Bill Text: NY S07843 | 2011-2012 | General Assembly | Introduced


Bill Title: Increases penalties for all offenses involving the possession, use, sale or purchase of firearms.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2012-08-24 - REFERRED TO RULES [S07843 Detail]

Download: New_York-2011-S07843-Introduced.html
                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7843
                                   I N  S E N A T E
                                    August 24, 2012
                                      ___________
       Introduced  by  Sen.  SMITH  -- read twice and ordered printed, and when
         printed to be committed to the Committee on Rules
       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  added  by  chapter  1041  of the laws of 1974, 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:
   26    Criminal use of a firearm in the second degree is a class [C] B  felo-
   27  ny.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD16461-02-2
       S. 7843                             2
    1    S  6.  The closing paragraph of subdivision 1 of section 265.09 of the
    2  penal law, as amended by chapter 650 of the laws of 1996, is amended  to
    3  read as follows:
    4    Criminal use of a firearm in the first degree is a class [B] A felony.
    5    S 7. Section 265.10 of the penal law, as amended by chapter 189 of the
    6  laws of 2000, subdivisions 1 and 2 as amended by chapter 257 of the laws
    7  of 2008, is amended to read as follows:
    8  S 265.10 Manufacture,  transport,  disposition and defacement of weapons
    9             and dangerous instruments and appliances.
   10    1. Any person who  manufactures  or  causes  to  be  manufactured  any
   11  machine-gun, assault weapon, large capacity ammunition feeding device or
   12  disguised gun is guilty of a class [D] C felony. Any person who manufac-
   13  tures or causes to be manufactured any switchblade knife, gravity knife,
   14  pilum  ballistic knife, metal knuckle knife, billy, blackjack, bludgeon,
   15  plastic knuckles, metal knuckles, Kung Fu star,  chuka  stick,  sandbag,
   16  sandclub or slungshot is guilty of a class A misdemeanor.
   17    2. Any person who transports or ships any machine-gun, firearm silenc-
   18  er,  assault  weapon  or  large  capacity  ammunition  feeding device or
   19  disguised gun, or who transports or ships as merchandise  five  or  more
   20  firearms,  is  guilty of a class [D] C felony. Any person who transports
   21  or ships as merchandise any firearm, other than an  assault  weapon,  IS
   22  GUILTY  OF  A  CLASS  D  FELONY,  ANY  PERSON WHO TRANSPORTS OR SHIPS AS
   23  MERCHANDISE ANY switchblade knife, gravity knife, pilum ballistic knife,
   24  billy, blackjack, bludgeon, plastic knuckles, metal  knuckles,  Kung  Fu
   25  star, chuka stick, sandbag or slungshot is guilty of a class A misdemea-
   26  nor.
   27    3.  Any  person who disposes of any machine-gun, assault weapon, large
   28  capacity ammunition feeding device or firearm silencer is  guilty  of  a
   29  class  [D]  C  felony. Any person who knowingly buys, receives, disposes
   30  of, or conceals a machine-gun, firearm, large capacity ammunition  feed-
   31  ing  device,  rifle or shotgun which has been defaced for the purpose of
   32  concealment or prevention of the detection of a crime or misrepresenting
   33  the identity of such machine-gun,  firearm,  large  capacity  ammunition
   34  feeding device, rifle or shotgun is guilty of a class [D] C felony.
   35    4.  Any  person  who  disposes  of  any of the weapons, instruments or
   36  appliances specified in subdivision one  of  section  265.01,  except  a
   37  firearm, is guilty of a class A misdemeanor, and he is guilty of a class
   38  D felony if he has previously been convicted of any crime.
   39    5.  Any person who disposes of any of the weapons, instruments, appli-
   40  ances or substances specified in section  265.05  to  any  other  person
   41  under the age of sixteen years is guilty of a class A misdemeanor.
   42    6.  Any  person  who  wilfully defaces any machine-gun, large capacity
   43  ammunition feeding device or firearm is guilty of a class [D] C felony.
   44    7. Any person, other than a wholesale dealer, or gunsmith or dealer in
   45  firearms  duly  licensed  pursuant  to  section  400.00,   lawfully   in
   46  possession  of a firearm, who disposes of the same without first notify-
   47  ing in writing the licensing officer in the city of New York  and  coun-
   48  ties  of  Nassau  and  Suffolk  and elsewhere in the state the executive
   49  department, division of state police, Albany, is guilty of  a  class  [A
   50  misdemeanor] D FELONY.
   51    S  8.  The  closing  paragraph  of section 265.11 of the penal law, as
   52  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   53  follows:
   54    Criminal  sale of a firearm in the third degree is a class [D] C felo-
   55  ny.
       S. 7843                             3
    1    S 9. The closing paragraph of section 265.12  of  the  penal  law,  as
    2  amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
    3  follows:
    4    Criminal sale of a firearm in the second degree is a class [C] B felo-
    5  ny.
    6    S  10.  The  closing  paragraph of section 265.13 of the penal law, as
    7  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
    8  follows:
    9    Criminal  sale of a firearm in the first degree is a class [B] A felo-
   10  ny.
   11    S 11. The closing paragraph of section 265.14 of  the  penal  law,  as
   12  amended  by  chapter  654  of  the  laws  of 1998, is amended to read as
   13  follows:
   14    Criminal sale of a firearm with the aid of a minor is a  class  [C]  B
   15  felony.
   16    S  12.  The  closing  paragraph of section 265.16 of the penal law, as
   17  amended by chapter 654 of the laws  of  1998,  is  amended  to  read  as
   18  follows:
   19    Criminal sale of a firearm to a minor is a class [C] B felony.
   20    S  13.  The  closing  paragraph of section 265.17 of the penal law, as
   21  added by chapter 189 of the laws of 2000, is amended to read as follows:
   22    Criminal purchase of a weapon is a class [A misdemeanor] D FELONY.
   23    S 14. Section 265.35 of the penal law, subdivisions  1,  2  and  3  as
   24  renumbered  by  chapter  1041 of the laws of 1974, is amended to read as
   25  follows:
   26  S 265.35 Prohibited use of weapons.
   27    1. Any person hunting with a dangerous weapon  in  any  county  wholly
   28  embraced  within the territorial limits of a city is guilty of a class A
   29  misdemeanor. WHERE SUCH DANGEROUS WEAPON IS A  FIREARM  SUCH  PERSON  IS
   30  GUILTY OF A CLASS D FELONY.
   31    2.  Any  person  who wilfully discharges a loaded firearm or any other
   32  gun, the propelling force of which is gunpowder, at  an  aircraft  while
   33  such  aircraft  is  in motion in the air or in motion or stationary upon
   34  the ground, or at any railway or street railroad train as defined by the
   35  public service law, or at a locomotive, car, bus or vehicle standing  or
   36  moving  upon  such  railway,  railroad or public highway, is guilty of a
   37  class [D] C felony if thereby the safety of any  person  is  endangered,
   38  and in every other case, of a class [E] D felony.
   39    3.  Any person who, otherwise than in self defense or in the discharge
   40  of official duty, (a) wilfully discharges any species of firearms,  air-
   41  gun  or  other  weapon,  or throws any other deadly missile, either in a
   42  public place, or in any place where there is any person to be endangered
   43  thereby, or, in Putnam county, within one-quarter mile of  any  occupied
   44  school  building  other  than  under  supervised instruction by properly
   45  authorized instructors although no injury  to  any  person  ensues;  (b)
   46  intentionally,  without  malice, points or aims any firearm or any other
   47  gun, the propelling force of which is gunpowder, at or toward any  other
   48  person;  (c) discharges, without injury to any other person, firearms or
   49  any other guns, the propelling force of which is gunpowder, while inten-
   50  tionally without malice, aimed at or toward any person; or (d) maims  or
   51  injures  any  other  person by the discharge of any firearm or any other
   52  gun, the propelling force of which is gunpowder, pointed or aimed inten-
   53  tionally, but without malice, at any such person, is guilty of  a  class
   54  [A misdemeanor] D FELONY.
   55    S  15.  Subdivision 1 of section 70.02 of the penal law, as separately
   56  amended by chapters 764 and 765 of the laws of 2005,  paragraph  (a)  as
       S. 7843                             4
    1  amended  by chapter 320 of the laws of 2006, paragraph (b) as amended by
    2  chapter 148 of the laws of 2011, paragraph (c) as amended by chapter 405
    3  of the laws of 2010 and paragraph (d) as amended by  chapter  7  of  the
    4  laws of 2007, is amended to read as follows:
    5    1. Definition of a violent felony offense. A violent felony offense is
    6  A  CLASS  A  VIOLENT FELONY OFFENSE, a class B violent felony offense, a
    7  class C violent felony offense, a class D violent felony offense,  or  a
    8  class E violent felony offense, defined as follows:
    9    (a)  CLASS  A VIOLENT FELONY OFFENSES: CRIMINAL POSSESSION OF A WEAPON
   10  IN THE FIRST DEGREE AS DEFINED IN SECTION 265.04 WHERE THE WEAPON  IS  A
   11  FIREARM,  CRIMINAL  USE  OF  A FIREARM IN THE FIRST DEGREE AS DEFINED IN
   12  SECTION 265.09, AND CRIMINAL SALE OF A FIREARM IN THE  FIRST  DEGREE  AS
   13  DEFINED IN SECTION 265.13.
   14    (B)  Class  B  violent felony offenses: an attempt to commit the class
   15  A-I felonies of murder in  the  second  degree  as  defined  in  section
   16  125.25, kidnapping in the first degree as defined in section 135.25, and
   17  arson  in the first degree as defined in section 150.20; manslaughter in
   18  the first degree as defined in section 125.20,  aggravated  manslaughter
   19  in  the  first  degree  as  defined in section 125.22, rape in the first
   20  degree as defined in section 130.35, criminal sexual act  in  the  first
   21  degree  as  defined  in  section  130.50, aggravated sexual abuse in the
   22  first degree as defined in section  130.70,  course  of  sexual  conduct
   23  against  a  child  in  the  first  degree  as defined in section 130.75;
   24  assault in the first degree as defined in section 120.10, kidnapping  in
   25  the  second  degree  as defined in section 135.20, burglary in the first
   26  degree as defined in section 140.30,  arson  in  the  second  degree  as
   27  defined  in  section  150.15,  robbery in the first degree as defined in
   28  section 160.15, incest in the first degree as defined in section 255.27,
   29  criminal possession of a weapon  in  the  first  degree  as  defined  in
   30  section  265.04  WHERE  THE  WEAPON IS NOT A FIREARM, [criminal use of a
   31  firearm in the first degree as defined in section 265.09, criminal  sale
   32  of a firearm in the first degree as defined in section 265.13,] CRIMINAL
   33  POSSESSION  OF  A  WEAPON  IN  THE  SECOND  DEGREE AS DEFINED IN SECTION
   34  265.03, CRIMINAL USE OF A FIREARM IN THE SECOND  DEGREE  AS  DEFINED  IN
   35  SECTION  265.08,  CRIMINAL  SALE  OF  A  FIREARM IN THE SECOND DEGREE AS
   36  DEFINED IN SECTION 265.12, CRIMINAL SALE OF A FIREARM WITH THE AID OF  A
   37  MINOR  AS DEFINED IN 265.14, aggravated assault upon a police officer or
   38  a peace officer as defined in section 120.11, gang assault in the  first
   39  degree as defined in section 120.07, intimidating a victim or witness in
   40  the  first degree as defined in section 215.17, hindering prosecution of
   41  terrorism in the first degree as defined  in  section  490.35,  criminal
   42  possession  of  a  chemical  weapon  or  biological weapon in the second
   43  degree as defined in section 490.40, and  criminal  use  of  a  chemical
   44  weapon  or  biological  weapon in the third degree as defined in section
   45  490.47.
   46    [(b)] (C) Class C violent felony offenses: an attempt to commit any of
   47  the class B felonies set forth in paragraph [(a)] (B) of  this  subdivi-
   48  sion;  aggravated  criminally  negligent  homicide as defined in section
   49  125.11, aggravated manslaughter in  the  second  degree  as  defined  in
   50  section  125.21, aggravated sexual abuse in the second degree as defined
   51  in section 130.67, assault on a peace officer, police  officer,  fireman
   52  or emergency medical services professional as defined in section 120.08,
   53  assault  on  a  judge  as defined in section 120.09, gang assault in the
   54  second degree as defined in section 120.06, strangulation in  the  first
   55  degree  as  defined  in section 121.13, burglary in the second degree as
   56  defined in section 140.25, robbery in the second degree  as  defined  in
       S. 7843                             5
    1  section 160.10, [criminal possession of a weapon in the second degree as
    2  defined  in  section  265.03,  criminal  use  of a firearm in the second
    3  degree as defined in section 265.08, criminal sale of a firearm  in  the
    4  second  degree  as defined in section 265.12, criminal sale of a firearm
    5  with the aid  of  a  minor  as  defined  in  section  265.14,]  CRIMINAL
    6  POSSESSION  OF  A  WEAPON  IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION
    7  FIVE, SIX, SEVEN OR EIGHT OF  SECTION  265.02  WHERE  THE  WEAPON  IS  A
    8  FIREARM,  CRIMINAL  SALE  OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN
    9  SECTION 265.11, soliciting or providing support for an act of  terrorism
   10  in  the first degree as defined in section 490.15, hindering prosecution
   11  of terrorism in the second degree as  defined  in  section  490.30,  and
   12  criminal  possession  of  a  chemical weapon or biological weapon in the
   13  third degree as defined in section 490.37.
   14    [(c)] (D) Class D violent felony offenses: an attempt to commit any of
   15  the class C felonies set forth in paragraph [(b)] (C); reckless  assault
   16  of a child as defined in section 120.02, assault in the second degree as
   17  defined in section 120.05, menacing a police officer or peace officer as
   18  defined  in  section 120.18, stalking in the first degree, as defined in
   19  subdivision one of section 120.60, strangulation in the second degree as
   20  defined in section 121.12, rape in  the  second  degree  as  defined  in
   21  section  130.30,  criminal sexual act in the second degree as defined in
   22  section 130.45, sexual abuse in the first degree as defined  in  section
   23  130.65, course of sexual conduct against a child in the second degree as
   24  defined  in  section 130.80, aggravated sexual abuse in the third degree
   25  as defined  in  section  130.66,  facilitating  a  sex  offense  with  a
   26  controlled  substance  as defined in section 130.90, criminal possession
   27  of a weapon in the [third] FOURTH  degree  as  defined  in  [subdivision
   28  five,  six,  seven or eight of] section [265.02] 265.01 WHERE THE WEAPON
   29  IS A FIREARM, [criminal sale of a firearm in the third degree as defined
   30  in section 265.11,] AN ATTEMPT TO COMMIT ANY OF THE FELONIES OF CRIMINAL
   31  POSSESSION IN THE THIRD DEGREE AS  DEFINED  IN  SUBDIVISION  FIVE,  SIX,
   32  SEVEN  OR  EIGHT  OF SECTION 265.02 AS A LESSER INCLUDED OFFENSE OF THAT
   33  SECTION AS DEFINED IN SECTION 220.20  OF  THE  CRIMINAL  PROCEDURE  LAW,
   34  intimidating  a  victim  or  witness  in the second degree as defined in
   35  section 215.16, soliciting or providing support for an act of  terrorism
   36  in  the second degree as defined in section 490.10, and making a terror-
   37  istic threat as defined in section 490.20, falsely reporting an incident
   38  in the first degree as defined in section 240.60, placing a  false  bomb
   39  or hazardous substance in the first degree as defined in section 240.62,
   40  placing  a  false  bomb  or  hazardous  substance in a sports stadium or
   41  arena, mass transportation facility or enclosed shopping mall as defined
   42  in section 240.63, and aggravated unpermitted use of indoor pyrotechnics
   43  in the first degree as defined in section 405.18.
   44    [(d)] (E) Class E violent felony offenses: an attempt to commit any of
   45  the felonies of criminal possession of a weapon in  the  [third]  FOURTH
   46  degree  as defined in [subdivision five, six, seven or eight of] section
   47  [265.02] 265.01 WHERE THE WEAPON IS  A  FIREARM  as  a  lesser  included
   48  offense  of  that  section  as defined in section 220.20 of the criminal
   49  procedure law, persistent sexual abuse as  defined  in  section  130.53,
   50  aggravated  sexual  abuse  in  the  fourth  degree as defined in section
   51  130.65-a, falsely reporting an incident in the second degree as  defined
   52  in section 240.55 and placing a false bomb or hazardous substance in the
   53  second degree as defined in section 240.61.
   54    S  16.  Subdivision 3 of section 70.02 of the penal law, as amended by
   55  chapter 765 of the laws of 2005, is amended to read as follows:
       S. 7843                             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; and (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;
   24    [(c)]  (D)  For  a class D felony, the term must be at least two years
   25  and must not exceed seven years, provided, however, that the  term  must
   26  be:  (I)  at  least  two years and must not exceed eight years where the
   27  sentence is for the crime of menacing a police officer or peace  officer
   28  as  defined  in  section  120.18 of this chapter; AND (II) AT LEAST FIVE
   29  YEARS AND MUST NOT EXCEED EIGHT YEARS WHERE  THE  SENTENCE  IS  FOR  THE
   30  CRIME OF CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE AS DEFINED
   31  IN SECTION 265.01 OF THIS CHAPTER IF SUCH WEAPON IS A FIREARM; and
   32    [(d)]  (E)  For  a  class  E felony, the term must be at least one and
   33  one-half years and must not exceed four years.
   34    S 17. Paragraph (c) of subdivision 2 of section  70.02  of  the  penal
   35  law,  as  amended by chapter 764 of the laws of 2005, is amended to read
   36  as follows:
   37    (c) Except as provided  in  subdivision  six  of  section  60.05,  the
   38  sentence imposed upon a person who stands convicted of the class [D] (C)
   39  violent  felony offenses of criminal possession of a weapon in the third
   40  degree as defined in subdivision four, five, seven or eight  of  section
   41  265.02,  criminal  sale  of  a firearm in the third degree as defined in
   42  section 265.11 or the class E violent  felonies  of  attempted  criminal
   43  possession  of  a  weapon  in the third degree as defined in subdivision
   44  four, five, seven or eight of section 265.02 must be  a  sentence  to  a
   45  determinate  period  of imprisonment, or, in the alternative, a definite
   46  sentence of imprisonment for a period of no less than one  year,  except
   47  that:
   48    (i)  the  court may impose any other sentence authorized by law upon a
   49  person who has not been previously convicted in  the  five  years  imme-
   50  diately  preceding the commission of the offense for a class A misdemea-
   51  nor defined in this chapter, if the court having regard  to  the  nature
   52  and  circumstances  of the crime and to the history and character of the
   53  defendant, finds on the record that such sentence would be unduly  harsh
   54  and that the alternative sentence would be consistent with public safety
   55  and does not deprecate the seriousness of the crime; and
       S. 7843                             7
    1    (ii)  the  court may apply the provisions of paragraphs (b) and (c) of
    2  subdivision four of this section when imposing a sentence upon a  person
    3  who  has  previously  been convicted of a class A misdemeanor defined in
    4  this chapter in the five years immediately preceding the  commission  of
    5  the offense.
    6    S  18.  Paragraph  (a)  of subdivision 2 of section 70.02 of the penal
    7  law, as amended by chapter 764 of the laws of 2005, is amended  to  read
    8  as follows:
    9    (a)  Except  as  provided  in  subdivision  six  of section 60.05, the
   10  sentence imposed upon a person who stands convicted of a class A,  B  or
   11  class  C violent felony offense must be a determinate sentence of impri-
   12  sonment which shall be in whole or half years. The term of such sentence
   13  must be in accordance with the provisions of subdivision three  of  this
   14  section.
   15    S  19.  Paragraph  (a)  of subdivision 2 of section 70.02 of the penal
   16  law, as amended by chapter 233 of the laws of 1980, is amended  to  read
   17  as follows:
   18    (a) The sentence imposed upon a person who stands convicted of a class
   19  A, B or class C violent felony offense must be an indeterminate sentence
   20  of  imprisonment.  Except  as  provided  in  subdivision five of section
   21  60.05, the maximum term of such sentence must be in accordance with  the
   22  provisions  of  subdivision three of this section and the minimum period
   23  of imprisonment under such sentence must be in accordance with  subdivi-
   24  sion four of this section.
   25    S  20.  This  act  shall  take  effect  immediately and shall apply to
   26  offenses committed on and after such date; provided that the  amendments
   27  to paragraph (a) of subdivision 2 of section 70.02 of the penal law made
   28  by  section  eighteen of this act shall be subject to the expiration and
   29  reversion of such paragraph  when  upon  such  date  the  provisions  of
   30  section nineteen of this act shall take effect.
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