR PIERCING AMMUNITION  WITH  INTENT
TO USE THE SAME UNLAWFULLY AGAINST ANOTHER.
  S  3.  Subdivision 1 of section 400.00 of the penal law, as amended by
chapter 189 of the laws of 2000, is amended to read as follows:
  1. Eligibility. No license shall be issued or renewed pursuant to this
section except by the licensing officer, and then  only  after  investi-
gation  and  finding  that  all statements in a proper application for a
license are true. No license shall be issued or renewed  except  for  an
applicant  (a) twenty-one years of age or older, provided, however, that
where such applicant has  been  honorably  discharged  from  the  United

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD02246-01-3

S. 252                              2

States  army,  navy,  marine  corps,  air  force  or coast guard, or the
national guard of the state of New York, no such age  restriction  shall
apply;  (b)  of  good  moral  character;  (c) who has not been convicted
anywhere of a felony or a serious offense; (d) who has stated whether he
or  she  has  ever  suffered  any mental illness or been confined to any
hospital or institution, public or private, for mental illness; (e)  who
has  not had a license revoked or who is not under a suspension or inel-
igibility  order  issued  pursuant  to  the  provisions  of  SUBDIVISION
ELEVEN-A  OF  THIS SECTION, section 530.14 of the criminal procedure law
or section eight hundred forty-two-a of the family court act; (f) in the
county of Westchester, who has successfully completed a firearms  safety
course  and  test  as evidenced by a certificate of completion issued in
his or her name and endorsed and affirmed under the penalties of perjury
by a duly authorized instructor, except that: (i) persons who are honor-
ably discharged from the United States army, navy, marine corps or coast
guard, or of the national guard of the state of New  York,  and  produce
evidence  of  official  qualification  in  firearms  during  the term of
service are not required to have completed those  hours  of  a  firearms
safety  course pertaining to the safe use, carrying, possession, mainte-
nance and storage of a firearm; and (ii) persons who  were  licensed  to
possess  a  pistol or revolver prior to the effective date of this para-
graph are not required to have completed a firearms  safety  course  and
test; and (g) concerning whom no good cause exists for the denial of the
license. No person shall engage in the business of gunsmith or dealer in
firearms  unless  licensed  pursuant  to  this  section. An applicant to
engage in such business shall also be a citizen of  the  United  States,
more  than  twenty-one  years of age and maintain a place of business in
the city or county where the license is issued. For  such  business,  if
the applicant is a firm or partnership, each member thereof shall comply
with  all  of  the requirements set forth in this subdivision and if the
applicant is a corporation, each officer thereof shall so comply.
  S 4. Subdivision 11 of section 400.00 of the penal law, as amended  by
chapter 210 of the laws of 1999, is amended to read as follows:
  11.  License:  revocation and suspension. The conviction of a licensee
anywhere of a felony or serious offense shall operate as a revocation of
the license. A license may be revoked or suspended as  provided  for  in
section  530.14  of  the criminal procedure law or section eight hundred
forty-two-a of the family court act. Except for a license issued  pursu-
ant  to  section  400.01  of  this article, a license may be revoked and
cancelled at any time in the city of New York, and in  the  counties  of
Nassau  and Suffolk, by the licensing officer, and elsewhere than in the
city of New York by any judge or justice of a court of record; a license
issued pursuant to section 400.01 of this article  may  be  revoked  and
cancelled  at  any time by the licensing officer or any judge or justice
of a court of record. The official revoking a license shall give written
notice thereof without unnecessary delay to  the  executive  department,
division  of state police, Albany, and shall also notify immediately the
duly constituted police authorities of the locality.   FOR  PURPOSES  OF
THIS  SUBDIVISION,  THE TERM "SERIOUS OFFENSE" SHALL INCLUDE, BUT NOT BE
LIMITED TO, A SECOND VIOLATION OF SUBDIVISION ELEVEN-A OF  THIS  SECTION
WITHIN TEN YEARS OF A PRIOR VIOLATION OF SUCH SUBDIVISION.
  S 5. Section 400.00 of the penal law is amended by adding a new subdi-
vision 11-a to read as follows:
  11-A.  LICENSE; SUSPENSION FOR POSSESSION WHILE UNDER THE INFLUENCE OF
ALCOHOL OR A CONTROLLED SUBSTANCE. (A) NO  LICENSEE  SHALL  POSSESS  ANY
LOADED  FIREARM,  AS DEFINED IN SUBDIVISION FIFTEEN OF SECTION 265.00 OF

S. 252                              3

THIS CHAPTER, ON HIS OR HER PERSON IN A PUBLIC PLACE WHILE SUCH LICENSEE
IS EITHER UNDER THE INFLUENCE OF ALCOHOL OR UNDER  THE  INFLUENCE  OF  A
CONTROLLED  SUBSTANCE,  AS  DEFINED IN SECTIONS THIRTY-THREE HUNDRED TWO
AND  THIRTY-THREE HUNDRED SIX OF THE PUBLIC HEALTH LAW.  FOR PURPOSES OF
THIS SUBDIVISION, A PERSON IS CONSIDERED TO BE UNDER  THE  INFLUENCE  OF
ALCOHOL  OR  UNDER  THE  INFLUENCE  OF A CONTROLLED SUBSTANCE WHERE SUCH
PERSON HAS VOLUNTARILY CONSUMED ALCOHOL OR VOLUNTARILY USED ONE OR  MORE
CONTROLLED SUBSTANCES, OR BOTH, TO THE EXTENT THAT HIS OR HER ABILITY TO
SAFELY HANDLE OR USE A LOADED FIREARM HAS BEEN SIGNIFICANTLY DIMINISHED.
FOR  PURPOSES  OF  THIS  SUBDIVISION, "PUBLIC PLACE" SHALL HAVE THE SAME
MEANING AS IN  SUBDIVISION  ONE  OF  SECTION  240.00  OF  THIS  CHAPTER,
PROVIDED  HOWEVER, THAT FOR PURPOSES OF THIS SUBDIVISION, "PUBLIC PLACE"
SHALL ALSO INCLUDE THE INTERIOR OF A MOTOR VEHICLE.   AS  USED  IN  THIS
SUBDIVISION,  "ON  HIS  OR  HER PERSON" SHALL HAVE ITS ORDINARY MEANING,
PROVIDED, HOWEVER, THAT FOR PURPOSES OF THIS SUBDIVISION, A PERSON SHALL
ALSO BE DEEMED TO POSSESS A FIREARM "ON  HIS  OR  HER  PERSON"  WHERE  A
FIREARM  LICENSED TO SUCH PERSON IS FOUND IN A MOTOR VEHICLE AT THE SAME
TIME SUCH PERSON IS AN OCCUPANT OF SUCH VEHICLE.
  (B) THE LICENSE TO CARRY OR POSSESS A FIREARM OF  ANY  PERSON  WHO  IS
CHARGED  WITH  A  VIOLATION OF ANY OF THE PROVISIONS OF PARAGRAPH (A) OF
THIS SUBDIVISION OR WHO REFUSES TO SUBMIT TO A CHEMICAL TEST OF  HIS  OR
HER  BREATH,  BLOOD,  URINE OR SALIVA FOR THE PURPOSE OF DETERMINING THE
ALCOHOLIC AND/OR DRUG CONTENT OF  HIS  OR  HER  BLOOD  SHALL  BE  DEEMED
SUSPENDED,  WITH RESPECT TO THE FIREARM OR FIREARMS FORMING THE BASIS OF
SUCH CHARGE OR REFUSAL, PENDING A HEARING HELD PURSUANT TO THIS SUBDIVI-
SION  AND  SUCH  FIREARM  OR  FIREARMS,  TOGETHER  WITH  ANY  AMMUNITION
POSSESSED THEREWITH, SHALL BE CONFISCATED AND HELD BY THE POLICE PENDING
SUCH HEARING.
  (C)  (I)  ANY PERSON WHO HOLDS A LICENSE TO CARRY OR POSSESS A FIREARM
IN THIS STATE SHALL BE DEEMED TO HAVE GIVEN HIS  OR  HER  CONSENT  TO  A
CHEMICAL  TEST  OF  HIS  OR  HER  BREATH, BLOOD, URINE OR SALIVA FOR THE
PURPOSE OF DETERMINING THE ALCOHOLIC AND/OR DRUG CONTENT OF HIS  OR  HER
BLOOD;  PROVIDED,  THAT SUCH TEST IS ADMINISTERED BY OR AT THE DIRECTION
OF A POLICE OFFICER WITH RESPECT TO A CHEMICAL TEST OF BREATH, URINE  OR
SALIVA OR, WITH RESPECT TO A CHEMICAL TEST OF BLOOD, AT THE DIRECTION OF
A  POLICE  OFFICER  HAVING  REASONABLE  GROUNDS  TO  BELIEVE SUCH PERSON
POSSESSES A FIREARM IN VIOLATION OF THIS SUBDIVISION.
  (II) IF SUCH LICENSEE, HAVING BEEN REQUESTED TO SUBMIT TO SUCH  CHEMI-
CAL  TEST  AND  HAVING BEEN INFORMED THAT HIS OR HER LICENSE TO CARRY OR
POSSESS A FIREARM SHALL BE SUSPENDED FOR A REFUSAL  TO  SUBMIT  TO  SUCH
CHEMICAL  TEST,  REFUSES  TO SUBMIT TO SUCH TEST OR IS ADMINISTERED SUCH
TEST, A WRITTEN REPORT OF SUCH REFUSAL OR TEST  RESULT  SHALL  BE  IMME-
DIATELY  MADE BY THE POLICE OFFICER BEFORE WHOM SUCH REFUSAL OR TEST WAS
MADE. SUCH REPORT MAY BE VERIFIED BY HAVING  THE  REPORT  SWORN  TO,  OR
AFFIXING TO SUCH REPORT A FORM NOTICE THAT FALSE STATEMENTS MADE THEREIN
ARE  PUNISHABLE  AS A CLASS A MISDEMEANOR, PURSUANT TO SECTION 210.45 OF
THIS CHAPTER, AND SUCH FORM NOTICE TOGETHER WITH THE SUBSCRIPTION OF THE
DEPONENT SHALL CONSTITUTE A VERIFICATION OF THE REPORT.  THE  REPORT  OF
THE  POLICE OFFICER SHALL STATE THAT HE OR SHE HAD REASONABLE GROUNDS TO
BELIEVE SUCH LICENSEE TO HAVE BEEN IN VIOLATION OF THIS SUBDIVISION AND,
IF APPROPRIATE, THAT SAID PERSON HAD REFUSED TO SUBMIT TO SUCH  CHEMICAL
TEST.  COPIES OF SUCH REPORT SHALL BE FORWARDED BY THE POLICE OFFICER TO
THE LICENSING OFFICER WITHIN FORTY-EIGHT HOURS.
  (D) (I) ANY LICENSEE WHOSE LICENSE TO CARRY OR POSSESS A  FIREARM  HAS
BEEN  DEEMED  SUSPENDED  PURSUANT  TO  THE TERMS OF THIS SUBDIVISION, IS
ENTITLED TO A HEARING BY THE LICENSING OFFICER, NO LATER THAN SEVEN DAYS

S. 252                              4

AFTER THE DATE ON WHICH HE OR SHE ALLEGEDLY VIOLATED  THIS  SUBDIVISION.
SUCH  HEARING  SHALL  BE  CONDUCTED BY THE LICENSING OFFICER, OR IF SUCH
POSSESSION ALLEGEDLY OCCURRED IN THE CITY OF NEW  YORK,  BY  THE  POLICE
COMMISSIONER OF SUCH CITY. IF THE LICENSING OFFICER FAILS TO PROVIDE FOR
SUCH  HEARING  WITHIN  THE  TIME  PRESCRIBED HEREIN, THE LICENSE OF SUCH
PERSON SHALL BE REINSTATED PENDING A HEARING PURSUANT TO  THIS  SUBDIVI-
SION  AND  ANY  LAWFULLY  POSSESSED  FIREARM  AND AMMUNITION CONFISCATED
PURSUANT TO PARAGRAPH (B)  OF  THIS  SUBDIVISION  SHALL  BE  IMMEDIATELY
RETURNED  TO  THE LICENSEE.   THE BURDEN OF PROOF AT A HEARING CONDUCTED
PURSUANT TO THIS SUBDIVISION SHALL BE ON THE POLICE OFFICER TO PROVE THE
ISSUES BY A PREPONDERANCE OF THE EVIDENCE.  THE HEARING SHALL BE LIMITED
TO THE FOLLOWING ISSUES: (1) DID THE PERSON POSSESS A LOADED FIREARM  ON
HIS OR HER PERSON IN A PUBLIC PLACE WHILE UNDER THE INFLUENCE OF ALCOHOL
OR  DRUGS  IN  VIOLATION  OF THIS SUBDIVISION AND DID THE POLICE OFFICER
HAVE REASONABLE GROUNDS FOR BELIEVING SUCH VIOLATION HAD  OCCURRED;  AND
(2)  IF SUSPENSION IS BASED UPON A REFUSAL TO SUBMIT TO A CHEMICAL TEST,
DID THE POLICE OFFICER HAVE REASONABLE GROUNDS FOR BELIEVING THE  LICEN-
SEE  POSSESSED  A  FIREARM  IN  VIOLATION  OF THIS SUBDIVISION, WAS SUCH
PERSON GIVEN SUFFICIENT WARNING,  IN  CLEAR  AND  UNEQUIVOCAL  LANGUAGE,
PRIOR  TO SUCH REFUSAL THAT SUCH REFUSAL TO SUBMIT TO SUCH CHEMICAL TEST
WOULD RESULT IN THE SUSPENSION OF HIS OR HER LICENSE WHETHER OR  NOT  HE
OR  SHE  IS  FOUND  GUILTY  OF  THE CHARGE AND DID SUCH PERSON REFUSE TO
SUBMIT TO SUCH CHEMICAL TEST.   IF, AFTER SUCH  HEARING,  THE  LICENSING
OFFICER  FINDS  ON  BOTH OF SAID ISSUES IN THE NEGATIVE, HE OR SHE SHALL
IMMEDIATELY REINSTATE SUCH LICENSE SUBJECT TO ANY EXISTING  RESTRICTION,
REVOCATION,  OR  SUSPENSION  OF  SUCH LICENSE AND ANY LAWFULLY POSSESSED
FIREARM AND AMMUNITION CONFISCATED PURSUANT TO  PARAGRAPH  (B)  OF  THIS
SUBDIVISION  SHALL  BE  IMMEDIATELY RETURNED TO THE LICENSEE.  IF, AFTER
SUCH HEARING, THE LICENSING OFFICER FINDS EITHER OF THE  ISSUES  IN  THE
AFFIRMATIVE,  HE  OR  SHE  SHALL  IMMEDIATELY SUSPEND THE LICENSE.   THE
FIREARM LICENSE SHALL BE SUSPENDED FOR A PERIOD OF ONE YEAR. THE LICENS-
ING OFFICER, UPON SUSPENDING A LICENSE, SHALL INSTRUCT THE  PERSON  THAT
ALL  OUTSTANDING  FIREARMS HELD PURSUANT TO SUCH LICENSE, AND ANY AMEND-
MENTS THERETO, SHALL BE SURRENDERED TO THE DULY ENTITLED POLICE AUTHORI-
TIES WITHIN TWENTY-FOUR HOURS OF THE CONCLUSION  OF  SUCH  HEARING.  THE
LICENSING  OFFICER  SHALL  INSTRUCT SUCH PERSON THAT ALL WEAPONS SURREN-
DERED PURSUANT TO THIS PARAGRAPH AND PARAGRAPH (B) OF  THIS  SUBDIVISION
SHALL BE RETURNED TO SUCH PERSON UPON THE REINSTATEMENT OF SUCH LICENSE.
ANY PERSON MAY WAIVE HIS OR HER RIGHT TO A HEARING UNDER THIS PARAGRAPH.
FAILURE  BY SUCH PERSON TO APPEAR FOR HIS OR HER SCHEDULED HEARING SHALL
CONSTITUTE A WAIVER OF SUCH HEARING, PROVIDED, HOWEVER, THAT SUCH PERSON
MAY PETITION THE LICENSING OFFICER FOR A NEW HEARING WHICH, IF  GRANTED,
SHALL BE HELD AS SOON AS PRACTICABLE.
  (II)  EVIDENCE  OF  A REFUSAL TO SUBMIT TO SUCH CHEMICAL TEST SHALL BE
ADMISSIBLE IN ANY HEARING HELD PURSUANT TO THE PROVISIONS OF THIS SUBDI-
VISION BUT ONLY UPON SHOWING THAT THE PERSON WAS GIVEN SUFFICIENT  WARN-
ING, IN CLEAR AND UNEQUIVOCAL LANGUAGE, OF THE EFFECT OF SUCH REFUSAL.
  (III)  UPON  THE  REQUEST OF THE PERSON WHO WAS TESTED, THE RESULTS OF
SUCH TEST SHALL BE MADE AVAILABLE TO HIM OR HER.
  (IV) THE CHEMICAL TEST PROVIDED FOR IN SUBPARAGRAPH (I)  OF  PARAGRAPH
(C)  OF  THIS  SUBDIVISION  SHALL  BE  CONDUCTED  IN  THE SAME MANNER AS
PROVIDED IN SUBDIVISION FOUR OF SECTION ELEVEN  HUNDRED  NINETY-FOUR  OF
THE VEHICLE AND TRAFFIC LAW.
  (V)  ANY  PERSON  WHOSE  LICENSE  IS SUSPENDED FOR A VIOLATION OF THIS
SUBDIVISION SHALL, AS A CONDITION FOR  REINSTATEMENT  OF  SUCH  LICENSE,
SUCCESSFULLY  COMPLETE  THE  ALCOHOL  AND  DRUG  REHABILITATION  PROGRAM

S. 252                              5

PROVIDED FOR IN SECTION EIGHT HUNDRED THIRTY-SEVEN-S  OF  THE  EXECUTIVE
LAW.  THE  LICENSING  OFFICER SHALL NOT REINSTATE SUCH LICENSE UNTIL THE
COMMISSIONER OF THE DIVISION OF CRIMINAL JUSTICE SERVICES CERTIFIES SUCH
PERSON  HAS  SUCCESSFULLY  COMPLETED THE ALCOHOL AND DRUG REHABILITATION
PROGRAM.
  (VI) DURING THE PERIOD OF SUSPENSION PROVIDED FOR  IN  THIS  PARAGRAPH
SUCH  PERSON  SHALL  NOT  BE  PERMITTED  TO APPLY FOR ANY LICENSE, OR AN
AMENDMENT TO AN EXISTING LICENSE, PROVIDED FOR IN THIS SECTION.
  (E) THE LICENSING OFFICER SUSPENDING  A  LICENSE  SHALL  GIVE  WRITTEN
NOTICE  THEREOF, WITHOUT UNNECESSARY DELAY, TO THE EXECUTIVE DEPARTMENT,
DIVISION OF STATE POLICE, ALBANY, AND SHALL ALSO NOTIFY IMMEDIATELY  THE
DULY CONSTITUTED POLICE AUTHORITIES OF THE LOCALITY.
  (F) IN ANY HEARING PURSUANT TO THIS SUBDIVISION, THE LICENSING OFFICER
SHALL  ADMIT  EVIDENCE OF THE AMOUNT OF ALCOHOL OR DRUGS IN THE PERSON'S
BLOOD AS SHOWN BY A TEST ADMINISTERED PURSUANT TO THE PROVISIONS OF THIS
SUBDIVISION.
   THE FOLLOWING EFFECT SHALL BE  GIVEN  TO  EVIDENCE  OF  BLOOD-ALCOHOL
CONTENT,  AS  DETERMINED  BY  SUCH  TESTS,  OF  A  PERSON CHARGED WITH A
VIOLATION OF THIS SUBDIVISION:
  (I) EVIDENCE THAT THERE WAS LESS THAN .10 OF ONE PER CENTUM BY  WEIGHT
OF  ALCOHOL  IN  SUCH  PERSON'S BLOOD SHALL BE PRIMA FACIE EVIDENCE THAT
SUCH PERSON WAS NOT UNDER THE INFLUENCE OF ALCOHOL;
  (II) EVIDENCE THAT THERE WAS .10 OF ONE PER CENTUM OR MORE  BY  WEIGHT
OF  ALCOHOL  IN  SUCH  PERSON'S BLOOD SHALL BE PRIMA FACIE EVIDENCE THAT
SUCH PERSON WAS UNDER THE INFLUENCE OF ALCOHOL.
  (G) EXCEPT AS HEREIN  SPECIFICALLY  PROVIDED,  THE  HEARING  CONDUCTED
PURSUANT  TO  THIS  SUBDIVISION  SHALL  BE  DEEMED TO BE AN ADJUDICATORY
PROCEEDING SUBJECT TO THE PROVISIONS  OF  ARTICLE  THREE  OF  THE  STATE
ADMINISTRATIVE PROCEDURE ACT.
  (H)  ANY PERSON AGGRIEVED BY A DECISION AFTER THE HEARING PROVIDED FOR
IN THIS SUBDIVISION MAY APPEAL SUCH DECISION PURSUANT TO THE  PROVISIONS
OF ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES.
  (I)  NOTWITHSTANDING  ANY  OTHER  PROVISION OF LAW TO THE CONTRARY, NO
PERSON SHALL BE ARRESTED SOLELY FOR AN ALLEGED VIOLATION OF THIS  SUBDI-
VISION.  HOWEVER, A PERSON FOR WHOM A CHEMICAL TEST IS AUTHORIZED PURSU-
ANT TO THIS SUBDIVISION MAY BE TEMPORARILY DETAINED BY THE POLICE SOLELY
FOR THE PURPOSE OF REQUESTING OR ADMINISTERING SUCH CHEMICAL TEST  WHEN-
EVER  ARREST  WITHOUT WARRANT FOR A PETTY OFFENSE WOULD BE AUTHORIZED IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 140.10 OF THE CRIMINAL  PROCE-
DURE LAW.
  (J)  NOTHING  CONTAINED  IN THIS SUBDIVISION SHALL BE DEEMED TO IN ANY
WAY REDUCE OR LIMIT THE EXISTING AUTHORITY OF  A  LICENSING  OFFICER  TO
REVOKE  OR  SUSPEND  A  LICENSE ISSUED PURSUANT TO THIS SECTION. NOTHING
CONTAINED IN THIS SUBDIVISION SHALL BE DEEMED TO LIMIT, REDUCE OR IN ANY
WAY EFFECT THE CRIMINAL LIABILITY OF A LICENSEE FOR ANY FIREARM OR OTHER
OFFENSE DEFINED IN THIS CHAPTER OR ANY OTHER PROVISION OF LAW.
  S 6. Subdivision 15 of section 400.00 of the penal law is  amended  to
read as follows:
  15.  Any  violation  by  any  person of any provision of this section,
OTHER THAN A VIOLATION OF PARAGRAPH (A) OF SUBDIVISION ELEVEN-A OF  THIS
SECTION, is a class A misdemeanor.
  S  7.  The  executive  law is amended by adding a new section 837-s to
read as follows:
  S 837-S. ALCOHOL AND DRUG REHABILITATION PROGRAM.  1.  PROGRAM  ESTAB-
LISHMENT. THERE IS HEREBY ESTABLISHED AN ALCOHOL AND DRUG REHABILITATION
PROGRAM WITHIN THE DIVISION.  THE COMMISSIONER SHALL ESTABLISH, BY REGU-

S. 252                              6

LATION,  THE  INSTRUCTIONAL  AND  REHABILITATIVE ASPECTS OF THE PROGRAM.
SUCH PROGRAM SHALL CONSIST OF AT LEAST FIFTEEN AND NOT MORE THAN  THIRTY
HOURS  AND INCLUDE, BUT NEED NOT BE LIMITED TO, CLASSROOM INSTRUCTION IN
AREAS DEEMED SUITABLE BY THE COMMISSIONER.
  2.  CURRICULUM.  THE  FORM,  CONTENT AND METHOD OF PRESENTATION OF THE
VARIOUS ASPECTS OF SUCH PROGRAM SHALL BE ESTABLISHED BY THE  COMMISSION-
ER.  IN  THE  DEVELOPMENT  OF  THE  FORM, CURRICULUM AND CONTENT OF SUCH
PROGRAM, THE COMMISSIONER MAY CONSULT WITH THE  COMMISSIONER  OF  MENTAL
HEALTH, THE COMMISSIONER OF THE OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE
SERVICES  AND  ANY  OTHER  STATE  DEPARTMENT  OR  AGENCY AND REQUEST AND
RECEIVE ASSISTANCE FROM THEM. THE COMMISSIONER  IS  ALSO  AUTHORIZED  TO
DEVELOP  MORE THAN ONE CURRICULUM AND COURSE CONTENT FOR SUCH PROGRAM IN
ORDER TO MEET THE VARYING REHABILITATIVE NEEDS OF THE PARTICIPANTS.
  3. WHERE AVAILABLE. A COURSE IN SUCH PROGRAM SHALL BE AVAILABLE IN  AT
LEAST  EVERY  COUNTY  IN THE STATE, EXCEPT WHERE THE COMMISSIONER DETER-
MINES THAT THERE IS NOT A SUFFICIENT NUMBER OF ALCOHOL  OR  DRUG-RELATED
OFFENSES  IN  A  COUNTY TO MANDATE THE ESTABLISHMENT OF SAID COURSE, AND
THAT PROVISIONS BE MADE FOR THE RESIDENTS OF SAID  COUNTY  TO  ATTEND  A
COURSE IN ANOTHER COUNTY WHERE A COURSE EXISTS.
  4. ELIGIBILITY. PARTICIPATION IN THE PROGRAM SHALL BE LIMITED TO THOSE
PERSONS  HAVING  VIOLATED  THE  PROVISIONS  OF  SUBDIVISION  ELEVEN-A OF
SECTION 400.00 OF THE PENAL LAW.
  5. EFFECT OF COMPLETION.  UPON SUCCESSFUL COMPLETION OF  A  COURSE  IN
SUCH  PROGRAM AS CERTIFIED BY ITS ADMINISTRATOR, THE COMMISSIONER SHALL,
ON A FORM PROVIDED FOR SUCH PURPOSE, NOTIFY  THE  APPROPRIATE  LICENSING
OFFICER  HAVING  ISSUED  THE  ORDER  OF  SUSPENSION  OF  SUCH LICENSEE'S
SUCCESSFUL COMPLETION OF THE COURSE PROVIDED FOR IN THIS SECTION.
  6. FEES. THE COMMISSIONER SHALL ESTABLISH A SCHEDULE  OF  FEES  TO  BE
PAID  BY  OR ON BEHALF OF EACH PARTICIPANT IN THE PROGRAM, AND MAY, FROM
TIME TO TIME, MODIFY SAME.  SUCH FEES SHALL DEFRAY THE ONGOING  EXPENSES
OF  THE  PROGRAM,  PROVIDED, HOWEVER, THAT PURSUANT TO AN AGREEMENT WITH
THE DIVISION A MUNICIPALITY, DEPARTMENT THEREOF,  OR  OTHER  AGENCY  MAY
CONDUCT A COURSE IN SUCH PROGRAM WITH ALL OR PART OF THE EXPENSE OF SUCH
COURSE AND PROGRAM BEING BORNE BY SUCH MUNICIPALITY, DEPARTMENT OR AGEN-
CY.  IN NO EVENT SHALL SUCH FEE BE REFUNDABLE, EITHER FOR REASONS OF THE
PARTICIPANT'S WITHDRAWAL OR EXPULSION FROM SUCH PROGRAM OR OTHERWISE.
  S 8. 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  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.    Paragraph (a) of subdivision 1 of section 70.02 of the penal
law, as amended by chapter 320 of the laws of 2006, is amended  to  read
as follows:
  (a)  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

S. 252                              7

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, criminal use of a firearm in the first degree as defined
in section 265.09, criminal sale of a  firearm  in  the  [first]  SECOND
degree as defined in section [265.13] 265.12, CRIMINAL SALE OF A FIREARM
WITH THE AID OF A MINOR AS DEFINED IN SECTION 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,  intim-
idating  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.
  S  11.  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.
  S 12. 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] THIRD  degree
as  defined in section [265.12] 265.11, [criminal sale of a firearm with
the aid of a minor as defined in section  265.14]  CRIMINAL  SALE  OF  A
FIREARM TO A MINOR AS DEFINED IN SECTION 265.16, 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.
  S  13.  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. 252                              8

  S  14.  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 15. Subparagraph (i) of paragraph (h) of subdivision  2  of  section
1349 of the civil practice law and rules, as added by chapter 655 of the
laws of 1990, is amended to read as follows:
  (i) [seventy-five] SIXTY-FIVE percent of such moneys shall be deposit-
ed  to  a law enforcement purposes subaccount of the general fund of the
state where the claiming agent is an agency of the state  or  the  poli-
tical  subdivision  or public authority of which the claiming agent is a
part, to be used for law enforcement use in the investigation  of  penal
law  offenses;  AND TEN PERCENT OF SUCH MONIES SHALL BE ALLOCATED TO THE
POLICE ATHLETIC LEAGUE OF THE POLITICAL SUBDIVISION OR PUBLIC  AUTHORITY
OF WHICH THE CLAIMING AGENT IS A PART;
  S  16.    Paragraph (b) of 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:
  (b) 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 criminally negligent homi-
cide as defined in section 125.11 of this chapter; AND (IV) AT LEAST TEN
YEARS AND MUST NOT EXCEED TWENTY YEARS WHERE THE SENTENCE IS FOR A CRIME
OF CRIMINAL POSSESSION OF A WEAPON IN THE SECOND DEGREE  AS  DEFINED  IN
SECTION 265.03 OF THIS CHAPTER;
  S  17.    This  act  shall  take  effect on the first of November next
succeeding the date on which it shall have become a law.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.