Rpld S265.08, amd SS265.09 & 70.02, Pen L; amd S410, Gen Bus L
Provides for a mandatory five year period of imprisonment for persons convicted of committing any crime with the use of a firearm for a first offense and ten years for a second or subsequent offense.
STATE OF NEW YORK
________________________________________________________________________
423
2009-2010 Regular Sessions
IN ASSEMBLY(Prefiled)
January 7, 2009
___________
Introduced by M. of A. SEMINERIO -- read once and referred to the
Committee on Codes
AN ACT to amend the penal law, in relation to crimes committed with the
use of a firearm; to amend the general business law, the penal law,
and the vehicle and traffic law, in relation to making technical
corrections thereto; and to repeal section 265.08 of the penal law
relating to crimes committed with the use of a firearm
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 265.08 of the penal law is REPEALED.
2 § 2. Section 265.09 of the penal law, as amended by chapter 650 of the
3 laws of 1996, 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 commits any [class B] violent felony offense as defined
7 in [paragraph (a) of] subdivision one of section 70.02 and he either:
8 (a) possesses a deadly weapon, if the weapon is a loaded weapon from
9 which a shot, readily capable of producing death or other serious injury
10 may be discharged; or
11 (b) displays what appears to be a pistol, revolver, rifle, shotgun,
12 machine gun or other firearm.
13 Criminal use of a firearm [in the first degree] is a class B felony.
14 (2) Sentencing. Notwithstanding any other provision of law to the
15 contrary, when a person is convicted of criminal use of a firearm [in
16 the first degree] as defined in subdivision one of this section, the
17 court shall impose for a first conviction an additional consecutive
18 sentence of five years and for a second or subsequent conviction an
19 additional consecutive sentence of ten years to the minimum term of an
20 indeterminate sentence imposed on the underlying [class B] violent felo-
21 ny offense where the person convicted of such crime displays a loaded
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01980-01-9
A. 423 2
1 weapon from which a shot, readily capable of producing death or other
2 serious injury may be discharged, in furtherance of the commission of
3 such crime, provided, however, that such additional sentence shall not
4 be imposed if the court, having regard to the nature and circumstances
5 of the crime and to the history and character of the defendant, finds on
6 the record that such additional consecutive sentence would be unduly
7 harsh and that not imposing such sentence would be consistent with the
8 public safety and would not deprecate the seriousness of the crime.
9 Notwithstanding any other provision of law to the contrary, the aggre-
10 gate of the five or ten year consecutive term imposed pursuant to this
11 subdivision and the minimum term of the indeterminate sentence imposed
12 on the underlying [class B] violent felony shall constitute the new
13 aggregate minimum term of imprisonment, and a person subject to such
14 term shall be required to serve the entire aggregate minimum term and
15 shall not be eligible for release on parole or conditional release
16 during such term. This subdivision shall not apply where the defendant's
17 criminal liability for displaying a loaded weapon from which a shot,
18 readily capable of producing death or other serious injury may be
19 discharged, in furtherance of the commission of crime is based on the
20 conduct of another pursuant to section 20.00 of [the penal law] this
21 chapter.
22 § 3. The opening paragraph of paragraph f of subdivision 1 of section
23 410 of the general business law, as added by chapter 509 of the laws of
24 1992, is amended to read as follows:
25 Conviction of any of the following crimes subsequent to the issuance
26 of a license pursuant to this article: fraud pursuant to sections
27 170.10, 170.15, 176.15, 176.20, 176.25, 176.30 and 190.65; falsifying
28 business records pursuant to section 175.10; grand larceny pursuant to
29 article 155; bribery pursuant to sections 180.03, 180.08, 180.15,
30 180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
31 perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
32 sections 120.05, 120.10, 120.11, 120.12; robbery pursuant to article
33 160; homicide pursuant to sections 125.25 and 125.27; manslaughter
34 pursuant to sections 125.15 and 125.20; kidnapping and unlawful impri-
35 sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
36 possession pursuant to sections 265.02, 265.03 and 265.04; criminal use
37 of a weapon pursuant to [sections 265.08 and] section 265.09; criminal
38 sale of a weapon pursuant to sections 265.11 and 265.12; and sex
39 offenses pursuant to article 130 of the penal law. Provided, however,
40 that for the purposes of this article, none of the following shall be
41 considered criminal convictions or reported as such: (i) a conviction
42 for which an executive pardon has been issued pursuant to the executive
43 law; (ii) a conviction which has been vacated and replaced by a youthful
44 offender finding pursuant to article seven hundred twenty of the crimi-
45 nal procedure law, or the applicable provisions of law of any other
46 jurisdiction; or (iii) a conviction the records of which have been
47 expunged or sealed pursuant to the applicable provisions of the laws of
48 this state or of any other jurisdiction; and (iv) a conviction for which
49 other evidence of successful rehabilitation to remove the disability has
50 been issued.
51 § 4. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
52 as separately amended by chapters 764 and 765 of the laws of 2005, is
53 amended to read as follows:
54 (b) Class C violent felony offenses: an attempt to commit any of the
55 class B felonies set forth in paragraph (a); aggravated criminally
56 negligent homicide as defined in section 125.11, aggravated manslaughter
A. 423 3
1 in the second degree as defined in section 125.21, aggravated sexual
2 abuse in the second degree as defined in section 130.67, assault on a
3 peace officer, police officer, fireman or emergency medical services
4 professional as defined in section 120.08, gang assault in the second
5 degree as defined in section 120.06, burglary in the second degree as
6 defined in section 140.25, robbery in the second degree as defined in
7 section 160.10, criminal possession of a weapon in the second degree as
8 defined in section 265.03[, criminal use of a firearm in the second
9 degree as defined in section 265.08], criminal sale of a firearm in the
10 second degree as defined in section 265.12, criminal sale of a firearm
11 with the aid of a minor as defined in section 265.14, soliciting or
12 providing support for an act of terrorism in the first degree as defined
13 in section 490.15, hindering prosecution of terrorism in the second
14 degree as defined in section 490.30, and criminal possession of a chemi-
15 cal weapon or biological weapon in the third degree as defined in
16 section 490.37.
17 § 5. This act shall take effect on the first of November next succeed-
18 ing the date on which it shall have become a law.
