S T A T E O F N E W Y O R K ________________________________________________________________________ 3346 2009-2010 Regular Sessions I N A S S E M B L Y January 27, 2009 ___________ Introduced by M. of A. KOON, CARROZZA, ENGLEBRIGHT, ALFANO -- Multi- Sponsored by -- M. of A. AUBRY, BARRA, CLARK, DIAZ, DINOWITZ, GALEF, GLICK, GOTTFRIED, GREENE, HOOPER, HOYT, JACOBS, JOHN, LAVINE, MAYER- SOHN, PERRY, PHEFFER, SCARBOROUGH, TOWNS, WRIGHT -- read once and referred to the Committee on Codes AN ACT to amend the penal law and the criminal procedure law, in relation to banning dangerous firearms THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. Legislative findings and declarations. The legislature 2 hereby finds and declares that certain poorly made, easily concealable, 3 and generally unsafe weapons commonly known as "Saturday night specials" 4 or "junk guns" are disproportionately used in the commission of crimes 5 and serve no legitimate sporting or self-protection purpose. The legis- 6 lature additionally finds and declares that these weapons pose such an 7 imminent threat and danger to the safety and security of the people of 8 this state that it is necessary to ban the possession and use of such 9 weapons. The legislature further finds and declares that such weapons, 10 if produced outside of the United States, would fail the public safety 11 standards established by the United States bureau of alcohol, tobacco, 12 and firearms for imported firearms under the provisions of the Gun 13 Control Act of 1968, and that, at present, large numbers of such weapons 14 are being manufactured and sold domestically without having to meet 15 these federal import standards. 16 S 2. Section 265.00 of the penal law is amended by adding a new subdi- 17 vision 24 to read as follows: 18 24. "DANGEROUS FIREARM" MEANS ANY OF THE FIREARMS, IN SUCH CALIBER, 19 KNOWN AS: 20 (I) ACCU-TEK MODEL 32SS 21 (II) ACCU-TEK MODEL 380SS 22 (III) ACCU-TEK MODEL AT-25 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD01622-01-9 A. 3346 2 1 (IV) AMT BACKUP 2 (V) AMT BACKUP II 3 (VI) BERETTA MODEL 21 BOBCAT, .221R 4 (VII) BERETTA MODEL 21 BOBCAT, .25ACP 5 (VIII) BERETTA MODEL 950 JETFIRE 6 (IX) BRYCO MODEL 38, .380ACP 7 (X) BRYCO MODEL J-22 8 (XI) BRYCO MODEL J-25 9 (XII) COLT MUSTANG 10 (XIII) COLT MUSTANG PLUS II 11 (XIV) DAVIS BIG BORE DERRINGER, .32 H&R MAG 12 (XV) DAVIS BIG BORE DERRINGER, .38SPL 13 (XVI) DAVIS D SERIES DERRINGER, .221R 14 (XVII) DAVIS D SERIES DERRINGER, .22WMR 15 (XVIII) DAVIS D SERIES DERRINGER, .25ACP 16 (XIX) DAVIS D SERIES DERRINGER, .32ACP 17 (XX) DAVIS P-32 18 (XXI) DAVIS P-38 19 (XXII) INTRATEC PROTEC 22 20 (XXIII) INTRATEC PROTEC 25 21 (XXIV) KBI PSP 25 22 (XXV) LORCIN L-22 23 (XXVI) LORCIN L-25 24 (XXVII) PHOENIX HP22 25 (XXVIII) PHOENIX HP25 26 (XXIX) PHOENIX RAVEN 27 (XXX) SUNDANCE A-25 28 (XXXI) SUNDANCE BOA 29 (XXXII) SUNDANCE POINT BLANK DERRINGER 30 (XXXIII) TAURUS PT-22 31 (XXXIV) TAURUS PT-25 32 (XXXV) BRYCO 48, .221R 33 (XXXVI) BRYCO 48, .32ACP 34 (XXXVII) BRYCO 48, .380ACP 35 (XXXVIII) BRYCO 59, .380ACP 36 (XXXIX) BRYCO 59, .40 S&W 37 (XL) BRYCO 59, 9MM 38 (XLI) COLT MUSTANG POCKETL 39 (XLII) LORCIN L-32, .32ACP 40 (XLIII) LORCIN L-380, .380ACP 41 (XLIV) LORCIN L-9MM, 9MM 42 S 3. The superintendent of the division of state police, in consulta- 43 tion with the secretary of the treasury and the attorney general of the 44 United States, is directed to conduct ongoing tests and evaluations of 45 pistols and revolvers manufactured in this country to determine whether 46 such weapons satisfy the public safety standards relating to size, 47 design and performance established by the United States bureau of alco- 48 hol, tobacco, and firearms for the importation of firearms under the 49 provisions of the Gun Control Act of 1968 (18 U.S.C. Sect. 921, et 50 seq.). The superintendent shall compile a list of weapons that, when 51 tested and evaluated using these criteria, fail to satisfy these public 52 safety standards. The superintendent shall submit such list to the 53 legislature not later than one year after the effective date of this act 54 and shall submit an updated list of additional weapons, if any, annually 55 thereafter. Such list shall be made public and available upon request 56 provided, however, that the list of firearms compiled by the superinten- A. 3346 3 1 dent shall not have the force and effect of law unless such list, or any 2 part of such list, is thereafter enacted into law as a provision of the 3 penal law. 4 S 4. Section 265.20 of the penal law is amended by adding a new subdi- 5 vision e to read as follows: 6 E. THE TERMS "PISTOL" AND "REVOLVER" AS USED IN PARAGRAPHS THREE, 7 SEVEN-A, SEVEN-B, SEVEN-C, SEVEN-D, NINE, NINE-A, TWELVE, THIRTEEN, AND 8 THIRTEEN-A OF SUBDIVISION A OF THIS SECTION SHALL NOT INCLUDE A DANGER- 9 OUS FIREARM AS DEFINED IN SUBDIVISION TWENTY-FOUR OF SECTION 265.00 OF 10 THIS ARTICLE. 11 S 5. Subdivisions 1 and 3 of section 265.01 of the penal law, subdivi- 12 sion 1 as amended by chapter 257 of the laws of 2008 and subdivision 3 13 as amended by chapter 199 of the laws of 2006, are amended to read as 14 follows: 15 (1) He or she possesses any firearm OTHER THAN A DANGEROUS FIREARM, 16 electronic dart gun, electronic stun gun, gravity knife, switchblade 17 knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, 18 blackjack, bludgeon, plastic knuckles, metal knuckles, chuka stick, sand 19 bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung 20 Fu star"; or 21 (3) He or she knowingly has in his or her possession a rifle, shotgun 22 or firearm OTHER THAN A DANGEROUS FIREARM in or upon a building or 23 grounds, used for educational purposes, of any school, college or 24 university, except the forestry lands, wherever located, owned and main- 25 tained by the State University of New York college of environmental 26 science and forestry, or upon a school bus as defined in section one 27 hundred forty-two of the vehicle and traffic law, without the written 28 authorization of such educational institution; or 29 S 6. Subdivision 8 of section 265.02 of the penal law, as amended by 30 chapter 764 of the laws of 2005, is amended and a new subdivision 9 is 31 added to read as follows: 32 (8) Such person possesses a large capacity ammunition feeding 33 device[.]; OR 34 (9) SUCH PERSON POSSESSES ANY DANGEROUS FIREARM. 35 S 7. Subdivision 1 of section 265.08 of the penal law, as added by 36 chapter 233 of the laws of 1980, is amended to read as follows: 37 (1) possesses a deadly weapon, INCLUDING A DANGEROUS FIREARM, if the 38 weapon is a loaded weapon from which a shot, readily capable of produc- 39 ing death or other serious injury may be discharged; or 40 S 8. Paragraph (a) of subdivision 1 of section 265.09 of the penal 41 law, as amended by chapter 650 of the laws of 1996, is amended to read 42 as follows: 43 (a) possesses a deadly weapon, INCLUDING A DANGEROUS FIREARM, if the 44 weapon is a loaded weapon from which a shot, readily capable of produc- 45 ing death or other serious injury may be discharged; or 46 S 9. Subdivisions 1 and 2 of section 265.10 of the penal law, as 47 amended by chapter 257 of the laws of 2008, are amended to read as 48 follows: 49 1. Any person who manufactures or causes to be manufactured any 50 machine-gun, assault weapon, large capacity ammunition feeding device, 51 DANGEROUS FIREARM, or disguised gun is guilty of a class D felony. Any 52 person who manufactures or causes to be manufactured any switchblade 53 knife, gravity knife, pilum ballistic knife, metal knuckle knife, billy, 54 blackjack, bludgeon, plastic knuckles, metal knuckles, Kung Fu star, 55 chuka stick, sandbag, sandclub or slungshot is guilty of a class A 56 misdemeanor. A. 3346 4 1 2. Any person who transports or ships any machine-gun, firearm silenc- 2 er, assault weapon or large capacity ammunition feeding device, DANGER- 3 OUS FIREARM, or disguised gun, or who transports or ships as merchandise 4 five or more firearms, is guilty of a class D felony. Any person who 5 transports or ships as merchandise any firearm, other than an assault 6 weapon, switchblade knife, gravity knife, pilum ballistic knife, billy, 7 blackjack, bludgeon, plastic knuckles, metal knuckles, Kung Fu star, 8 chuka stick, sandbag or slungshot is guilty of a class A misdemeanor. 9 S 10. Paragraph 8 of subdivision a of section 265.20 of the penal law, 10 as amended by chapter 189 of the laws of 2000, is amended to read as 11 follows: 12 8. The manufacturer of machine-guns, assault weapons, large capacity 13 ammunition feeding devices, DANGEROUS FIREARMS, disguised guns, pilum 14 ballistic knives, switchblade or gravity knives, billies or blackjacks 15 as merchandise and the disposal and shipment thereof direct to a regu- 16 larly constituted or appointed state or municipal police department, 17 sheriff, policeman or other peace officer, or to a state prison, peni- 18 tentiary, workhouse, county jail or other institution for the detention 19 of persons convicted or accused of crime or held as witnesses in crimi- 20 nal cases, or to the military service of this state or of the United 21 States. 22 S 11. Paragraphs (b), (c) and (d) of subdivision 1 and paragraph (b) 23 and the opening paragraph of paragraph (c) of subdivision 2 of section 24 70.02 of the penal law, paragraph (b) of subdivision 1 and paragraph (b) 25 of subdivision 2 as separately amended by chapters 764 and 765 of the 26 laws of 2005, paragraphs (c) and (d) of subdivision 1 as amended by 27 chapter 7 of the laws of 2007, and the opening paragraph of paragraph 28 (c) of subdivision 2 as amended by chapter 764 of the laws of 2005, are 29 amended to read as follows: 30 (b) Class C violent felony offenses: an attempt to commit any of the 31 class B felonies set forth in paragraph (a); aggravated criminally 32 negligent homicide as defined in section 125.11, aggravated manslaughter 33 in the second degree as defined in section 125.21, aggravated sexual 34 abuse in the second degree as defined in section 130.67, assault on a 35 peace officer, police officer, fireman or emergency medical services 36 professional as defined in section 120.08, gang assault in the second 37 degree as defined in section 120.06, burglary in the second degree as 38 defined in section 140.25, robbery in the second degree as defined in 39 section 160.10, criminal possession of a weapon in the second degree as 40 defined in section 265.03, criminal use of a firearm in the second 41 degree as defined in section 265.08, criminal sale of a firearm in the 42 second degree as defined in section 265.12, criminal sale of a firearm 43 with the aid of a minor as defined in section 265.14, soliciting or 44 providing support for an act of terrorism in the first degree as defined 45 in section 490.15, hindering prosecution of terrorism in the second 46 degree as defined in section 490.30, and criminal possession of a chemi- 47 cal weapon or biological weapon in the third degree as defined in 48 section 490.37, AND CRIMINAL SALE OF A FIREARM TO A MINOR AS DEFINED IN 49 SECTION 265.16. 50 (c) Class D violent felony offenses: an attempt to commit any of the 51 class C felonies set forth in paragraph (b); reckless assault of a child 52 as defined in section 120.02, assault in the second degree as defined in 53 section 120.05, menacing a police officer or peace officer as defined in 54 section 120.18, stalking in the first degree, as defined in subdivision 55 one of section 120.60, rape in the second degree as defined in section 56 130.30, criminal sexual act in the second degree as defined in section A. 3346 5 1 130.45, sexual abuse in the first degree as defined in section 130.65, 2 course of sexual conduct against a child in the second degree as defined 3 in section 130.80, aggravated sexual abuse in the third degree as 4 defined in section 130.66, facilitating a sex offense with a controlled 5 substance as defined in section 130.90, criminal possession of a weapon 6 in the third degree as defined in subdivision five, six, seven [or], 7 eight OR NINE of section 265.02, criminal sale of a firearm in the third 8 degree as defined in section 265.11, intimidating a victim or witness in 9 the second degree as defined in section 215.16, soliciting or providing 10 support for an act of terrorism in the second degree as defined in 11 section 490.10, and making a terroristic threat as defined in section 12 490.20, falsely reporting an incident in the first degree as defined in 13 section 240.60, placing a false bomb or hazardous substance in the first 14 degree as defined in section 240.62, placing a false bomb or hazardous 15 substance in a sports stadium or arena, mass transportation facility or 16 enclosed shopping mall as defined in section 240.63, and aggravated 17 unpermitted use of indoor pyrotechnics in the first degree as defined in 18 section 405.18. 19 (d) Class E violent felony offenses: an attempt to commit any of the 20 felonies of criminal possession of a weapon in the third degree as 21 defined in subdivision five, six, seven [or], eight OR NINE of section 22 265.02 as a lesser included offense of that section as defined in 23 section 220.20 of the criminal procedure law, ATTEMPTED CRIMINAL SALE OF 24 A FIREARM IN THE THIRD DEGREE AS DEFINED IN SECTION 265.11 AS A LESSER 25 INCLUDED OFFENSE OF THAT SECTION AS DEFINED IN SECTION 220.20 OF THE 26 CRIMINAL PROCEDURE LAW, persistent sexual abuse as defined in section 27 130.53, aggravated sexual abuse in the fourth degree as defined in 28 section 130.65-a, falsely reporting an incident in the second degree as 29 defined in section 240.55 and placing a false bomb or hazardous 30 substance in the second degree as defined in section 240.61. 31 (b) Except as provided in paragraph (b-1) of this subdivision, subdi- 32 vision six of section 60.05 and subdivision four of this section, the 33 sentence imposed upon a person who stands convicted of a class D violent 34 felony offense, other than the offense of criminal possession of a weap- 35 on in the third degree as defined in subdivision [four,] five, seven 36 [or], eight, OR NINE of section 265.02 or criminal sale of a firearm in 37 the third degree as defined in section 265.11, must be in accordance 38 with the applicable provisions of this chapter relating to sentencing 39 for class D felonies provided, however, that where a sentence of impri- 40 sonment is imposed which requires a commitment to the state department 41 of correctional services, such sentence shall be a determinate sentence 42 in accordance with paragraph (c) of subdivision three of this section. 43 Except as provided in subdivision six of section 60.05, the sentence 44 imposed upon a person who stands convicted of the class D violent felony 45 offenses of criminal possession of a weapon in the third degree as 46 defined in subdivision [four,] five, seven [or], eight, OR NINE of 47 section 265.02, OR THE CLASS E VIOLENT FELONY OFFENSE OF ATTEMPTED CRIM- 48 INAL SALE OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN SECTION 265.11, 49 criminal sale of a firearm in the third degree as defined in section 50 265.11 or the class E violent felonies of attempted criminal possession 51 of a weapon in the third degree as defined in subdivision [four,] five, 52 seven or eight of section 265.02 must be a sentence to a determinate 53 period of imprisonment, or, in the alternative, a definite sentence of 54 imprisonment for a period of no less than one year, except that: A. 3346 6 1 S 12. Subparagraph (iv) of paragraph (d) of subdivision 5 of section 2 220.10 of the criminal procedure law, as amended by chapter 189 of the 3 laws of 2000, is amended to read as follows: 4 (iv) Where the indictment charges the class D violent felony offenses 5 of criminal possession of a weapon in the third degree as defined in 6 [subdivision four of section 265.02 of the penal law and the provisions 7 of subparagraph (iii) of this paragraph do not apply, or] subdivision 8 five, seven [or], eight, OR NINE of section 265.02 of the penal law, 9 then a plea of guilty must include at least a plea of guilty to a class 10 E violent felony offense. 11 S 13. Subparagraph (v) of paragraph (b) of subdivision 3 of section 12 220.30 of the criminal procedure law, as amended by chapter 189 of the 13 laws of 2000, is amended to read as follows: 14 (v) A plea of guilty, whether to the entire indictment or part of the 15 indictment, for any crime other than a violent felony offense as defined 16 in section 70.02 of the penal law, may not be accepted on the condition 17 that it constitutes a complete disposition of one or more other indict- 18 ments against the defendant wherein is charged the class D violent felo- 19 ny offenses of criminal possession of a weapon in the third degree as 20 defined in subdivision [four,] five, seven [or], eight, OR NINE of 21 section 265.02 of the penal law; provided, however, a plea of guilty, 22 whether to the entire indictment or part of the indictment, for the 23 class A misdemeanor of criminal possession of a weapon in the fourth 24 degree as defined in subdivision one of section 265.01 of the penal law 25 may be accepted on the condition that it constitutes a complete disposi- 26 tion of one or more other indictments against the defendant wherein is 27 charged the class [D] B violent felony offense of criminal possession of 28 a weapon in the [third] SECOND degree as defined in subdivision [four] 29 THREE of section [265.02] 265.03 of the penal law when the defendant has 30 not been previously convicted of a class A misdemeanor defined in the 31 penal law in the five years preceding the commission of the offense. 32 S 14. The opening paragraph of subdivision 2 of section 400.00 of the 33 penal law, as amended by chapter 189 of the laws of 2000, is amended to 34 read as follows: 35 A license for gunsmith or dealer in firearms OTHER THAN DANGEROUS 36 FIREARMS shall be issued to engage in such business. A license for a 37 pistol or revolver, other than an assault weapon or a disguised gun, 38 THAT IS NOT A DANGEROUS FIREARM shall be issued to (a) have and possess 39 in his dwelling by a householder; (b) have and possess in his place of 40 business by a merchant or storekeeper; (c) have and carry concealed 41 while so employed by a messenger employed by a banking institution or 42 express company; (d) have and carry concealed by a justice of the 43 supreme court in the first or second judicial departments, or by a judge 44 of the New York city civil court or the New York city criminal court; 45 (e) have and carry concealed while so employed by a regular employee of 46 an institution of the state, or of any county, city, town or village, 47 under control of a commissioner of correction of the city or any warden, 48 superintendent or head keeper of any state prison, penitentiary, work- 49 house, county jail or other institution for the detention of persons 50 convicted or accused of crime or held as witnesses in criminal cases, 51 provided that application is made therefor by such commissioner, warden, 52 superintendent or head keeper; (f) have and carry concealed, without 53 regard to employment or place of possession, by any person when proper 54 cause exists for the issuance thereof; and (g) have, possess, collect 55 and carry antique pistols which are defined as follows: (i) any single 56 shot, muzzle loading pistol with a matchlock, flintlock, percussion cap, A. 3346 7 1 or similar type of ignition system manufactured in or before l898, which 2 is not designed for using rimfire or conventional centerfire fixed ammu- 3 nition; and (ii) any replica of any pistol described in clause (i) here- 4 of if such replica-- 5 S 15. The superintendent of the division of state police shall under- 6 take the following activities: (a) publicizing the provisions of this 7 act banning the possession and use of dangerous firearms, (b) providing 8 advice to lawful gun owners as to how they can comply with the 9 provisions of this act, and (c) taking such other actions consistent 10 with the purposes of this act which will facilitate compliance with the 11 ban on dangerous firearms and result in the lowest possible cost to 12 lawful gun owners to achieve such compliance. 13 S 16. This act shall take effect on the three hundred sixtieth day 14 after it shall have become a law, provided however, that the division of 15 state police is authorized and directed to immediately conduct testing 16 and evaluations as required in section three of this act and to publi- 17 cize the provisions of this act and assist lawful gun owners as required 18 under section fifteen of this act.