S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3724
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 27, 2015
                                      ___________
       Introduced  by  M.  of  A.  SCARBOROUGH -- read once and referred to the
         Committee on Codes
       AN ACT to amend the penal law, in relation to criminal sale,  possession
         and use of firearms
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The closing paragraph of section 265.01 of the  penal  law,
    2  as  amended  by  chapter  1  of  the laws of 2013, is amended to read as
    3  follows:
    4    Criminal possession of a weapon in the fourth  degree  is  a  class  A
    5  misdemeanor;  EXCEPT  THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE
    6  SHALL BE A CLASS D FELONY.
    7    S 2. The closing paragraph of section 265.02  of  the  penal  law,  as
    8  amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
    9  follows:
   10    Criminal possession of a weapon in the third degree is a class D felo-
   11  ny; EXCEPT THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE SHALL BE A
   12  CLASS C FELONY.
   13    S 3. The closing paragraph of section 265.03  of  the  penal  law,  as
   14  amended  by  chapter  742  of  the  laws  of 2006, is amended to read as
   15  follows:
   16    Criminal possession of a weapon in the second degree is a class [C]  B
   17  felony.
   18    S  4.  The  closing  paragraph  of section 265.04 of the penal law, as
   19  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   20  follows:
   21    Criminal possession of a weapon in the first degree is a class B felo-
   22  ny; EXCEPT THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE SHALL BE A
   23  CLASS A FELONY.
   24    S  5.  The  closing  paragraph  of section 265.08 of the penal law, as
   25  added by chapter 233 of the laws of 1980, is amended to read as follows:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD08192-01-5
       A. 3724                             2
    1    Criminal use of a firearm in the second degree is a class [C] B  felo-
    2  ny.
    3    S  6.  The closing paragraph of subdivision 1 of section 265.09 of the
    4  penal law, as amended by chapter 650 of the laws of 1996, is amended  to
    5  read as follows:
    6    Criminal use of a firearm in the first degree is a class [B] A felony.
    7    S 7. Section 265.10 of the penal law, as amended by chapter 189 of the
    8  laws of 2000, subdivisions 1 and 2 as amended by chapter 257 of the laws
    9  of 2008, is amended to read as follows:
   10  S 265.10 Manufacture,  transport,  disposition and defacement of weapons
   11             and dangerous instruments and appliances.
   12    1. Any person who  manufactures  or  causes  to  be  manufactured  any
   13  machine-gun, assault weapon, large capacity ammunition feeding device or
   14  disguised gun is guilty of a class [D] C felony. Any person who manufac-
   15  tures or causes to be manufactured any switchblade knife, gravity knife,
   16  pilum  ballistic knife, metal knuckle knife, billy, blackjack, bludgeon,
   17  plastic knuckles, metal knuckles, Kung Fu star,  chuka  stick,  sandbag,
   18  sandclub or slungshot is guilty of a class A misdemeanor.
   19    2. Any person who transports or ships any machine-gun, firearm silenc-
   20  er,  assault  weapon  or  large  capacity  ammunition  feeding device or
   21  disguised gun, or who transports or ships as merchandise  five  or  more
   22  firearms,  is  guilty of a class [D] C felony. Any person who transports
   23  or ships as merchandise any firearm, other than an  assault  weapon,  IS
   24  GUILTY  OF  A  CLASS  D  FELONY.  ANY  PERSON WHO TRANSPORTS OR SHIPS AS
   25  MERCHANDISE ANY switchblade knife, gravity knife, pilum ballistic knife,
   26  billy, blackjack, bludgeon, plastic knuckles, metal  knuckles,  Kung  Fu
   27  star, chuka stick, sandbag or slungshot is guilty of a class A misdemea-
   28  nor.
   29    3.  Any  person who disposes of any machine-gun, assault weapon, large
   30  capacity ammunition feeding device or firearm silencer is  guilty  of  a
   31  class  [D]  C  felony. Any person who knowingly buys, receives, disposes
   32  of, or conceals a machine-gun, firearm, large capacity ammunition  feed-
   33  ing  device,  rifle or shotgun which has been defaced for the purpose of
   34  concealment or prevention of the detection of a crime or misrepresenting
   35  the identity of such machine-gun,  firearm,  large  capacity  ammunition
   36  feeding device, rifle or shotgun is guilty of a class [D] C felony.
   37    4.  Any  person  who  disposes  of  any of the weapons, instruments or
   38  appliances specified in subdivision one  of  section  265.01,  except  a
   39  firearm, is guilty of a class A misdemeanor, and he is guilty of a class
   40  D felony if he has previously been convicted of any crime.
   41    5.  Any person who disposes of any of the weapons, instruments, appli-
   42  ances or substances specified in section  265.05  to  any  other  person
   43  under the age of sixteen years is guilty of a class A misdemeanor.
   44    6.  Any  person  who  wilfully defaces any machine-gun, large capacity
   45  ammunition feeding device or firearm is guilty of a class [D] C felony.
   46    7. Any person, other than a wholesale dealer, or gunsmith or dealer in
   47  firearms  duly  licensed  pursuant  to  section  400.00,   lawfully   in
   48  possession  of a firearm, who disposes of the same without first notify-
   49  ing in writing the licensing officer in the city of New York  and  coun-
   50  ties  of  Nassau  and  Suffolk  and elsewhere in the state the executive
   51  department, division of state police, Albany, is guilty of  a  class  [A
   52  misdemeanor] D FELONY.
   53    S  8.  The  closing  paragraph  of section 265.11 of the penal law, as
   54  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   55  follows:
       A. 3724                             3
    1    Criminal  sale of a firearm in the third degree is a class [D] C felo-
    2  ny.
    3    S  9.  The  closing  paragraph  of section 265.12 of the penal law, as
    4  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
    5  follows:
    6    Criminal sale of a firearm in the second degree is a class [C] B felo-
    7  ny.
    8    S  10.  The  closing  paragraph of section 265.13 of the penal law, as
    9  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   10  follows:
   11    Criminal  sale of a firearm in the first degree is a class [B] A felo-
   12  ny.
   13    S 11. The closing paragraph of section 265.14 of  the  penal  law,  as
   14  amended  by  chapter  654  of  the  laws  of 1998, is amended to read as
   15  follows:
   16    Criminal sale of a firearm with the aid of a minor is a  class  [C]  B
   17  felony.
   18    S  12.  The  closing  paragraph of section 265.16 of the penal law, as
   19  amended by chapter 654 of the laws  of  1998,  is  amended  to  read  as
   20  follows:
   21    Criminal sale of a firearm to a minor is a class [C] B felony.
   22    S  13.  Section  265.35  of  the penal law, subdivisions 1, 2 and 3 as
   23  renumbered by chapter 1041 of the laws of 1974, is amended  to  read  as
   24  follows:
   25  S 265.35 Prohibited use of weapons.
   26    1.  Any  person  hunting  with a dangerous weapon in any county wholly
   27  embraced within the territorial limits of a city is guilty of a class  A
   28  misdemeanor.  WHERE  SUCH  DANGEROUS  WEAPON IS A FIREARM SUCH PERSON IS
   29  GUILTY OF A CLASS D FELONY.
   30    2. Any person who wilfully discharges a loaded firearm  or  any  other
   31  gun,  the  propelling  force of which is gunpowder, at an aircraft while
   32  such aircraft is in motion in the air or in motion  or  stationary  upon
   33  the ground, or at any railway or street railroad train as defined by the
   34  public  service law, or at a locomotive, car, bus or vehicle standing or
   35  moving upon such railway, railroad or public highway,  is  guilty  of  a
   36  class  [D]  C  felony if thereby the safety of any person is endangered,
   37  and in every other case, of a class [E] D felony.
   38    3. Any person who, otherwise than in self defense or in the  discharge
   39  of  official duty, (a) wilfully discharges any species of firearms, air-
   40  gun or other weapon, or throws any other deadly  missile,  either  in  a
   41  public place, or in any place where there is any person to be endangered
   42  thereby,  or,  in Putnam county, within one-quarter mile of any occupied
   43  school building other than  under  supervised  instruction  by  properly
   44  authorized  instructors  although  no  injury  to any person ensues; (b)
   45  intentionally, without malice, points or aims any firearm or  any  other
   46  gun,  the propelling force of which is gunpowder, at or toward any other
   47  person; (c) discharges, without injury to any other person, firearms  or
   48  any other guns, the propelling force of which is gunpowder, while inten-
   49  tionally  without malice, aimed at or toward any person; or (d) maims or
   50  injures any other person by the discharge of any firearm  or  any  other
   51  gun, the propelling force of which is gunpowder, pointed or aimed inten-
   52  tionally,  but  without malice, at any such person, is guilty of a class
   53  [A misdemeanor] D FELONY.
   54    S 14. Subdivision 1 of section 70.02 of the penal law,  as  separately
   55  amended  by  chapters  764 and 765 of the laws of 2005, paragraph (a) as
   56  amended by chapter 320 of the laws of 2006, paragraphs (b)  and  (c)  as
       A. 3724                             4
    1  amended by chapter 1 of the laws of 2013 and paragraph (d) as amended by
    2  chapter 7 of the laws of 2007, is amended to read as follows:
    3    1. Definition of a violent felony offense. A violent felony offense is
    4  A  CLASS  A  VIOLENT FELONY OFFENSE, a class B violent felony offense, a
    5  class C violent felony offense, a class D violent felony offense,  or  a
    6  class E violent felony offense, defined as follows:
    7    (a)  CLASS  A VIOLENT FELONY OFFENSES: CRIMINAL POSSESSION OF A WEAPON
    8  IN THE FIRST DEGREE AS DEFINED IN SECTION 265.04 WHERE THE WEAPON  IS  A
    9  FIREARM,  CRIMINAL  USE  OF  A FIREARM IN THE FIRST DEGREE AS DEFINED IN
   10  SECTION 265.09, AND CRIMINAL SALE OF A FIREARM IN THE  FIRST  DEGREE  AS
   11  DEFINED IN SECTION 265.13.
   12    (B)  Class  B  violent felony offenses: an attempt to commit the class
   13  A-I felonies of murder in  the  second  degree  as  defined  in  section
   14  125.25, kidnapping in the first degree as defined in section 135.25, and
   15  arson  in the first degree as defined in section 150.20; manslaughter in
   16  the first degree as defined in section 125.20,  aggravated  manslaughter
   17  in  the  first  degree  as  defined in section 125.22, rape in the first
   18  degree as defined in section 130.35, criminal sexual act  in  the  first
   19  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
   20  first degree as defined in section  130.70,  course  of  sexual  conduct
   21  against  a  child  in  the  first  degree  as defined in section 130.75;
   22  assault in the first degree as defined in section 120.10, kidnapping  in
   23  the  second  degree  as defined in section 135.20, burglary in the first
   24  degree as defined in section 140.30,  arson  in  the  second  degree  as
   25  defined  in  section  150.15,  robbery in the first degree as defined in
   26  section 160.15, incest in the first degree as defined in section 255.27,
   27  criminal possession of a weapon  in  the  first  degree  as  defined  in
   28  section  265.04  WHERE  THE  WEAPON IS NOT A FIREARM, [criminal use of a
   29  firearm in the first degree as defined in section 265.09, criminal  sale
   30  of a firearm in the first degree as defined in section 265.13,] CRIMINAL
   31  POSSESSION  OF  A  WEAPON  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION
   32  265.03, CRIMINAL USE OF A FIREARM IN THE SECOND  DEGREE  AS  DEFINED  IN
   33  SECTION  265.08,  CRIMINAL  SALE  OF  A  FIREARM IN THE SECOND DEGREE AS
   34  DEFINED IN SECTION 265.12, CRIMINAL SALE OF A FIREARM WITH THE AID OF  A
   35  MINOR  AS  DEFINED  IN  SECTION 265.14, aggravated assault upon a police
   36  officer or a peace officer as defined in section 120.11, gang assault in
   37  the first degree as defined in section 120.07, intimidating a victim  or
   38  witness  in  the  first  degree  as defined in section 215.17, hindering
   39  prosecution of terrorism in the  first  degree  as  defined  in  section
   40  490.35, criminal possession of a chemical weapon or biological weapon in
   41  the  second  degree  as defined in section 490.40, and criminal use of a
   42  chemical weapon or biological weapon in the third degree as  defined  in
   43  section 490.47.
   44    [(b)] (C) Class C violent felony offenses: an attempt to commit any of
   45  the  class  B felonies set forth in paragraph [(a)] (B) of this subdivi-
   46  sion; aggravated criminally negligent homicide  as  defined  in  section
   47  125.11,  aggravated  manslaughter  in  the  second  degree as defined in
   48  section 125.21, aggravated sexual abuse in the second degree as  defined
   49  in  section  130.67, assault on a peace officer, police officer, fireman
   50  or emergency medical services professional as defined in section 120.08,
   51  assault on a judge as defined in section 120.09,  gang  assault  in  the
   52  second  degree  as defined in section 120.06, strangulation in the first
   53  degree as defined in section 121.13, burglary in the  second  degree  as
   54  defined  in  section  140.25, robbery in the second degree as defined in
   55  section 160.10, [criminal possession of a weapon in the second degree as
   56  defined in section 265.03, criminal use  of  a  firearm  in  the  second
       A. 3724                             5
    1  degree  as  defined in section 265.08, criminal sale of a firearm in the
    2  second degree as defined in section 265.12, criminal sale of  a  firearm
    3  with  the  aid  of  a  minor  as  defined  in  section 265.14,] CRIMINAL
    4  POSSESSION  OF  A  WEAPON  IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION
    5  FIVE, SIX, SEVEN OR EIGHT OF  SECTION  265.02  WHERE  THE  WEAPON  IS  A
    6  FIREARM,  CRIMINAL  SALE  OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN
    7  SECTION 265.11, aggravated criminal possession of a weapon as defined in
    8  section 265.19, soliciting or providing support for an act of  terrorism
    9  in  the first degree as defined in section 490.15, hindering prosecution
   10  of terrorism in the second degree as  defined  in  section  490.30,  and
   11  criminal  possession  of  a  chemical weapon or biological weapon in the
   12  third degree as defined in section 490.37.
   13    [(c)] (D) Class D violent felony offenses: an attempt to commit any of
   14  the class C felonies set forth in paragraph [(b)] (C); reckless  assault
   15  of a child as defined in section 120.02, assault in the second degree as
   16  defined in section 120.05, menacing a police officer or peace officer as
   17  defined  in  section 120.18, stalking in the first degree, as defined in
   18  subdivision one of section 120.60, strangulation in the second degree as
   19  defined in section 121.12, rape in  the  second  degree  as  defined  in
   20  section  130.30,  criminal sexual act in the second degree as defined in
   21  section 130.45, sexual abuse in the first degree as defined  in  section
   22  130.65, course of sexual conduct against a child in the second degree as
   23  defined  in  section 130.80, aggravated sexual abuse in the third degree
   24  as defined  in  section  130.66,  facilitating  a  sex  offense  with  a
   25  controlled  substance  as defined in section 130.90, criminal possession
   26  of a weapon in the [third] FOURTH  degree  as  defined  in  [subdivision
   27  five,  six,  seven, eight, nine or ten of] section [265.02] 265.01 WHERE
   28  THE WEAPON IS A FIREARM, [criminal sale of a firearm in the third degree
   29  as defined in section 265.11,] AN ATTEMPT TO COMMIT ANY OF THE  FELONIES
   30  OF  CRIMINAL  POSSESSION  IN  THE THIRD DEGREE AS DEFINED IN SUBDIVISION
   31  FIVE, SIX, SEVEN OR EIGHT OF SECTION 265.02 AS A LESSER INCLUDED OFFENSE
   32  OF THAT SECTION AS DEFINED IN SECTION 220.20 OF THE  CRIMINAL  PROCEDURE
   33  LAW, intimidating a victim or witness in the second degree as defined in
   34  section  215.16, soliciting or providing support for an act of terrorism
   35  in the second degree as defined in section 490.10, and making a  terror-
   36  istic threat as defined in section 490.20, falsely reporting an incident
   37  in  the  first degree as defined in section 240.60, placing a false bomb
   38  or hazardous substance in the first degree as defined in section 240.62,
   39  placing a false bomb or hazardous  substance  in  a  sports  stadium  or
   40  arena, mass transportation facility or enclosed shopping mall as defined
   41  in section 240.63, and aggravated unpermitted use of indoor pyrotechnics
   42  in the first degree as defined in section 405.18.
   43    [(d)] (E) Class E violent felony offenses: an attempt to commit any of
   44  the  felonies  of  criminal possession of a weapon in the [third] FOURTH
   45  degree as defined in [subdivision five, six, seven or eight of]  section
   46  [265.02]  265.01  WHERE  THE  WEAPON  IS  A FIREARM as a lesser included
   47  offense of that section as defined in section  220.20  of  the  criminal
   48  procedure  law,  persistent  sexual  abuse as defined in section 130.53,
   49  aggravated sexual abuse in the  fourth  degree  as  defined  in  section
   50  130.65-a,  falsely reporting an incident in the second degree as defined
   51  in section 240.55 and placing a false bomb or hazardous substance in the
   52  second degree as defined in section 240.61.
   53    S 15. Subdivision 3 of section 70.02 of the penal law, as  amended  by
   54  chapter  765  of  the laws of 2005, paragraphs (b) and (c) as amended by
   55  chapter 1 of the laws of 2013, is amended to read as follows:
       A. 3724                             6
    1    3. Term of sentence. The term of a determinate sentence for a  violent
    2  felony offense must be fixed by the court as follows:
    3    (a) FOR A CLASS A FELONY, THE TERM MUST BE AT LEAST TEN YEARS AND MUST
    4  NOT EXCEED TWENTY-FIVE YEARS;
    5    (B)  For  a  class  B felony, the term must be at least five years and
    6  must not exceed twenty-five years, provided, however, that the term must
    7  be:  (i) at least ten years and must not exceed thirty years  where  the
    8  sentence is for the crime of aggravated assault upon a police officer or
    9  peace  officer as defined in section 120.11 of this chapter; and (ii) at
   10  least ten years and must not exceed thirty years where the  sentence  is
   11  for  the crime of aggravated manslaughter in the first degree as defined
   12  in section 125.22 of this chapter;
   13    [(b)] (C) For a class C felony, the term must be at  least  three  and
   14  one-half  years  and  must  not exceed fifteen years, provided, however,
   15  that the term must be: (i) at least seven  years  and  must  not  exceed
   16  twenty  years  where  the  sentence  is  for  the  crime  of  aggravated
   17  manslaughter in the second degree as defined in section 125.21  of  this
   18  chapter;  (ii)  at  least  seven  years and must not exceed twenty years
   19  where the sentence is for the crime of attempted aggravated assault upon
   20  a police officer or peace officer as defined in section 120.11  of  this
   21  chapter;  (iii)  at  least  three and one-half years and must not exceed
   22  twenty years where the sentence is for the crime of aggravated criminal-
   23  ly negligent homicide as defined in section 125.11 of this chapter;  and
   24  (iv)  at  least  five  years and must not exceed fifteen years where the
   25  sentence is imposed for the crime of aggravated criminal possession of a
   26  weapon as defined in section 265.19 of this chapter;
   27    [(c)] (D) For a class D felony, the term must be at  least  two  years
   28  and  must  not exceed seven years, provided, however, that the term must
   29  be: (i) at least two years and must not exceed  eight  years  where  the
   30  sentence  is for the crime of menacing a police officer or peace officer
   31  as defined in section 120.18 of this chapter; and (ii) at  least  [three
   32  and  one-half]  FIVE years and must not exceed [seven] EIGHT years where
   33  the sentence is imposed for the crime of criminal possession of a weapon
   34  in the [third] FOURTH degree as defined in [subdivision ten of]  section
   35  [265.02] 265.01 of this chapter IF SUCH WEAPON IS A FIREARM;
   36    [(d)]  (E)  For  a  class  E felony, the term must be at least one and
   37  one-half years and must not exceed four years.
   38    S 16. Paragraph (c) of subdivision 2 of section  70.02  of  the  penal
   39  law,  as  amended  by chapter 764 of the laws of 2005, the opening para-
   40  graph as amended by chapter 1 of the laws of 2013, is amended to read as
   41  follows:
   42    (c) Except as provided  in  subdivision  six  of  section  60.05,  the
   43  sentence  imposed  upon a person who stands convicted of the class [D] C
   44  violent felony offenses of criminal possession of a weapon in the  third
   45  degree  as  defined in subdivision five, seven, eight or nine of section
   46  265.02, criminal sale of a firearm in the third  degree  as  defined  in
   47  section  265.11  or  the  class E violent felonies of attempted criminal
   48  possession of a weapon in the third degree  as  defined  in  subdivision
   49  five,  seven,  eight  or  nine of section 265.02 must be a sentence to a
   50  determinate period of imprisonment, or, in the alternative,  a  definite
   51  sentence  of  imprisonment for a period of no less than one year, except
   52  that:
   53    (i) the court may impose any other sentence authorized by law  upon  a
   54  person  who  has  not  been previously convicted in the five years imme-
   55  diately preceding the commission of the offense for a class A  misdemea-
   56  nor  defined  in  this chapter, if the court having regard to the nature
       A. 3724                             7
    1  and circumstances of the crime and to the history and character  of  the
    2  defendant,  finds on the record that such sentence would be unduly harsh
    3  and that the alternative sentence would be consistent with public safety
    4  and does not deprecate the seriousness of the crime; and
    5    (ii)  the  court may apply the provisions of paragraphs (b) and (c) of
    6  subdivision four of this section when imposing a sentence upon a  person
    7  who  has  previously  been convicted of a class A misdemeanor defined in
    8  this chapter in the five years immediately preceding the  commission  of
    9  the offense.
   10    S  17.  Paragraph  (a)  of subdivision 2 of section 70.02 of the penal
   11  law, as amended by chapter 764 of the laws of 2005, is amended  to  read
   12  as follows:
   13    (a)  Except  as  provided  in  subdivision  six  of section 60.05, the
   14  sentence imposed upon a person who stands convicted of a class A,  B  or
   15  class  C violent felony offense must be a determinate sentence of impri-
   16  sonment which shall be in whole or half years. The term of such sentence
   17  must be in accordance with the provisions of subdivision three  of  this
   18  section.
   19    S  18.  Paragraph  (a)  of subdivision 2 of section 70.02 of the penal
   20  law, as amended by chapter 233 of the laws of 1980, is amended  to  read
   21  as follows:
   22    (a) The sentence imposed upon a person who stands convicted of a class
   23  A, B or class C violent felony offense must be an indeterminate sentence
   24  of  imprisonment.  Except  as  provided  in  subdivision five of section
   25  60.05, the maximum term of such sentence must be in accordance with  the
   26  provisions  of  subdivision three of this section and the minimum period
   27  of imprisonment under such sentence must be in accordance with  subdivi-
   28  sion four of this section.
   29    S  19.  This  act  shall  take  effect  immediately and shall apply to
   30  offenses committed on and after such date; provided that the  amendments
   31  to paragraph (a) of subdivision 2 of section 70.02 of the penal law made
   32  by  section seventeen of this act shall be subject to the expiration and
   33  reversion of such paragraph  when  upon  such  date  the  provisions  of
   34  section eighteen of this act shall take effect.