Senate Bill S1949

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1949
 
                        2021-2022 Regular Sessions
 
                             I N  S E N A T E
 
                             January 16, 2021
                                ___________
 
 Introduced  by  Sen.  AKSHAR -- 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 increasing  the  penalties
   for criminal use of a firearm in the second degree and criminal use of
   a firearm in the first degree

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 265.08 of the penal law, as added by chapter 233 of
 the laws of 1980, is amended to read as follows:
 § 265.08 Criminal use of a firearm in the second degree.
   A person is guilty of criminal use of a firearm in the  second  degree
 when  he  commits  any  class [C] B violent felony offense as defined in
 paragraph [(b)] (A) of subdivision one of section 70.02 and he either:
   (1) 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
   (2)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
 machine gun or other firearm.
   Criminal use of a firearm in the second degree is a class [C] B  felo-
 ny.
   § 2. 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 commits [any class B violent felony offense as defined in
 paragraph (a) of subdivision one of section 70.02]  ANY  SECOND  VIOLENT
 FELONY OFFENSE AS DEFINED IN SECTION 70.04 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

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

                                                            LBD04369-01-1

 S. 1949                             2
 
   (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] A 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, 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 aggregate of the five
 year consecutive term imposed pursuant to this subdivision and the mini-
 mum 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 subdivi-
 sion shall not  apply  where  the  defendant's  criminal  liability  for
 displaying a loaded weapon from which a shot, readily capable of produc-
 ing  death  or other serious injury may be discharged, in furtherance of
 the commission of crime is based on the conduct of another  pursuant  to
 section 20.00 of this chapter.
   §  3.  Paragraphs (a) and (b) of subdivision 1 of section 70.02 of the
 penal law, paragraph (a) as amended by chapter 189 of the laws  of  2018
 and  paragraph  (b)  as  amended  by chapter 94 of the laws of 2020, 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,  sex  trafficking  of  a  child  as
 defined  in  section  230.34-a, 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]
 SECOND degree as defined in section [265.09] 265.08, 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,

 S. 1949                             3
 
 intimidating a victim or witness in  the  first  degree  as  defined  in
 section  215.17,  hindering prosecution of terrorism in the first degree
 as defined in section 490.35, criminal possession of a  chemical  weapon
 or  biological weapon in the second degree as defined in section 490.40,
 and criminal use of a chemical weapon or biological weapon in the  third
 degree as defined in section 490.47.
   (b)  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, firefighter or emer-
 gency  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, aggravated strangulation as defined
 in section 121.13-a, 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. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.