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A03211 Summary:

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A03211 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         3211--A
 
                               2009-2010 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 23, 2009
                                       ___________
 
        Introduced  by M. of A. EDDINGTON, BING, LIFTON, BRADLEY, RAMOS, ALESSI,
          KAVANAGH -- Multi-Sponsored by -- M.  of  A.  DIAZ,  DINOWITZ,  ENGLE-
          BRIGHT,  GLICK,  GOTTFRIED,  HOYT, JOHN, KOON, ORTIZ, PAULIN, PEOPLES,
          PERRY, PHEFFER, SCARBOROUGH, WEINSTEIN, WEISENBERG --  read  once  and
          referred  to  the  Committee  on  Codes  -- committee discharged, bill

          amended, ordered reprinted as amended and recommitted to said  commit-
          tee
 
        AN  ACT  to  amend  the  penal law and the executive law, in relation to
          banning the sale, possession or use of 50-caliber weapons
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section 1. Legislative findings and declaration. The legislature here-
     2  by  finds  and  declares  that  50-caliber  or larger weapons having the
     3  capacity for rapidly discharging ammunition have no acceptable  purpose.
     4  The  legislature  additionally finds and declares that such weapons pose
     5  such an imminent threat and danger to the safety  and  security  of  the
     6  people  of this state that it is necessary to ban the possession and use
     7  of such weapons.
     8    § 2. Subdivisions 8 and 9 of section  265.00  of  the  penal  law,  as

     9  amended  by  chapter  189  of  the  laws of 2000, are amended to read as
    10  follows:
    11    8. "Gunsmith" means any  person,  firm,  partnership,  corporation  or
    12  company  who engages in the business of repairing, altering, assembling,
    13  manufacturing,  cleaning,  polishing,  engraving  or  trueing,  or   who
    14  performs  any mechanical operation on, any firearm, large capacity ammu-
    15  nition feeding device, 50-caliber weapon or machine-gun.
    16    9. "Dealer in firearms" means any person,  firm,  partnership,  corpo-
    17  ration  or  company  who engages in the business of purchasing, selling,
    18  keeping for sale, loaning, leasing, or in any manner disposing  of,  any
    19  assault  weapon,  large  capacity  ammunition feeding device, 50-caliber
    20  weapon, pistol or revolver.
    21    § 3. Section 265.00 of the penal law is amended by adding a new subdi-

    22  vision 24 to read as follows:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02834-02-9
        A. 3211--A                          2
 
     1    24. "50-caliber weapon" means a rifle capable of firing a  center-fire
     2  cartridge  in 50-caliber or larger, .50 BMG caliber or larger, any other
     3  variant of 50-caliber or larger, or any other metric equivalent of  such
     4  caliber,  provided,  however,  that nothing in this subdivision shall be
     5  construed  to  include any muzzle loading rifle or shotgun with a rifled
     6  bore.
     7    § 4. Subdivision 3 of section 265.02 of the penal law, as  amended  by

     8  chapter 764 of the laws of 2005, is amended to read as follows:
     9    (3)  Such person knowingly possesses a machine-gun, a 50-caliber weap-
    10  on, firearm, rifle or shotgun which has been defaced for the purpose  of
    11  concealment or prevention of the detection of a crime or misrepresenting
    12  the  identity  of such machine-gun, 50-caliber weapon, firearm, rifle or
    13  shotgun; or
    14    § 5. Section 265.02 of the penal law is amended by adding a new subdi-
    15  vision 4 to read as follows:
    16    (4) Such person possesses any 50-caliber weapon; or
    17    § 6. Section 265.03 of the penal law, as amended by chapter 742 of the
    18  laws of 2006 and subdivisions 1 and 3 as amended by chapter 745  of  the
    19  laws of 2006, is amended to read as follows:
    20  § 265.03 Criminal possession of a weapon in the second degree.

    21    A  person  is  guilty of criminal possession of a weapon in the second
    22  degree when such person:
    23    (1) [with intent to use the  same  unlawfully  against  another,  such
    24  person:
    25    (a)] possesses a machine-gun; or
    26    [(b)]  (2)  possesses  a  50-caliber  weapon  or a loaded firearm with
    27  intent to use the same unlawfully against another; or
    28    [(c)] (3) possesses a disguised gun with intent to use the same unlaw-
    29  fully against another; or
    30    [(2) such person] (4) possesses five or more firearms; or
    31    [(3)] (5) such person possesses any loaded  firearm.  Such  possession
    32  shall  not,  except  as  provided in subdivision one or seven of section

    33  265.02 of this article, constitute a violation of  this  subdivision  if
    34  such possession takes place in such person's home or place of business.
    35    Criminal  possession  of  a  weapon  in the second degree is a class C
    36  felony.
    37    § 7. The penal law is amended by adding two new  sections  265.45  and
    38  265.46 to read as follows:
    39  § 265.45 Criminal use of a 50-caliber weapon in the second degree.
    40    1.  A  person  is guilty of criminal use of a 50-caliber weapon in the
    41  second degree when he commits any class  C  violent  felony  offense  as
    42  defined  in  paragraph  (b)  of subdivision one of section 70.02 of this
    43  chapter and he uses a 50-caliber weapon, as defined in subdivision twen-
    44  ty-four of section 265.00 of this article, if the 50-caliber weapon is a

    45  loaded 50-caliber weapon from which a shot, readily capable of producing
    46  death or other serious injury may be discharged.
    47    2. Notwithstanding any other provision of law to the contrary, when  a
    48  person is convicted of criminal use of a 50-caliber weapon in the second
    49  degree  as  defined  in  subdivision one of this section the court shall
    50  impose an additional consecutive term of five years to the minimum  term
    51  of  the  indeterminate  sentence  or  term  of  the determinate sentence
    52  imposed on the underlying class C violent felony conviction.    Notwith-
    53  standing  any  other  provision of law to the contrary, the aggregate of
    54  the five year consecutive term imposed pursuant to this subdivision  and

    55  the  minimum term of an indeterminate sentence imposed on the underlying
    56  class C violent felony conviction shall  constitute  the  new  aggregate
        A. 3211--A                          3
 
     1  minimum term of imprisonment, and a defendant subject to such term shall
     2  be  required to serve the entire aggregate minimum term and shall not be
     3  eligible for release on parole or  other  discretionary  release  during
     4  such term.
     5  § 265.46 Criminal use of a 50-caliber weapon in the first degree.
     6    1.  A  person  is guilty of criminal use of a 50-caliber weapon in the
     7  first degree when he commits any class  A  felony  offense  constituting
     8  murder,  kidnapping, arson, conspiracy or sale of a controlled substance

     9  or attempts to commit any such class A felony where  such  attempt  also
    10  constitutes  a  class A felony, or any class B violent felony offense as
    11  defined in paragraph (a) of subdivision one of  section  70.02  of  this
    12  chapter and he uses a 50-caliber weapon, as defined in subdivision twen-
    13  ty-four of section 265.00 of this article, if the 50-caliber weapon is a
    14  loaded 50-caliber weapon from which a shot, readily capable of producing
    15  death or other serious injury may be discharged.
    16    2.  Notwithstanding any other provision of law to the contrary, when a
    17  person is convicted of criminal use of a 50-caliber weapon in the  first
    18  degree  as  defined  in  subdivision one of this section the court shall

    19  impose an additional consecutive term of ten years to the  minimum  term
    20  of  the  indeterminate  sentence  or  term  of  the determinate sentence
    21  imposed on the underlying class A or class B violent felony  conviction.
    22  Notwithstanding  any  other provision of law to the contrary, the aggre-
    23  gate of the ten year consecutive term imposed pursuant to this  subdivi-
    24  sion  and  the  minimum term of an indeterminate sentence imposed on the
    25  underlying class A or class B violent felony conviction shall constitute
    26  the new aggregate minimum term of imprisonment, and a defendant  subject
    27  to  such  term  shall  be required to serve the entire aggregate minimum
    28  term and shall not be eligible for release on parole  or  other  discre-

    29  tionary release during such term.
    30    §  8.  Subdivision  2  of section 265.08 of the penal law, as added by
    31  chapter 233 of the laws of 1980, is amended to read as follows:
    32    (2) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
    33  50-caliber weapon, machine gun or other firearm.
    34    §  9.  Paragraph  (b)  of subdivision 1 of section 265.09 of the penal
    35  law, as amended by chapter 650 of the laws of 1996, is amended  to  read
    36  as follows:
    37    (b)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
    38  50-caliber weapon, machine gun or other firearm.
    39    § 10. Subdivisions 2, 3 and 6 of section  265.10  of  the  penal  law,
    40  subdivision 2 as amended by chapter 257 of the laws of 2008 and subdivi-
    41  sions 3 and 6 as amended by chapter 189 of the laws of 2000, are amended
    42  to read as follows:

    43    2.  Any  person  who  transports  or ships any machine-gun, 50-caliber
    44  weapon, firearm silencer, assault weapon or  large  capacity  ammunition
    45  feeding  device or disguised gun, or who transports or ships as merchan-
    46  dise five or more firearms, is guilty of a class D  felony.  Any  person
    47  who  transports  or  ships  as  merchandise  any  firearm, other than an
    48  assault weapon, switchblade knife, gravity knife, pilum ballistic knife,
    49  billy, blackjack, bludgeon, plastic knuckles, metal  knuckles,  Kung  Fu
    50  star, chuka stick, sandbag or slungshot is guilty of a class A misdemea-
    51  nor.
    52    3.  Any  person who disposes of any machine-gun, assault weapon, large
    53  capacity ammunition feeding device, 50-caliber weapon or firearm silenc-
    54  er is guilty of a  class  D  felony.  Any  person  who  knowingly  buys,

    55  receives,  disposes  of,  or  conceals a machine-gun, 50-caliber weapon,
    56  firearm, large capacity ammunition  feeding  device,  rifle  or  shotgun
        A. 3211--A                          4
 
     1  which  has  been defaced for the purpose of concealment or prevention of
     2  the detection of  a  crime  or  misrepresenting  the  identity  of  such
     3  machine-gun, 50-caliber weapon, firearm, large capacity ammunition feed-
     4  ing device, rifle or shotgun is guilty of a class D felony.
     5    6.  Any  person  who  wilfully defaces any machine-gun, large capacity
     6  ammunition feeding device, 50-caliber weapon or firearm is guilty  of  a
     7  class D felony.
     8    §  11. Subdivisions 1 and 5 of section 265.15 of the penal law, subdi-
     9  vision 5 as amended by chapter 695 of the laws of 1987, are  amended  to
    10  read as follows:

    11    1.  The  presence  in  any room, dwelling, structure or vehicle of any
    12  machine-gun or 50-caliber weapon is presumptive evidence of its unlawful
    13  possession by all persons occupying the place where such machine-gun  or
    14  50-caliber weapon is found.
    15    5.  The  possession by any person of a defaced machine-gun, 50-caliber
    16  weapon, firearm, rifle   or shotgun is presumptive  evidence  that  such
    17  person defaced the same.
    18    § 12. Paragraph 2 of subdivision a of section 265.20 of the penal law,
    19  as  amended  by  chapter  189 of the laws of 2000, is amended to read as
    20  follows:
    21    2. Possession of a  machine-gun,  large  capacity  ammunition  feeding
    22  device,  50-caliber  weapon,  firearm, switchblade knife, gravity knife,
    23  pilum ballistic knife, billy or blackjack by a  warden,  superintendent,

    24  headkeeper  or deputy of a state prison, penitentiary, workhouse, county
    25  jail or other institution for the  detention  of  persons  convicted  or
    26  accused  of crime or detained as witnesses in criminal cases, in pursuit
    27  of official duty or when duly  authorized  by  regulation  or  order  to
    28  possess the same.
    29    § 13. Paragraph 8 of subdivision a of section 265.20 of the penal law,
    30  as  amended  by  chapter  189 of the laws of 2000, is amended to read as
    31  follows:
    32    8. The manufacturer of machine-guns, assault weapons,  large  capacity
    33  ammunition  feeding  devices,  50-caliber weapons, disguised guns, pilum
    34  ballistic knives, switchblade or gravity knives, billies  or  blackjacks
    35  as  merchandise  and the disposal and shipment thereof direct to a regu-
    36  larly constituted or appointed state  or  municipal  police  department,

    37  sheriff,  policeman  or other peace officer, or to a state prison, peni-
    38  tentiary, workhouse, county jail or other institution for the  detention
    39  of  persons convicted or accused of crime or held as witnesses in crimi-
    40  nal cases, or to the military service of this state  or  of  the  United
    41  States.
    42    §  14.  Section  265.20  of  the  penal law is amended by adding a new
    43  subdivision e to read as follows:
    44    e. The terms "pistol," "revolver," "rifle," and "shotgun" as  used  in
    45  paragraphs  three  through five, seven through seven-b, twelve, thirteen
    46  and thirteen-a of subdivision a of this  section  shall  not  include  a
    47  50-caliber  weapon  as  defined  in  subdivision  twenty-four of section
    48  265.00 of this article.
    49    § 15. Section 265.11 of the penal law, as amended by  chapter  764  of

    50  the laws of 2005, is amended to read as follows:
    51  § 265.11 Criminal  sale  of  a firearm or 50-caliber weapon in the third
    52             degree.
    53    A person is guilty of criminal sale of a firearm or 50-caliber  weapon
    54  in  the  third degree when such person is not authorized pursuant to law
    55  to possess a firearm or 50-caliber weapon  and  such  person  unlawfully
    56  either:
        A. 3211--A                          5
 
     1    (1)  sells,  exchanges,  gives  or  disposes  of a firearm [or], large
     2  capacity ammunition feeding  device  or  50-caliber  weapon  to  another
     3  person; or
     4    (2)  possesses  a firearm or 50-caliber weapon with the intent to sell
     5  it.
     6    Criminal sale of a firearm or 50-caliber weapon in the third degree is

     7  a class D felony.
     8    § 16. Section 265.12 of the penal law, as amended by  chapter  764  of
     9  the laws of 2005, is amended to read as follows:
    10  §  265.12  Criminal sale of a firearm or 50-caliber weapon in the second
    11             degree.
    12    A person is guilty of criminal sale of a firearm or 50-caliber  weapon
    13  in the second degree when such person:
    14    (1)  unlawfully sells, exchanges, gives or disposes of to another five
    15  or more firearms or 50-caliber weapons; or
    16    (2) unlawfully sells, exchanges,  gives  or  disposes  of  to  another
    17  person or persons a total of five or more firearms or 50-caliber weapons
    18  in a period of not more than one year.
    19    Criminal  sale  of a firearm or 50-caliber weapon in the second degree
    20  is a class C felony.

    21    § 17. Section 265.14 of the penal law, as added by chapter 175 of  the
    22  laws  of 1991 and the closing paragraph as amended by chapter 654 of the
    23  laws of 1998, is amended to read as follows:
    24  § 265.14 Criminal sale of a firearm or 50-caliber weapon with the aid of
    25             a minor.
    26    A person over the age of eighteen years of age is guilty  of  criminal
    27  sale  of a [weapon] firearm or 50-caliber weapon with the aid of a minor
    28  when a person under sixteen years of age knowingly and unlawfully sells,
    29  exchanges, gives or disposes  of  a  firearm  or  50-caliber  weapon  in
    30  violation  of  this  article,  and  such person over the age of eighteen
    31  years of age, acting  with  the  mental  culpability  required  for  the
    32  commission  thereof,  solicits, requests, commands, importunes or inten-

    33  tionally aids such person under sixteen years of age to engage  in  such
    34  conduct.
    35    Criminal  sale  of  a  firearm  or 50-caliber weapon with the aid of a
    36  minor is a class C felony.
    37    § 18. Section 265.13 of the penal law, as amended by  chapter  764  of
    38  the laws of 2005, is amended to read as follows:
    39  §  265.13  Criminal  sale of a firearm or 50-caliber weapon in the first
    40             degree.
    41    A person is guilty of criminal sale of a firearm or 50-caliber  weapon
    42  in the first degree when such person:
    43    (1)  unlawfully  sells, exchanges, gives or disposes of to another ten
    44  or more firearms or 50-caliber weapons; or
    45    (2) unlawfully sells, exchanges,  gives  or  disposes  of  to  another
    46  person  or persons a total of ten or more firearms or 50-caliber weapons

    47  in a period of not more than one year.
    48    Criminal sale of a firearm or 50-caliber weapon in the first degree is
    49  a class B felony.
    50    § 19. Section 265.16 of the penal law, as added by chapter 600 of  the
    51  laws  of 1992 and the closing paragraph as amended by chapter 654 of the
    52  laws of 1998, is amended to read as follows:
    53  § 265.16 Criminal sale of a firearm or 50-caliber weapon to a minor.
    54    A person is guilty of criminal sale of a firearm or 50-caliber  weapon
    55  to  a  minor  when  he  is  not  authorized pursuant to law to possess a
    56  firearm or 50-caliber weapon and he unlawfully sells,  exchanges,  gives
        A. 3211--A                          6
 
     1  or  disposes  of a firearm or 50-caliber weapon to another person who is

     2  or reasonably appears to be less than nineteen years of age who  is  not
     3  licensed pursuant to law to possess a firearm or 50-caliber weapon.
     4    Criminal  sale of a firearm or 50-caliber weapon to a minor is a class
     5  C felony.
     6    § 20. The opening paragraph of subdivision 1 of section 55.05  of  the
     7  penal  law, as amended by chapter 276 of the laws of 1973, is amended to
     8  read as follows:
     9    [Felonies] Except for the felonies  defined  in  sections  265.45  and
    10  265.46  of  this  chapter,  felonies  are classified, for the purpose of
    11  sentence, into five categories as follows:
    12    § 21. Paragraph (a) of subdivision 1 of section  55.10  of  the  penal
    13  law,  as  amended by chapter 276 of the laws of 1973, is amended to read
    14  as follows:

    15    (a) [The] Except for the  felonies  defined  in  sections  265.45  and
    16  265.46  of this chapter, the particular classification or subclassifica-
    17  tion of each felony defined in this chapter is expressly  designated  in
    18  the section or article defining it.
    19    § 22. The executive law is amended by adding a new section 231 to read
    20  as follows:
    21    §  231.  Compliance  with  the  ban  on the sale, possession or use of
    22  50-caliber weapons. 1. From within amounts  appropriated  therefor,  the
    23  division  of  state  police  shall  take  such action as is necessary to
    24  implement a program whereby persons, including dealers of  firearms,  in
    25  lawful  possession  of  50-caliber  weapons  may  bring  themselves into

    26  compliance with the provisions of the penal law  which  bans  the  sale,
    27  possession or use of such weapons.
    28    2.  Within  thirty  days  of  the  effective date of this section, any
    29  licensed firearm dealer who has in his or her possession a new  50-cali-
    30  ber weapon shall be entitled to return such weapon to the distributor or
    31  manufacturer,  and  shall be entitled to a full refund, or credit, in an
    32  amount equal to the purchase price of such weapon. In any case  where  a
    33  distributor or manufacturer fails or refuses to so refund or credit such
    34  dealer,  the  dealer  shall  notify the division of state police, and it
    35  shall immediately notify the attorney general so  that  he  or  she  may

    36  intercede  and  take such actions on behalf of the dealer to secure such
    37  refund or credit.
    38    3. Within thirty days of the  effective  date  of  this  section,  any
    39  person, including a licensed firearm dealer, who has in his or her legal
    40  possession a used 50-caliber weapon shall personally deliver such weapon
    41  to  the  division  of  state police, and upon transferring ownership and
    42  possession to a duly designated officer thereof, shall  be  entitled  to
    43  receive  payment  in  an  amount  equal to the fair market value of such
    44  weapon, but not to exceed eight thousand five hundred dollars.
    45    4. The division of state police shall take such  action,  including  a
    46  public  campaign using the print media, television, radio or other means

    47  to notify persons of the existence of the program  established  in  this
    48  section.
    49    §  23. This act shall take effect immediately; provided, however, that
    50  sections one through twenty-one of this act shall  take  effect  on  the
    51  thirtieth  day  after  this  act  shall have become a law; and provided,
    52  further, that those sections of this act which provide that it shall  be
    53  unlawful to sell, exchange, give or dispose of a 50-caliber weapon shall
    54  take  effect  with  respect  to  a gunsmith or dealer in firearms on the
    55  fifth day after this act shall have become a law.