STATE OF NEW YORK
________________________________________________________________________
7138
IN SENATE
March 31, 2016
___________
Introduced by Sen. RITCHIE -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to increasing penalties for
criminal use of a firearm in the first degree when committing a drug
related felony offense
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 265.09 of the penal law, as amended by chapter 650
2 of the laws of 1996 and subdivision 2 as amended by chapter 1 of the
3 laws of 2013, is amended to read as follows:
4 § 265.09 Criminal use of a firearm in the first degree.
5 (1) A person is guilty of criminal use of a firearm in the first
6 degree when he or she commits any class B violent felony offense as
7 defined in paragraph (a) of subdivision one of section 70.02 or commits
8 any drug related felony offense as defined in sections 220.31, 220.34,
9 220.39, 220.41, 220.43, 220.44 and 220.48 of this chapter and he or she
10 either:
11 (a) possesses a deadly weapon, if the weapon is a loaded or unloaded
12 weapon from which a shot, readily capable of producing death or other
13 serious injury may be discharged; or
14 (b) displays what appears to be a pistol, revolver, rifle, shotgun,
15 machine gun or other firearm.
16 Criminal use of a firearm in the first degree is a class B felony.
17 (2) Sentencing. (a) Notwithstanding any other provision of law to the
18 contrary, when a person is convicted of criminal use of a firearm in the
19 first degree as defined in subdivision one of this section, the court
20 shall impose an additional consecutive sentence of [five] ten years to
21 the sentence imposed on the underlying class B violent felony offense or
22 drug related felony offense where the person convicted of such crime
23 displays a loaded or unloaded weapon from which a shot, readily capable
24 of producing death or other serious injury may be discharged or displays
25 what appears to be a pistol, revolver, shotgun, machine gun or other
26 firearm, in furtherance of the commission of such crime[, provided,
27 however, that such additional sentence shall not be imposed if the
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD08472-01-5
S. 7138 2
1 court, having regard to the nature and circumstances of the crime and to
2 the history and character of the defendant, finds on the record that
3 such additional consecutive sentence would be unduly harsh and that not
4 imposing such sentence would be consistent with the public safety and
5 would not deprecate the seriousness of the crime]. The additional
6 sentence shall be imposed by the court regardless of the nature and
7 circumstances of the crime and to the history and character of the
8 defendant. The district attorney of any jurisdiction shall be prohibited
9 from dismissing this offense in the course of a plea bargain.
10 (b) Notwithstanding any other provision of law to the contrary, the
11 aggregate of the [five] ten year consecutive term imposed pursuant to
12 this subdivision and the minimum term of the indeterminate sentence
13 imposed on the underlying class B violent felony or drug related felony
14 offense shall constitute the new aggregate minimum term of imprisonment,
15 and a person subject to such term shall be required to serve the entire
16 aggregate minimum term and shall not be eligible for release on parole
17 or conditional release during such term. This subdivision shall [not]
18 apply where the defendant's criminal liability for displaying a loaded
19 or unloaded weapon from which a shot, readily capable of producing death
20 or other serious injury may be discharged, or displays what appears to
21 be a pistol, revolver, rifle, shotgun, machine gun or other firearm, in
22 furtherance of the commission of crime is based on the conduct of anoth-
23 er pursuant to section 20.00 of this chapter.
24 § 2. This act shall take effect on the one hundred eightieth day after
25 it shall have become a law.
