NY State Senate Bill 2017-S810

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

Please enter your contact information

First Name

Last Name

Email Address

A valid email address is required.

Home address is used to determine the senate district in which you reside. Your support or opposition to this bill is then shared immediately with the senator who represents you.

Optional services from the NY State Senate:

Create an account. An account allows you to officially support or oppose key legislation, sign petitions with a single click, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Include a custom message for your Senator? (Optional)

Enter a message to your senator. Many New Yorkers use this to share the reasoning behind their support or opposition to the bill. Others might share a personal anecdote about how the bill would affect them or people they care about.

Actions

View Actions

Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 03, 2018	referred to codes
Jan 05, 2017	referred to codes

2017-S810 (ACTIVE) - Details

Current Committee:: Senate Codes
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 Other Legislative Sessions:: 2009-2010: S2110
2011-2012: S1407
2013-2014: S2237
2015-2016: S784

2017-S810 (ACTIVE) - 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.

2017-S810 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S810

 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 OR GENERAL IDEA OF BILL :

To provide stiffer sentences to criminals who use firearms to commit
felonies.

 SUMMARY OF PROVISIONS :

Section 1 of this bill amends section 265.09 of the Penal Law to
provide that an actor is guilty of the offense of criminal use of a
firearm in the first degree when he or she commits a felony while
either possessing a loaded deadly weapon or displaying what appears to
be a pistol, revolver, rifle, shotgun, machine gun or other firearm.
This section also makes conforming amendments to the sentencing
provisions of Penal Law section 265.09.

Section 2 of this bill repeals Penal Law section 265.08, criminal use
of a firearm in the second degree, because the elements of this

offense are entirely included in Penal Law section 265.09 as amended
by this bill.

Section 3 of this bill makes conforming technical changes to the Penal
Law.

Section 4 of this bill makes conforming technical changes to the
Vehicle and Traffic law. Section 5 of this bill makes conforming
technical changes to the General Business Law.

Section 6 of this bill provides that this act shall take effect on the
first of November next succeeding the date on which it shall have
become a law.

 EXISTING LAW :

Penal Law section 265.09 only applies to situations where the offense
being committed is a class "B" violent felony and Penal Law section
265.08 only applies to situations where the offense being committed is
a class "C" violent felony.

 JUSTIFICATION :

Currently, a person can be charged with criminal use of a firearm in
the first degree or second degree when the offense that he or she is
committing with such firearm, real or fake, is either a class "B"
violent felony or a class "C" violent felony. If the actor is
committing a class "B" nonviolent felony, such as criminal sale of a
controlled substance in the third degree, he or she cannot also be
charged with criminal use of a firearm in the first degree. When any
felony is committed while the actor possesses a firearm, regardless of
whether it is real, fake or unloaded, the actor should be subject to
the same enhanced penalties. It is the possession of the firearm that
triggers the enhanced penalties, not the underlying offense.

Additionally, 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 firearms, 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.

The public safety is jeopardized regardless of whether the 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, in hindsight, capable of being fired.

 PRIOR LEGISLATIVE HISTORY :

2016: S.784-A - Amend and recommit to Codes

2015: S.784 - Referred to Codes

2014: S.2237-D - 3rd Reading Calendar

2013: S.2237-C - 3rd Reading Calendar

2012: S.1407-B - Passed the Senate

2011: S.1407-B - Passed the Senate

2010: S.2110-A - Referred to Codes

2009: S.2110 - Referred to Codes

2007-8: S.208 - Referred to Codes both years

 FISCAL IMPLICATIONS :

None.

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

2017-S810 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    810
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2017
                                ___________
 
 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, subdivision 2 as amended by chapter 1 of the laws
 of 2013, is amended to read as follows:
 § 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.
   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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD05051-01-7

 S. 810                              2
 
 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.
   § 2. Section 265.08 of the penal law is REPEALED.
   §  3.  Paragraphs (a) and (b) of subdivision 1 of section 70.02 of the
 penal law, paragraph (a) as amended by chapter 368 of the laws of  2015,
 and  paragraph  (b)  as  amended  by  chapter 1 of the laws of 2013, are
 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
 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, sex trafficking as defined in paragraphs (a) and (b) of
 subdivision five of section  230.34,  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 degree as defined in  section  265.13,  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.
   (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-

 S. 810                              3
 
 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.
   §  4.  Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
 and traffic law, as amended by chapter 368  of  the  laws  of  2015,  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, 230.11, 230.12, 230.13, 230.19, 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 afor-
 esaid  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.
   §  5. The opening paragraph of paragraph f of subdivision 1 of section
 410 of the general business law, as amended by chapter 80 of the laws of
 2015, is amended to read as follows:
   Conviction of any of the following crimes subsequent to  the  issuance
 of a license or registration 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 imprisonment 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] FIREARM pursuant to [sections  265.08
 and]  SECTION  265.09;  criminal  sale of a [weapon] FIREARM pursuant to

 S. 810                              4
 
 sections 265.11 and 265.12; compelling prostitution pursuant to  section
 230.33;  sex  trafficking  pursuant  to section 230.34; 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 criminal proce-
 dure 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.
   § 6. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.

Comments

Open Legislation is a forum for New York State legislation. All comments are subject to review and community moderation is encouraged.

Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity, hate or toxic speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Attempts to intimidate and silence contributors or deliberately deceive the public, including excessive or extraneous posting/posts, or coordinated activity, are prohibited and may result in the temporary or permanent banning of the user. 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.

Create an account. An account allows you to sign petitions with a single click, officially support or oppose key legislation, and follow issues, committees, and bills that matter to you. When you create an account, you agree to this platform's terms of participation.

Find your Senator and share your views on important issues.

Do you support this bill?

Senate Bill S810

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2017-S810 (ACTIVE) - Details

2017-S810 (ACTIVE) - Summary

2017-S810 (ACTIVE) - Sponsor Memo

2017-S810 (ACTIVE) - Bill Text download pdf

Comments

Do you support this bill?

Get Status Alerts for 2017-S810

Senate Bill S810

Share this bill

Sponsored By

Martin J. Golden

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2017-S810 (ACTIVE) - Details

2017-S810 (ACTIVE) - Summary

2017-S810 (ACTIVE) - Sponsor Memo

2017-S810 (ACTIVE) - Bill Text download pdf

Comments