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See Summary
S T A T E O F N E W Y O R K
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3098
2009-2010 Regular Sessions
I N S E N A T E
March 10, 2009
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Introduced by Sen. SCHNEIDERMAN -- read twice and ordered printed, and
when printed to be committed to the Committee on Codes
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
18 UNLOCKING MECHANISM AND IS RESISTANT TO TAMPERING BY AN UNAUTHORIZED
19 PERSON ATTEMPTING TO OBTAIN ACCESS TO AND POSSESSION OF THE WEAPON OR
20 AMMUNITION CONTAINED THEREIN. THE DIVISION OF STATE POLICE SHALL DEVELOP
21 AND PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC DEVICES
22 OR THE MINIMUM STANDARDS AND CRITERIA THEREFOR WHICH CONSTITUTE AN
23 EFFECTIVE LOCKED BOX.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD06818-01-9
S. 3098 2
1 26. "GUN LOCKING DEVICE" MEANS AN INTEGRATED DESIGN FEATURE OR AN
2 ATTACHABLE ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE IN
3 PREVENTING THE DISCHARGE OF A WEAPON BY A PERSON WHO DOES NOT HAVE
4 ACCESS TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE THE
5 DEVICE.
6 27. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE
7 WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF
8 AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE.
9 28. "LOADED SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION OR ANY
10 SHOTGUN WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A
11 QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN.
12 S 4. The penal law is amended by adding six new sections 265.45,
13 265.50, 265.55, 265.60, 265.65 and 265.70 to read as follows:
14 S 265.45 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE.
15 A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE SECOND
16 DEGREE WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS OR
17 HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED
18 SUCH WEAPON IN AN APPROPRIATE LOCKED BOX OR RENDERED IT INCAPABLE OF
19 BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP-
20 ON.
21 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION.
22 S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE.
23 A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE FIRST
24 DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON
25 SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE
26 AND HAS BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO STORE A
27 WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS
28 ARTICLE WITHIN THE PRECEDING FIVE YEARS.
29 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE IS A CLASS B
30 MISDEMEANOR.
31 S 265.55 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY.
32 A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN
33 HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE
34 SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE AND SUCH
35 WEAPON IS REMOVED FROM THE PREMISES OR DISCHARGED BY ANOTHER PERSON
36 UNDER THE AGE OF EIGHTEEN.
37 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR.
38 S 265.60 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE.
39 1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
40 THE SECOND DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
41 LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
42 WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
43 AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
44 WHICH CAUSES SERIOUS PHYSICAL INJURY TO SUCH PERSON UNDER THE AGE OF
45 EIGHTEEN OR ANY OTHER PERSON.
46 2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
47 DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
48 RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS
49 DISCHARGE.
50 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
51 (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
52 AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
53 (B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS
54 ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
55 SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
56 ACCESS TO SUCH AMMUNITION;
S. 3098 3
1 (C) SUCH WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS
2 THE WEAPON FROM DISCHARGING;
3 (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
4 OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
5 ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW; OR
6 (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
7 WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES.
8 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE IS A
9 CLASS E FELONY.
10 S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE.
11 1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
12 THE FIRST DEGREE WHEN WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
13 LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
14 WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
15 AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
16 WHICH CAUSES THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN OR ANY
17 OTHER PERSON.
18 2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
19 DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
20 RETRIEVE OR OTHERWISE REGAIN POSSESSION OF SUCH WEAPON PRIOR TO ITS
21 DISCHARGE.
22 3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
23 (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
24 AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
25 (B) SUCH WEAPON IS STORED IN A SECURELY LOCKED BOX WHICH PREVENTS
26 ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
27 SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
28 ACCESS TO THE WEAPON;
29 (C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE
30 WEAPON FROM DISCHARGING;
31 (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
32 OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
33 ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW; OR
34 (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
35 WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES.
36 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE IS A
37 CLASS D FELONY.
38 S 265.70 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST AND
39 SECOND DEGREE; APPLICATION.
40 IF A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF
41 THIS ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR WHO
42 DIES AS THE RESULT OF SUCH VIOLATION, THE DISTRICT ATTORNEY SHALL
43 CONSIDER, AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON THE
44 PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65 OF THIS
45 ARTICLE WHEN DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON FOR SUCH
46 CRIME.
47 S 5. The section heading and subdivision 2 of section 396-ee of the
48 general business law, as added by chapter 189 of the laws of 2000, are
49 amended to read as follows:
50 Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
51 (2) Every person, firm or corporation engaged in the retail business
52 of selling rifles, shotguns or firearms, as such terms are defined in
53 section 265.00 of the penal law, shall, in the place where such rifles,
54 shotguns or firearms are displayed or transferred to the purchaser, post
55 a notice conspicuously stating in bold print that: "The use of a GUN
56 locking device or [safety lock] A LOCKED BOX is only one aspect of
S. 3098 4
1 responsible firearm storage. For increased safety firearms should be
2 stored unloaded and locked in a location that is both separate from
3 their ammunition and inaccessible to children and any other unauthorized
4 person. LEAVING RIFLES, SHOTGUNS, AND FIREARMS ACCESSIBLE TO A PERSON
5 UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE."
6 S 6. Section 305 of the education law is amended by adding a new
7 subdivision 42 to read as follows:
8 42. THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF CRIMI-
9 NAL JUSTICE SERVICES DEVELOP A WEAPONS SAFETY PROGRAM DESIGNED TO
10 PROTECT CHILDREN FROM THE RISK OF GUN-RELATED DEATH AND INJURY. SUCH
11 PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE-
12 TY PROCEDURE WHEN THEY ARE EXPOSED TO A GUN, SHALL SPECIFICALLY WARN
13 CHILDREN THAT CONTACT WITH GUNS CAN RESULT IN SERIOUS INJURY OR DEATH
14 AND SHALL HAVE BEEN PROVEN TO BE EFFECTIVE TO PREVENT INJURY THROUGH
15 FORMAL EVALUATION BY OBJECTIVE PUBLIC HEALTH AND EDUCATION PROFES-
16 SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE
17 DISCRETION OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF TRUSTEES,
18 WHICHEVER IS APPLICABLE. THE COMMISSIONER SHALL SUBMIT AN EVALUATION
19 REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE
20 TEMPORARY PRESIDENT OF THE SENATE, THE CHAIR OF THE ASSEMBLY CODES
21 COMMITTEE AND THE CHAIR OF THE SENATE CODES COMMITTEE NO LATER THAN
22 JANUARY FIRST, TWO THOUSAND ELEVEN.
23 S 7. If any word, phrase, clause, sentence, paragraph, section, or
24 part of this act shall be adjudged by any court of competent jurisdic-
25 tion to be invalid, such judgment shall not affect, impair, or invali-
26 date the remainder thereof, but shall be confined in its operation to
27 the words, phrase, clause, sentence, paragraph, section, or part thereof
28 directly involved in the controversy in which such judgment shall have
29 been rendered.
30 S 8. This act shall take effect on the first of November next succeed-
31 ing the date on which it shall have become a law, provided, however,
32 that sections three and four of this act shall take effect May 1, 2010;
33 provided, further, that section five of this act shall take effect March
34 1, 2010 except that any rule or regulation necessary for the timely
35 implementation of section five of this act may be promulgated on or
36 before such date.
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