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A02388 Memo:

 BILL NUMBER:  A2388

 TITLE OF BILL :

An act to amend the criminal procedure law, the correction law, the
family court act, the executive law, the general business law, the
judiciary law, the mental hygiene law, the penal law and the
surrogate's court procedure act, in relation to suspension and
revocation of firearms licenses; private sale or disposal of firearms,
rifles or shotguns and establishing a minimum age to possess a
firearm; to amend the family court act, the domestic relations law and
the criminal procedure law, in relation to providing for the mandatory
suspension or revocation of the firearms license of a person against
whom an order of protection or a temporary order of protection has
been issued under certain circumstances, or upon violation of any such
order; to amend the penal law, in relation to community guns and the
criminal sale of a firearm and in relation to the definitions of
aggravated and first degree murder; to amend chapter 408 of the laws
of 1999 constituting Kendra's Law, in relation to extending the
expiration thereof; and to amend the education law, in relation to the
New York state school safety improvement teams; and in relation to
building aid for metal detectors and safety devices

 PURPOSE :

This legislation will protect New Yorkers by reducing the availability
of assault weapons and deterring the criminal use of firearms while
promoting a fair, consistent and efficient method of ensuring that
sportsmen and other legal gun owners have full enjoyment of the guns
to which they are entitled. A thoughtful network of laws provides the
toughest, most comprehensive and balanced answer in the nation to gun
violence. Through this legislation, New York is the first in the
nation to completely ban all pre-1994 high capacity magazines; to ban
any magazine that holds more than seven rounds (rather than a limit of
ten) and to both track ammunition purchases in real time to permit
alerts on high volume buyers, while also checking on the buyer's
background.

In a range of reforms the bill attends to the weaknesses in the
state's current regulatory structure to bring a consistency and
rationality that must be the cornerstone of a safe society. A single
standard across the State will ensure that legal gun owners obtain
their licenses expeditiously while those prohibited are denied that
privilege. A statewide database will keep the registry current and
guard against the dangerous or unstable possessing guns. New rules
will close a loophole that excludes private sales of guns from a
federal background check; tighten provisions governing gun ownership
by persons with serious mental illness; require safe storage of guns
for gun owners who live with someone who has been convicted of certain
crimes, is under an order of protection, or who has been involuntarily
committed as a result of a mental illness. The bill also creates new
and enhanced penalties for illegal gun use, and enhances protections
for victims of domestic violence by requiring the firearm surrenders
and gun license suspension and revocation in cases where an order of
protection has been issued.

 SUMMARY OF PROVISIONS :

Assault Weapons


Section 37 of the bill amends Penal Law S 265.00(22) in order to
strengthen New York's assault weapon ban, expanding its reach and
making it easier to enforce. The proposed amendments replace the
existing ban consisting of and a "two-feature" test adopted from the
now-expired federal assault weapons ban with a clearer "one-feature"
test. The "two-feature" test bans any gun that is semi-automatic, has
a detachable magazine (in the case of pistols and rifles), and
possesses two features that are commonly associated with military
weapons. The "one-feature" test would ban semi-automatic guns with
detachable magazines that possess one feature commonly associated with
military weapons. This section also adds to the list of "features"
that characterize a banned weapon.

Within one year of the effective date, all weapons defined as assault
weapons under the new "one-feature" test, as well as weapons
grandfathered in under the original assault weapons ban, must be
registered. Current owners of these banned weapons may transfer the
weapons only to a firearms dealer or transfer to an out of state
buyer. All registered owners will be subject to a review of
disqualifiers by the State Police.

Ammunition


Section 38 of the bill amends Penal Law S 265.00(23) to ban all large
capacity magazines that have the capacity to hold more than ten rounds
of ammunition including those that were grandfathered in under the
original assault weapons ban and creates a new ban on magazines that
hold more than seven rounds of ammunition. Magazines that can hold
more than seven rounds but not more than ten rounds and are currently
possessed will be grandfathered in, but may only contain seven rounds
of ammunition. Exceptions are made for large capacity magazines that
are curios or relics.

Section 39 also adds a new section to Penal Law S 265.00 to define
seller of ammunition.

Section 50 of the bill enhances control over sales of ammunition by
adding a new Penal Law S 400.03 requiring (1) that sellers of
ammunition register with the superintendent of the State police (2)
that prior to a sale of ammunition, a seller must run the buyer
through a State-created review of disqualifiers to ensure that the
buyer is not prohibited by law from possessing ammunition, and (3)
that ammunition sales are electronically accessible to the State. In
addition, to prevent from purchasing ammunition, the bill requires
that any ammunition sold commercially must be conducted by a seller
that can perform a background check.

Licensing


Section 49 creates a new Penal Law S 400.02 establishing a statewide
gun license and record database. Section 18 amends Section 212 of the
Judiciary Law to require that records submitted to the Federal Bureau
of Investigation regarding individuals for whom a guardian has been
appointed be transmitted to the State and checked against the
statewide gun license and record database.

Several sections of the bill strengthen statutory provisions related
to the licensing of firearms, shotguns, and rifles. Section 1 amends
Criminal Procedure Law (CPL) S 330.20 to require the revocation of any
gun license from and the surrender of any gun by a defendant upon an
entry of a verdict of not responsible by reason of mental disease or
defect, upon the acceptance of a plea of not responsible by reason of
mental disease or defect, or upon a finding that a defendant is an
incapacitated person pursuant to the CPL. Section 2 adds a new section
to the CPL that requires a sentencing judge to demand surrender of a
gun license or registration and all guns possessed by the defendant
upon judgment of conviction for an offense that requires the seizure
of a gun and the revocation of a gun license or registration. Sections
4 through 16 amend the Family Court Act, the Domestic Relations Law
and the CPL to require, under certain circumstances, the mandatory
suspension or revocation of the firearms license of a person against
whom an order of protection or a temporary order of protection has
been issued.

Section 48 of the bill amends the Penal Law to require that every
county recertify a gun license holder's license every five years.
Failure to recertify during this five year period equates to
revocation of the license. The section also adds bases for denial of a
license to an applicant, including connection of a felony or serious
offense, being presently subject to an order of protection; and
expands the criteria for denial based on an applicant's history of
mental illness.

Private Sales


Under current New York law, background checks on gun purchasers are
required for all purchases of guns from gun dealers and at gun shows.
Section 17 will expand this requirement by adding a new article to the
General Business Law requiring background checks to be completed for
all gun sales, except for immediate family. Thus private sellers may
transfer a gun only if the buyer has obtained a federal "NICS" check.
Further, dealers must maintain records of private sale background
checks, and private sellers may charge a fee of up to $10 on a
transaction. Transfers between immediate family members will be exempt
from the requirements of this section.

Safe Storage


To prevent, among other things, unauthorized and unlicensed use of
guns, section 47 of the bill adds a new Penal Law S 265.45
establishing safe storage requirements for rifles, shotguns and
firearms. Under this new section, a gun owner who lives with someone
who the owner has reason to know is prohibited from possessing a gun
because the prohibited person has been convicted of a crime punishable
by a term of imprisonment exceeding one year, has been adjudicated
mentally defective or committed to a mental institution, is subject to
a court order of protection or has been convicted of a misdemeanor
crime of domestic violence whose sentence has been completed in the
last five years must, when the gun is out of the owner's immediate
control, keep the gun secured in a safe storage depository (for
example, a safe or similar secure container with a lock that can be
opened only with a key or combination, or other locking mechanism) or
render it incapable of being fired by putting a safety lock on the
gun.

Provisions Related to Persons with Mental Illness


Amendments to the Mental Hygiene Law will help ensure that persons who
are mentally ill and dangerous cannot retain or obtain a firearm.
First, mental health records that are currently sent to NIDCS for a
federal background check will also be housed in a New York State
database. A new Section 9.46 of the Mental Hygiene Law will require
mental health professionals, in the exercise of reasonable
professional judgment, to report if an individual they are treating is
likely to engage in conduct that will cause serious harm to him- or
herself or others. A good faith decision about whether to report will
not be a basis for any criminal or civil liability. When a Section
9.46 report is made, the Division of Criminal Justice Services will
determine whether the person possesses a firearms license and, if so,
will notify the appropriate local licensing official, who must suspend
the license. The person's firearms will then be removed.

The bill extends Kendra's Law through 2017 and amends the law by:
extending the duration of the initial assisted out-patient treatment
order from 6 months to one year; requiring a review before the
assisted out-patient treatment order for a mentally ill inmate is
terminated; requiring an assisted out-patient treatment order to
follow a person from one county to another if he or she changes
residence; and will require the Office of Mental Hygiene (OMH) to
conduct an assisted out-patient treatment assessment with a state
prisoner is being discharged to the community from and OHM hospital.

New and Enhanced Criminal Penalties


Several sections of the bill create new and enhanced penalties for
illegal gun use. Sections 33 through 36, known as "Mark's Law," will
include the intentional murder of certain first responders in the
Class A-1 felonies of murder in the first degree and aggravated
murder. The mandatory penalty for a conviction of aggravated murder is
life without parole.

A new Penal Law Section 460.22, aggravated enterprise corruption,
recognizes the significant threat to public safety posed by organized
violent gangs and their illegal purchases of weapons by creating an
A-1 felony for cases when members of the enterprise commit certain
combinations of offenses. Those combinations are: first, a pattern of
criminal activity that constitutes Class B felonies or higher, and at
least two of those acts are armed felonies; or second, one act is a
Class B violent felony and two acts constitute a violation of the
newly added Section 265.17 (3) which prohibits the purchase on behalf
of or disposal of a weapon to an individual who is prohibited by law
from possessing such a weapon. This provision also addresses the issue
of "straw purchasers" where individuals who are not prohibited by law
to purchase weapons do so for others, for example, gang members who
may not possess a weapon because of a prior conviction or other
disability under law.

Section 41 increases the penalty for possession of a firearm on school
grounds or on a school bus from a misdemeanor to a Class E Felony.
Section 41-a creates a new subdivision of criminal possession of a
weapon in the third degree, a Class D violent felony, when a person
possesses an unloaded firearm and also commits a drug trafficking
felony or possesses an unloaded firearm and also commits any violent
felony as part of the same criminal transaction. The mandatory minimum
sentence for these new Class D felonies is a three and one-half year
determinate sentence, although the court may consider mitigating
factors and impose a lesser sentence in some limited circumstances
involving drug trafficking.

Section 45 creates the crime of aggravated criminal possession of a
weapon, a Class C felony, which is committed when one possesses a
loaded firearm under S 255.03 of the Penal Law and also commits any
violent felony offense or a drug trafficking felony. The minimum
mandatory sentence is 5 years.

Section 32 amends Penal Law S 120.05 by adding a new subdivision 4-a
to create the crime of assault in the second degree when a person
recklessly causes physical injury to a child by the intentional
discharge of a firearm, rifle or shotgun.

Section 43 amends Penal Law S 265.17 to include criminal sale or
disposal of a weapon by providing a firearm, rifle or shotgun to a
person knowing he or she is prohibited by law from possessing such
firearm, rifle or shotgun. The penalty is raised from a Class A
misdemeanor to a Class D felony.


Section 31 adds Penal Law S 115.20 making it a Class A misdemeanor to
make available, sell, exchange, give or dispose of a community gun
that aids a person in committing a crime. A community gun is defined
as one that is made available to among or between two or more persons
at least one of whom is not authorized pursuant to law to possess such
firearm.

Safer Schools


The bill adds a new Section 2801-b to the Education Law to establish
New York State School Safety Improvement Teams to review, assess, and
make recommendations on School Safety Plans submitted by school
districts on a voluntary basis.  Section 3602 of the Education Law is
amended to allow school districts that purchase various security
devices included in their School Safety Plans to receive state
building aid reimbursement at a rate ten percent higher than their
current building aid ratio. Section 55 is the severability clause, and
Section 56 establishes the effective date.

 EXISTING LAW :

This bill amends the Correction Law, the Criminal Procedure Law, the
Domestic Relations Law, the Executive Law, the Family Court Act, the
General Business Law, the Judiciary Law, Kendra's Law (Section 18 of
Chapter 408 of the Laws of 1999, as amended by Chapter 139 of the Laws
of 2010), the Mental Hygiene Law, the Penal Law, and the Surrogates
Court Act.

 STATEMENT IN SUPPORT :

In the wrong hands, guns are weapons of untold destruction and
heartbreak: family and community members are taken from us in an
instant; mass shootings shatter our sense of safety in public spaces;
street crimes plague our neighborhoods. Nationwide, gun violence
claims over 30,000 lives annually.

While the Second Amendment protects the right to keep and bear arms,
the Supreme Court has said that that right is "not unlimited."
District of Columbia v. Heller, 554 U.S. 570, 595, 626 (2008). In the
Heller case, the Supreme Court explained, "nothing in our opinion
should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws
forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms." 554 U.S. at 626-27.
The Court also recognized there is a "historical tradition of
prohibiting the carrying of 'dangerous and unusual' weapons." Id.
This piece of legislation heeds the guidance of the Supreme Court by
refining and improving the assault weapon ban and increasing the
safety of New Yorkers while observing the protections of the Second
Amendment.

Some weapons are so dangerous and some ammunition devices so lethal
that we simply cannot afford to continue selling them in our state.
Assault weapons that have military-style features unnecessary for
hunting and sporting purposes are this kind of weapon. The test
adopted in this legislation is intended to bring a simplicity of
definition focusing on the lethality of the weapon, amplified by the
particular features. Given the difficulty of maintaining a list of
guns that keeps pace with changes in weapon design, the one-feature
test is a more comprehensive means for addressing these dangerous
weapons.

Ammunition


The state's previous ban against high capacity magazines faltered
because it was impossible to tell the difference between magazines
manufactured before or after the effective date of the ban. This bill
prohibits possession of all magazines with the capacity to contain
more than ten rounds, regardless of the date of manufacture. Going
forward, individuals will only be able to obtain magazines that can
contain up to seven rounds. Those who currently possess magazines that
can contain more than seven rounds will only be permitted to maintain
up to seven rounds in such magazines.

The new law also provides a mechanism to identify individual who
purchase unusually high volumes of ammunition, either in person or
over the Internet. Sellers must run the buyer's name through a State
database modeled after the federal "NICS" database to ensure the buyer
is not prohibited by law from possessing ammunition. Ammunition
sellers are also required to electronically file with the State
records of each ammunition sale, including amount sold.

In order to prevent circumvention of these new controls, this bill
requires that any seller--whether located in New York or out of
state-ship the ammunition to a dealer within New York for in-person
pick-up. The dealer is required to maintain records of the ammunition
sale and to perform a State review of disqualifiers. Direct shipment
of ammunition without a face-to-face transaction prevents a seller
from being able to adequately confirm the identity of a buyer through
the in-person inspection of a valid photo ID. Without adequate
confirmation of a buyer's identity, the benefits of background checks
and record keeping are completely circumvented. A law requiring all
ammunition sales to culminate in a face-to-face transfer, thereby
allowing for effective confirmation of purchaser identity and
corresponding background check, is consistent with this scheme.

Licensing


Currently in New York State, outside of New York City, Westchester,
Nassau and Suffolk Counties, a gun license never expires. Lack of a
renewal procedure means there is no periodic review of a licensee's
qualifications. Thus, if a license holder becomes disqualified from
carrying a gun subsequent to obtaining a license, he or she will
likely retain the license. This law requires every license holder to
recertify the licensee's gun license every five years. Failure of a
licensee to have his or her license recertified will result in
revocation of the license.

In addition, in order to ensure that legal gun license holders receive
their licenses as swiftly as possible and to ensure the swift and
accurate ability to match license holders with disqualifying events
such as a felony conviction, the bill establishes an electronic
license and record database. The electronic database will permit
regular matching by the State against records of prohibited persons
(e.g., those with criminal histories, orders of protection, and mental
illnesses that bar gun ownership and licensing) as well as against
other databases such as death records to ensure that New York's
license records are up to date.

Furthermore, orders of protection are intended to protect victims of
domestic violence from their abusers and prevent violent crimes from
occurring. This bill enhances protections for victims of domestic
violence by strengthening the provisions regarding the possession and
surrender of firearms and the suspension and revocation of, and
ineligibility for, licenses by individuals who are the respondents in
an order of protection. The bill makes changes to the Family Court Act
to conform to the 2007 amendments made to the CPL.

Private Gun Sales


Under current New York law, background checks on purchasers are
required for all purchases of guns from gun dealers and at gun shows,
however, individuals that purchase guns through private sellers are
not required to undergo background checks. This bill requires
background checks for all gun sales, including private sales, ensuring
that otherwise disqualified individuals cannot circumvent the law by
obtaining guns buying from a private seller.

Safe Storage


To prevent unauthorized possession and use of guns, this bill requires
anyone who owns a gun or who lives with someone who the owner has
reason to know is disqualified from possessing a gun under certain
provisions of federal law to secure any gun in a safe storage
depository or render it incapable of being fired by putting a safety
lock on the gun if it is to be outside the owner's direct control.

Persons with Mental Illness


This bill adds provisions to revoke or suspend licenses of individuals
with mental illness who, in the opinion of mental health professionals
would pose a danger to themselves or others should they possess guns.
The bill also extends and expands Kendra's Law to provide additional
out-patient treatment services to persons with mental illness.

New and Enhanced Criminal Penalties


The new and amended sections of the Penal Law are focused on the
methods by which gun violence is often carried out in our communities,
giving law enforcement better tools to punish and deter such conduct.
As the presence of illegal guns on our streets endangers the welfare
of entire communities, these provisions ensure appropriate penalties
for making guns available to prohibited persons, as well as putting
our children at risk by, among other dangerous and illegal activities,
possessing guns near school grounds. In addition, recognizing the
widespread violence caused by gang activity, the bill establishes
penalties for participation in gang activity resulting in the
commission of a violent crime.

The bill also contains new provisions acknowledging the danger that
our first responders face every day as they protect other New Yorkers
by establishing an enhanced penalty for knowingly causing the death of
a first responder in the course of his or her duties.

 LEGISLATIVE HISTORY :

New proposal.

 BUDGET IMPLICATIONS :

Any costs related to this bill will be paid out of the Division of
State Police capital budget.

 EFFECTIVE DATE :
The bill will take effect immediately except where otherwise provided.
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