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See Summary
S T A T E O F N E W Y O R K
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5844--A
Cal. No. 407
2009-2010 Regular Sessions
I N A S S E M B L Y
February 20, 2009
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Introduced by M. of A. WEISENBERG, PAULIN, RAMOS, LIFTON, JOHN, CLARK,
CARROZZA, V. LOPEZ, TITUS, KAVANAGH, WRIGHT, SCHIMEL, ALFANO, CASTRO,
BARRON, LANCMAN, MILLMAN, TOWNSEND, DINOWITZ, ROBINSON, ROSENTHAL,
MAYERSOHN, ESPAILLAT, WEINSTEIN -- Multi-Sponsored by -- M. of A.
BARRA, BOYLAND, BRENNAN, COLTON, COOK, ENGLEBRIGHT, GALEF, GANTT,
GOTTFRIED, HEASTIE, JACOBS, KOON, MAISEL, McENENY, PHEFFER, SCARBOR-
OUGH, TOWNS -- read once and referred to the Committee on Codes --
reported from committee, advanced to a third reading, amended and
ordered reprinted, retaining its place on the order of third reading
AN ACT to amend the penal law, the general business law and the educa-
tion law, in relation to criminally negligent storage of a weapon and
weapons safety programs for children
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Short title; construction. 1. This act shall be known and
2 may be cited as the "children's weapon accident prevention act."
3 2. The provisions of this act shall not be construed to preempt or
4 supersede any local law the provisions of which are no less stringent or
5 restrictive than the provisions of this act.
6 S 2. Legislative findings and intent. The legislature finds that a
7 tragically large number of children have been accidentally killed or
8 seriously injured by negligently stored weapons; that placing weapons
9 within reach or easy access of children is irresponsible, encourages
10 such accidents, and should be prohibited, and that legislative action is
11 necessary to protect the safety of our children.
12 S 3. Section 265.00 of the penal law is amended by adding five new
13 subdivisions 24, 25, 26, 27 and 28 to read as follows:
14 24. "WEAPON" MEANS A "RIFLE", "SHOTGUN", OR "FIREARM" AS OTHERWISE
15 DEFINED IN SUBDIVISION THREE OF THIS SECTION.
16 25. "LOCKED BOX" MEANS A SAFE, CASE OR CONTAINER WHICH, WHEN LOCKED,
17 IS INCAPABLE OF BEING OPENED WITHOUT THE KEY, COMBINATION, OR OTHER
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06818-02-0
A. 5844--A 2
1 UNLOCKING MECHANISM AND IS RESISTANT TO TAMPERING BY AN UNAUTHORIZED
2 PERSON ATTEMPTING TO OBTAIN ACCESS TO AND POSSESSION OF THE WEAPON OR
3 AMMUNITION CONTAINED THEREIN. THE DIVISION OF STATE POLICE SHALL DEVELOP
4 AND PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC DEVICES
5 OR THE MINIMUM STANDARDS AND CRITERIA THEREFOR WHICH CONSTITUTE AN
6 EFFECTIVE LOCKED BOX.
7 26. "GUN LOCKING DEVICE" MEANS AN INTEGRATED DESIGN FEATURE OR AN
8 ATTACHABLE ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE IN
9 PREVENTING THE DISCHARGE OF A WEAPON BY A PERSON WHO DOES NOT HAVE
10 ACCESS TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE THE
11 DEVICE.
12 27. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE
13 WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF
14 AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE.
15 28. "LOADED SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION OR ANY
16 SHOTGUN WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A
17 QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN.
18 S 4. The penal law is amended by adding six new sections 265.45,
19 265.50, 265.55, 265.60, 265.65 and 265.70 to read as follows:
20 S 265.45 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE.
21 A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND
22 DEGREE WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS OR
23 HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED
24 SUCH WEAPON IN AN APPROPRIATE LOCKED BOX OR RENDERED IT INCAPABLE OF
25 BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP-
26 ON.
27 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION.
28 S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE.
29 A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE FIRST
30 DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON
31 SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE
32 AND HAS BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO STORE A
33 WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS
34 ARTICLE WITHIN THE PRECEDING FIVE YEARS.
35 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE IS A CLASS B
36 MISDEMEANOR.
37 S 265.55 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY.
38 A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN
39 HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE
40 SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE AND SUCH
41 WEAPON IS REMOVED FROM THE PREMISES OR DISCHARGED BY ANOTHER PERSON
42 UNDER THE AGE OF EIGHTEEN.
43 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR.
44 S 265.60 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE.
45 1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
46 THE SECOND DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
47 LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
48 WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
49 AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
50 WHICH CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON UNDER THE AGE OF
51 EIGHTEEN OR ANY OTHER PERSON.
52 2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
53 DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
54 RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS
55 DISCHARGE.
56 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
A. 5844--A 3
1 (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
2 AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
3 (B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS
4 ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
5 SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
6 ACCESS TO SUCH AMMUNITION;
7 (C) SUCH WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS
8 THE WEAPON FROM DISCHARGING;
9 (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
10 OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
11 ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW; OR
12 (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
13 WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES.
14 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE IS A
15 CLASS E FELONY.
16 S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE.
17 1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
18 THE FIRST DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
19 LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
20 WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
21 AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
22 WHICH CAUSES THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN OR ANY
23 OTHER PERSON.
24 2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
25 DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
26 RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS
27 DISCHARGE.
28 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
29 (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
30 AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
31 (B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS
32 ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
33 SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
34 ACCESS TO THE WEAPON;
35 (C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE
36 WEAPON FROM DISCHARGING;
37 (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
38 OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
39 ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW; OR
40 (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
41 WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES.
42 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE IS A
43 CLASS D FELONY.
44 S 265.70 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST AND
45 SECOND DEGREE; APPLICATION.
46 IF A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF
47 THIS ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR WHO
48 DIES AS THE RESULT OF SUCH VIOLATION, THE DISTRICT ATTORNEY SHALL
49 CONSIDER, AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON THE
50 PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF THIS
51 ARTICLE WHEN DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON FOR SUCH
52 CRIME.
53 S 5. The section heading and subdivision 2 of section 396-ee of the
54 general business law, as added by chapter 189 of the laws of 2000, are
55 amended to read as follows:
56 Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
A. 5844--A 4
1 (2) Every person, firm or corporation engaged in the retail business
2 of selling rifles, shotguns or firearms, as such terms are defined in
3 section 265.00 of the penal law, shall, in the place where such rifles,
4 shotguns or firearms are displayed or transferred to the purchaser, post
5 a notice conspicuously stating in bold print that: "The use of a GUN
6 locking device or [safety lock] A LOCKED BOX is only one aspect of
7 responsible firearm storage. For increased safety firearms should be
8 stored unloaded and locked in a location that is both separate from
9 their ammunition and inaccessible to children and any other unauthorized
10 person. LEAVING RIFLES, SHOTGUNS, AND FIREARMS ACCESSIBLE TO A PERSON
11 UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE."
12 S 6. Section 305 of the education law is amended by adding a new
13 subdivision 42 to read as follows:
14 42. THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF CRIMI-
15 NAL JUSTICE SERVICES DEVELOP A WEAPONS SAFETY PROGRAM DESIGNED TO
16 PROTECT CHILDREN FROM THE RISK OF GUN-RELATED DEATH AND INJURY. SUCH
17 PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE-
18 TY PROCEDURE WHEN THEY ARE EXPOSED TO A GUN, SHALL SPECIFICALLY WARN
19 CHILDREN THAT CONTACT WITH GUNS CAN RESULT IN SERIOUS INJURY OR DEATH
20 AND SHALL HAVE BEEN PROVEN TO BE EFFECTIVE TO PREVENT INJURY THROUGH
21 FORMAL EVALUATION BY OBJECTIVE PUBLIC HEALTH AND EDUCATION PROFES-
22 SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE
23 DISCRETION OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF TRUSTEES,
24 WHICHEVER IS APPLICABLE. THE COMMISSIONER SHALL SUBMIT AN EVALUATION
25 REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE
26 TEMPORARY PRESIDENT OF THE SENATE, THE CHAIR OF THE ASSEMBLY CODES
27 COMMITTEE AND THE CHAIR OF THE SENATE CODES COMMITTEE NO LATER THAN
28 JANUARY FIRST, TWO THOUSAND TWELVE.
29 S 7. If any word, phrase, clause, sentence, paragraph, section, or
30 part of this act shall be adjudged by any court of competent jurisdic-
31 tion to be invalid, such judgment shall not affect, impair, or invali-
32 date the remainder thereof, but shall be confined in its operation to
33 the words, phrase, clause, sentence, paragraph, section, or part thereof
34 directly involved in the controversy in which such judgment shall have
35 been rendered.
36 S 8. This act shall take effect on the first of November next succeed-
37 ing the date on which it shall have become a law, provided, however,
38 that sections three and four of this act shall take effect May 1, 2011;
39 provided, further, that section five of this act shall take effect March
40 1, 2011 except that any rule or regulation necessary for the timely
41 implementation of section five of this act may be promulgated on or
42 before such date.
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