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S01422 Summary:

BILL NO    S01422A

SAME AS    No same as 

SPONSOR    DIAZ

COSPNSR    AVELLA, STAVISKY

MLTSPNSR   

Rpld S265.00 sub 22, amd Pen L, generally

Increases the penalty for the possession, use, or sale of assault weapons and
large capacity ammunition feeding devices and certain other weapons and
redefines "assault weapon".
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S01422 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        1422--A

                              2013-2014 Regular Sessions

                                   I N  S E N A T E

                                      (PREFILED)

                                    January 9, 2013
                                      ___________

       Introduced  by  Sens.  DIAZ,  AVELLA, STAVISKY -- read twice and ordered
         printed, and when printed to be committed to the Committee on Codes --
         recommitted to the Committee on Codes in accordance with  Senate  Rule
         6,  sec. 8 -- committee discharged, bill amended, ordered reprinted as
         amended and recommitted to said committee

       AN ACT to amend the penal law, in relation to increasing the penalty for
         the possession, use, or sale of certain firearms and  ammunition,  the
         definition  of assault weapon, and to repeal subdivision 22 of section
         265.00 of the penal law relating to the definition of an assault weap-
         on

         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:

    1    Section  1.  Subdivision  22  of  section  265.00  of the penal law is
    2  REPEALED and a new subdivision 22 is added to read as follows:
    3    22. "ASSAULT WEAPON" MEANS ANY:
    4    (A) SEMI-AUTOMATIC OR PUMP-ACTION  RIFLE  THAT  HAS  THE  CAPACITY  TO
    5  ACCEPT A DETACHABLE MAGAZINE AND HAS ONE OR MORE OF THE FOLLOWING:
    6    (I) A PISTOL GRIP;
    7    (II)  A  SECOND  HANDGRIP OR A PROTRUDING GRIP THAT CAN BE HELD BY THE
    8  NON-TRIGGER HAND;
    9    (III) A FOLDING OR TELESCOPING STOCK;
   10    (IV) A SHROUD ATTACHED TO THE BARREL, OR THAT PARTIALLY OR  COMPLETELY
   11  ENCIRCLES  THE  BARREL, ALLOWING THE BEARER TO HOLD THE FIREARM WITH THE
   12  NON-TRIGGER HAND WITHOUT  BEING  BURNED,  BUT  EXCLUDING  A  SLIDE  THAT
   13  ENCLOSES THE BARREL; OR
   14    (V) A MUZZLE BRAKE OR MUZZLE COMPENSATOR;
   15    (B)  SEMI-AUTOMATIC  PISTOL,  OR  ANY SEMI-AUTOMATIC, CENTERFIRE RIFLE
   16  WITH A FIXED MAGAZINE, THAT HAS THE CAPACITY TO  ACCEPT  MORE  THAN  TEN
   17  ROUNDS OF AMMUNITION;

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05841-03-4
       S. 1422--A                          2

    1    (C) SEMI-AUTOMATIC PISTOL THAT HAS THE CAPACITY TO ACCEPT A DETACHABLE
    2  MAGAZINE AND HAS ONE OR MORE OF THE FOLLOWING:
    3    (I)  A  SECOND  HANDGRIP  OR A PROTRUDING GRIP THAT CAN BE HELD BY THE
    4  NON-TRIGGER HAND;
    5    (II) A FOLDING OR TELESCOPING STOCK;
    6    (III) A SHROUD ATTACHED TO THE BARREL, OR THAT PARTIALLY OR COMPLETELY
    7  ENCIRCLES THE BARREL, ALLOWING THE BEARER TO HOLD THE FIREARM  WITH  THE
    8  NON-TRIGGER  HAND  WITHOUT  BEING  BURNED,  BUT  EXCLUDING  A SLIDE THAT
    9  ENCLOSES THE BARREL;
   10    (IV) A MUZZLE BRAKE OR MUZZLE COMPENSATOR; OR
   11    (V) THE CAPACITY TO ACCEPT  A  DETACHABLE  MAGAZINE  AT  ANY  LOCATION
   12  OUTSIDE OF THE PISTOL GRIP;
   13    (D) SEMI-AUTOMATIC SHOTGUN THAT HAS ONE OR MORE OF THE FOLLOWING:
   14    (I) A PISTOL GRIP OR A VERTICAL HANDGRIP;
   15    (II) A FOLDING OR TELESCOPING STOCK;
   16    (III) A FIXED MAGAZINE CAPACITY IN EXCESS OF FIVE ROUNDS; OR
   17    (IV)  AN ABILITY TO ACCEPT A DETACHABLE MAGAZINE;
   18    (E) SHOTGUN WITH A REVOLVING CYLINDER;
   19    (F) GRENADE LAUNCHER;
   20    (G)  CONVERSION  KIT,  PART,  OR  COMBINATION  OR PARTS, FROM WHICH AN
   21  ASSAULT WEAPON CAN BE ASSEMBLED IF THOSE PARTS ARE IN THE POSSESSION  OR
   22  UNDER THE CONTROL OF THE SAME PERSON; OR
   23    (H)  MODIFICATIONS  OF SUCH FEATURES, OR OTHER FEATURES, DETERMINED BY
   24  RULES AND REGULATIONS OF  THE  SUPERINTENDENT  OF  STATE  POLICE  TO  BE
   25  PARTICULARLY  SUITABLE  FOR MILITARY AND NOT SPORTING PURPOSES. IN ADDI-
   26  TION, THE SUPERINTENDENT OF STATE  POLICE  SHALL,  BY  RULES  AND  REGU-
   27  LATIONS,  DESIGNATE  SPECIFIC SEMIAUTOMATIC CENTERFIRE OR RIMFIRE RIFLES
   28  OR SEMIAUTOMATIC SHOTGUNS, IDENTIFIED BY MAKE, MODEL AND  MANUFACTURER'S
   29  NAME,  TO BE WITHIN THE DEFINITION OF ASSAULT WEAPON, IF THE SUPERINTEN-
   30  DENT OF STATE POLICE DETERMINES THAT SUCH WEAPONS ARE PARTICULARLY SUIT-
   31  ABLE FOR MILITARY AND NOT SPORTING PURPOSES. A LIST OF ASSAULT  WEAPONS,
   32  AS  DETERMINED  BY  THE  SUPERINTENDENT  OF  STATE POLICE, SHALL BE MADE
   33  AVAILABLE ON A REGULAR BASIS TO THE GENERAL PUBLIC.
   34    PROVIDED, HOWEVER, THAT SUCH TERM DOES NOT INCLUDE ANY WEAPON THAT HAS
   35  BEEN RENDERED PERMANENTLY INOPERABLE.
   36    S 2. Section 265.00 of the penal law is amended by  adding  three  new
   37  subdivisions 26, 27 and 28 to read as follows:
   38    26.  "DETACHABLE  MAGAZINE"  MEANS  ANY AMMUNITION FEEDING DEVICE, THE
   39  FUNCTION OF WHICH IS TO DELIVER ONE OR MORE AMMUNITION  CARTRIDGES  INTO
   40  THE  FIRING  CHAMBER,  WHICH CAN BE REMOVED FROM THE FIREARM WITHOUT THE
   41  USE OF ANY TOOL, INCLUDING A BULLET OR AMMUNITION CARTRIDGE.
   42    27. "MUZZLE BRAKE" MEANS A DEVICE ATTACHED TO THE MUZZLE OF  A  WEAPON
   43  THAT UTILIZES ESCAPING GAS TO REDUCE RECOIL.
   44    28.  "MUZZLE  COMPENSATOR"  MEANS A DEVICE ATTACHED TO THE MUZZLE OF A
   45  WEAPON THAT UTILIZES ESCAPING GAS TO CONTROL MUZZLE MOVEMENT.
   46    S 3. Section 265.20 of the penal law is amended by adding a new subdi-
   47  vision f to read as follows:
   48    F. POSSESSION OF AN ASSAULT WEAPON ON PROPERTY  OWNED  OR  IMMEDIATELY
   49  CONTROLLED  BY  THE  PERSON,  OR  WHILE  ON  THE  PREMISES OF A LICENSED
   50  GUNSMITH FOR THE PURPOSE OF LAWFUL REPAIR, OR WHILE ENGAGED IN THE LEGAL
   51  USE OF THE ASSAULT WEAPON AT A DULY  LICENSED  FIRING  RANGE,  OR  WHILE
   52  TRAVELING TO OR FROM THESE LOCATIONS, BY A PERSON WHO LAWFULLY POSSESSED
   53  SUCH  WEAPON PRIOR TO JANUARY FIRST, TWO THOUSAND FIFTEEN AND WHO, PRIOR
   54  TO APRIL FIRST, TWO THOUSAND FIFTEEN:
   55    1. RENDERS THE ASSAULT WEAPON PERMANENTLY INOPERABLE; OR
       S. 1422--A                          3

    1    2. SURRENDERS THE ASSAULT WEAPON TO THE  APPROPRIATE  LAW  ENFORCEMENT
    2  AGENCY  AS PROVIDED FOR IN SUBPARAGRAPH (F) OF PARAGRAPH ONE OF SUBDIVI-
    3  SION A OF THIS SECTION.
    4    S 4. Section 265.02 of the penal law, as amended by chapter 764 of the
    5  laws  of  2005,  subdivision  8  as amended and subdivisions 9 and 10 as
    6  added by chapter 1 of the laws of 2013, is amended to read as follows:
    7  S 265.02 Criminal possession of a weapon in the third degree.
    8    A person is guilty of criminal possession of a  weapon  in  the  third
    9  degree when:
   10    (1)  Such  person commits the crime of criminal possession of a weapon
   11  in the fourth degree as defined in subdivision one, two[, three] or five
   12  of section 265.01, and has been previously convicted of any crime; or
   13    (2) Such person possesses any explosive or incendiary bomb, bombshell,
   14  firearm silencer, machine-gun or any other firearm or weapon  simulating
   15  a machine-gun and which is adaptable for such use; or
   16    (3)  Such  person knowingly possesses a machine-gun, firearm, rifle or
   17  shotgun which has  been  defaced  for  the  purpose  of  concealment  or
   18  prevention  of  the detection of a crime or misrepresenting the identity
   19  of such machine-gun, firearm, rifle or shotgun; or
   20    (5) (i) Such person possesses three or more  firearms;  or  (ii)  such
   21  person possesses a firearm and has been previously convicted of a felony
   22  or  a  class A misdemeanor defined in this chapter within the five years
   23  immediately preceding the commission of the offense and such  possession
   24  did not take place in the person's home or place of business; or
   25    (6) Such person knowingly possesses any disguised gun[; or
   26    (7) Such person possesses an assault weapon; or
   27    (8)  Such person possesses a large capacity ammunition feeding device.
   28  For purposes of this subdivision, a large  capacity  ammunition  feeding
   29  device shall not include an ammunition feeding device lawfully possessed
   30  by  such  person before the effective date of the chapter of the laws of
   31  two thousand thirteen which amended this subdivision, that has a capaci-
   32  ty of, or that can be readily restored or converted to accept more  than
   33  seven  but  less  than eleven rounds of ammunition, or that was manufac-
   34  tured before September thirteenth, nineteen  hundred  ninety-four,  that
   35  has  a  capacity  of,  or  that  can be readily restored or converted to
   36  accept, more than ten rounds of ammunition; or
   37    (9) Such person possesses an unloaded firearm and also commits a  drug
   38  trafficking felony as defined in subdivision twenty-one of section 10.00
   39  of this chapter as part of the same criminal transaction; or
   40    (10)  Such  person  possesses an unloaded firearm and also commits any
   41  violent felony offense as defined in subdivision one of section 70.02 of
   42  this chapter as part of the same criminal transaction].
   43    Criminal possession of a weapon in the third degree is a class D felo-
   44  ny.
   45    S 5. Section 265.04 of the penal law, as amended by chapter 764 of the
   46  laws of 2005, is amended to read as follows:
   47  S 265.04 Criminal possession of a weapon in the first degree.
   48    A person is guilty of criminal possession of a  weapon  in  the  first
   49  degree when such person:
   50    (1)  possesses  any  explosive  substance  with intent to use the same
   51  unlawfully against the person or property of another; or
   52    (2) possesses ten or more firearms; OR
   53    (3) POSSESSES AN ASSAULT WEAPON; OR
   54    (4) POSSESSES A LARGE CAPACITY AMMUNITION FEEDING DEVICE.
   55    Criminal possession of a weapon in the first degree is a class B felo-
   56  ny.
       S. 1422--A                          4

    1    S 6. The penal law is amended by adding two new  sections  265.46  and
    2  265.47 to read as follows:
    3  S 265.46 UNLAWFUL  POSSESSION  OF  A  FIREARM UPON SCHOOL GROUNDS IN THE
    4             SECOND DEGREE.
    5    IT SHALL BE UNLAWFUL FOR ANY PERSON TO KNOWINGLY POSSESS  ANY  FIREARM
    6  IN  OR UPON A BUILDING OR GROUNDS, USED FOR EDUCATIONAL PURPOSES, OF ANY
    7  SCHOOL, COLLEGE OR UNIVERSITY, WITHOUT THE WRITTEN AUTHORIZATION OF SUCH
    8  EDUCATIONAL INSTITUTION.
    9    UNLAWFUL POSSESSION OF A WEAPON UPON  SCHOOL  GROUNDS  IN  THE  SECOND
   10  DEGREE IS A CLASS C FELONY.
   11  S 265.47 UNLAWFUL  POSSESSION  OF  A  FIREARM UPON SCHOOL GROUNDS IN THE
   12             FIRST DEGREE.
   13    IT SHALL BE UNLAWFUL FOR ANY PERSON TO KNOWINGLY  POSSESS  AN  ASSAULT
   14  WEAPON,  LARGE CAPACITY AMMUNITION FEEDING DEVICE OR DETACHABLE MAGAZINE
   15  IN OR UPON A BUILDING OR GROUNDS, USED FOR EDUCATIONAL PURPOSES, OF  ANY
   16  SCHOOL, COLLEGE OR UNIVERSITY, WITHOUT THE WRITTEN AUTHORIZATION OF SUCH
   17  EDUCATIONAL INSTITUTION.
   18    UNLAWFUL  POSSESSION  OF  A  WEAPON  UPON  SCHOOL GROUNDS IN THE FIRST
   19  DEGREE IS A CLASS B FELONY.
   20    S 7. The closing paragraph of section 265.08  of  the  penal  law,  as
   21  added by chapter 233 of the laws of 1980, is amended to read as follows:
   22    Criminal  use of a firearm in the second degree is a class [C] B felo-
   23  ny.
   24    S 8. The closing paragraph of  subdivision  1  and  subdivision  2  of
   25  section  265.09 of the penal law, the closing paragraph of subdivision 1
   26  as amended by chapter 650 of the laws of  1996,  and  subdivision  2  as
   27  amended  by  chapter  1  of  the  laws  of  2013, are amended to read as
   28  follows:
   29    Criminal use of a firearm in the first degree is a class [B] A felony.
   30    (2) Sentencing. Notwithstanding any other  provision  of  law  to  the
   31  contrary, when a person is convicted of criminal use of a firearm in the
   32  first  degree  as  defined in subdivision one of this section, the court
   33  shall impose an additional consecutive sentence [of five years]  to  the
   34  sentence  imposed on the underlying class B violent felony offense where
   35  the person convicted of such crime displays a loaded weapon from which a
   36  shot, readily capable of producing death or other serious injury may  be
   37  discharged,  in  furtherance  of the commission of such crime, provided,
   38  however, that such additional sentence  shall  not  be  imposed  if  the
   39  court, having regard to the nature and circumstances of the crime and to
   40  the  history  and  character  of the defendant, finds on the record that
   41  such additional consecutive sentence would be unduly harsh and that  not
   42  imposing  such  sentence  would be consistent with the public safety and
   43  would not deprecate the seriousness of the  crime.  Notwithstanding  any
   44  other provision of law to the contrary, the aggregate of the [five year]
   45  consecutive  term  imposed  pursuant to this subdivision and the minimum
   46  term of the indeterminate sentence imposed on  the  underlying  class  B
   47  violent felony shall constitute the new aggregate minimum term of impri-
   48  sonment,  and  a  person subject to such term shall be required to serve
   49  the entire aggregate minimum term and shall not be eligible for  release
   50  on  parole  or  conditional  release  during such term. This subdivision
   51  shall not apply where the defendant's criminal liability for  displaying
   52  a loaded weapon from which a shot, readily capable of producing death or
   53  other serious injury may be discharged, in furtherance of the commission
   54  of crime is based on the conduct of another pursuant to section 20.00 of
   55  this chapter.
       S. 1422--A                          5

    1    S  9.  The  closing  paragraph  of section 265.11 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 third degree is a class [D] C felo-
    5  ny.
    6    S 10. The closing paragraph of section 265.12 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 second degree is a class [C] B felo-
   10  ny.
   11    S 11. The closing paragraph of section 265.13 of  the  penal  law,  as
   12  amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
   13  follows:
   14    Criminal sale of a firearm in the first degree is a class [B] A  felo-
   15  ny.
   16    S  12.  Severability.  If any provision or term of this act is for any
   17  reason declared unconstitutional or invalid or ineffective by any  court
   18  of  competent  jurisdiction, such decision shall not affect the validity
   19  or the effectiveness of the remaining portions of this act or  any  part
   20  thereof.
   21    S 13. This act shall take effect immediately.
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