STATE OF NEW YORK
________________________________________________________________________
2237--D
Cal. No. 210
2013-2014 Regular Sessions
IN SENATE
January 15, 2013
___________
Introduced by Sens. GOLDEN, AVELLA -- read twice and ordered printed,
and when printed to be committed to the Committee on Codes -- commit-
tee discharged, bill amended, ordered reprinted as amended and recom-
mitted to said committee -- reported favorably from said committee and
committed to the Committee on Rules -- reported favorably from said
committee to third reading, amended and ordered reprinted, retaining
its place in the order of third reading -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee -- recommitted to the Committee on Codes in accordance with Senate
Rule 6, sec. 8 -- reported favorably from said committee, ordered to
first report, amended on first report, ordered to a second report and
ordered reprinted, retaining its place in the order of second report
AN ACT to amend the penal law, the vehicle and traffic law and the
general business law, in relation to criminal use of a firearm in the
first degree and to repeal certain provisions of the penal law relat-
ing thereto
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, subdivision 2 as amended by chapter 1 of the laws
3 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] and he or
8 she either:
9 (a) possesses a deadly weapon, if the weapon is a loaded weapon from
10 which a shot, readily capable of producing death or other serious injury
11 may be discharged; or
12 (b) displays what appears to be a pistol, revolver, rifle, shotgun,
13 machine gun or other firearm.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03184-07-4
S. 2237--D 2
1 Criminal use of a firearm in the first degree is a class B felony.
2 (2) Sentencing. Notwithstanding any other provision of law to the
3 contrary, when a person is convicted of criminal use of a firearm in the
4 first degree as defined in subdivision one of this section, the court
5 shall impose an additional consecutive sentence of five years to the
6 sentence imposed on the underlying [class B violent] felony offense
7 where the person convicted of such crime displays a loaded weapon from
8 which a shot, readily capable of producing death or other serious injury
9 may be discharged[,] or what appears to be a pistol, revolver, rifle,
10 shotgun, machine gun or other firearm in furtherance of the commission
11 of such crime, provided, however, that such additional sentence shall
12 not be imposed if the court, having regard to the nature and circum-
13 stances of the crime and to the history and character of the defendant,
14 finds on the record that such additional consecutive sentence would be
15 unduly harsh and that not imposing such sentence would be consistent
16 with the public safety and would not deprecate the seriousness of the
17 crime. Notwithstanding any other provision of law to the contrary, the
18 aggregate of the five year consecutive term imposed pursuant to this
19 subdivision and the minimum term of the [indeterminate] sentence imposed
20 on the underlying [class B violent] felony shall constitute the new
21 aggregate minimum term of imprisonment, and a person subject to such
22 term shall be required to serve the entire aggregate minimum term and
23 shall not be eligible for release on parole or conditional release
24 during such term. This subdivision shall not apply where the defendant's
25 criminal liability for displaying a loaded weapon from which a shot,
26 readily capable of producing death or other serious injury may be
27 discharged[,] or what appears to be a pistol, revolver, rifle, shotgun,
28 machine gun or other firearm in furtherance of the commission of crime
29 is based on the conduct of another pursuant to section 20.00 of this
30 chapter.
31 § 2. Section 265.08 of the penal law is REPEALED.
32 § 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
33 as amended by chapter 1 of the laws of 2013, is amended to read as
34 follows:
35 (b) Class C violent felony offenses: an attempt to commit any of the
36 class B felonies set forth in paragraph (a) of this subdivision; aggra-
37 vated criminally negligent homicide as defined in section 125.11, aggra-
38 vated manslaughter in the second degree as defined in section 125.21,
39 aggravated sexual abuse in the second degree as defined in section
40 130.67, assault on a peace officer, police officer, fireman or emergency
41 medical services professional as defined in section 120.08, assault on a
42 judge as defined in section 120.09, gang assault in the second degree as
43 defined in section 120.06, strangulation in the first degree as defined
44 in section 121.13, burglary in the second degree as defined in section
45 140.25, robbery in the second degree as defined in section 160.10, crim-
46 inal possession of a weapon in the second degree as defined in section
47 265.03, [criminal use of a firearm in the second degree as defined in
48 section 265.08,] criminal sale of a firearm in the second degree as
49 defined in section 265.12, criminal sale of a firearm with the aid of a
50 minor as defined in section 265.14, aggravated criminal possession of a
51 weapon as defined in section 265.19, soliciting or providing support for
52 an act of terrorism in the first degree as defined in section 490.15,
53 hindering prosecution of terrorism in the second degree as defined in
54 section 490.30, and criminal possession of a chemical weapon or biolog-
55 ical weapon in the third degree as defined in section 490.37.
S. 2237--D 3
1 § 4. Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
2 and traffic law, as amended by chapter 400 of the laws of 2011, is
3 amended to read as follows:
4 (c) The offenses referred to in subparagraph (i) of paragraph (b) of
5 subdivision one and subparagraph (i) of paragraph (c) of subdivision two
6 of this section that result in disqualification for a period of five
7 years shall include a conviction under sections 100.10, 105.13, 115.05,
8 120.03, 120.04, 120.04-a, 120.05, 120.10, 120.25, 121.12, 121.13,
9 125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55, 140.17,
10 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
11 220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00,
12 230.05, 230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00,
13 260.10, subdivision two of section 260.20 and sections 260.25, 265.02,
14 265.03, [265.08,] 265.09, 265.10, 265.12, 265.35 of the penal law or an
15 attempt to commit any of the aforesaid offenses under section 110.00 of
16 the penal law, or any similar offenses committed under a former section
17 of the penal law, or any offenses committed under a former section of
18 the penal law which would constitute violations of the aforesaid
19 sections of the penal law, or any offenses committed outside this state
20 which would constitute violations of the aforesaid sections of the penal
21 law.
22 § 5. The opening paragraph of paragraph (f) of subdivision 1 of
23 section 410 of the general business law, as added by chapter 509 of the
24 laws of 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] firearm pursuant to sections 265.11 and 265.12; and
39 sex offenses pursuant to article 130 of the penal law. Provided, howev-
40 er, that for the purposes of this article, none of the following shall
41 be 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 § 6. This act shall take effect on the first of November next succeed-
52 ing the date on which it shall have become a law.
