Amd S265.00, add SS265.45, 265.50, 265.55, 265.60, 265.65 & 265.70, Pen L; amd S396-ee, Gen Bus L; amd S305,
Ed L
Enacts the "children's weapon accident prevention act"; creates crimes of failure to store a weapon safely in the first and second degrees, aggravated failure to store a weapon, and criminally negligent storage of a weapon in the first and second degrees; provides affirmative defenses; directs the commissioner of education to develop a weapons safety program.
STATE OF NEW YORK
________________________________________________________________________
3098--A
2009-2010 Regular Sessions
IN SENATE
March 10, 2009
___________
Introduced by Sen. SCHNEIDERMAN -- read twice and ordered printed, and
when printed to be committed to the Committee on Codes -- recommitted
to the Committee on Codes in accordance with Senate Rule 6, sec. 8 --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the penal law, the general business law and the educa-
tion law, in relation to criminally negligent storage of a weapon and
weapons safety programs for children
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title; construction. 1. This act shall be known and
2 may be cited as the "children's weapon accident prevention act."
3 2. The provisions of this act shall not be construed to preempt or
4 supersede any local law the provisions of which are no less stringent or
5 restrictive than the provisions of this act.
6 § 2. Legislative findings and intent. The legislature finds that a
7 tragically large number of children have been accidentally killed or
8 seriously injured by negligently stored weapons; that placing weapons
9 within reach or easy access of children is irresponsible, encourages
10 such accidents, and should be prohibited, and that legislative action is
11 necessary to protect the safety of our children.
12 § 3. Section 265.00 of the penal law is amended by adding five new
13 subdivisions 24, 25, 26, 27 and 28 to read as follows:
14 24. "Weapon" means a "rifle", "shotgun", or "firearm" as otherwise
15 defined in subdivision three of this section.
16 25. "Locked box" means a safe, case or container which, when locked,
17 is incapable of being opened without the key, combination, or other
18 unlocking mechanism and is resistant to tampering by an unauthorized
19 person attempting to obtain access to and possession of the weapon or
20 ammunition contained therein. The division of state police shall develop
21 and promulgate rules and regulations setting forth the specific devices
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06818-07-0
S. 3098--A 2
1 or the minimum standards and criteria therefor which constitute an
2 effective locked box.
3 26. "Gun locking device" means an integrated design feature or an
4 attachable accessory that is resistant to tampering and is effective in
5 preventing the discharge of a weapon by a person who does not have
6 access to the key, combination or other mechanism used to disengage the
7 device.
8 27. "Loaded rifle" means any rifle loaded with ammunition or any rifle
9 which is possessed by one who, at the same time, possesses a quantity of
10 ammunition which may be used to discharge such rifle.
11 28. "Loaded shotgun" means any shotgun loaded with ammunition or any
12 shotgun which is possessed by one who, at the same time, possesses a
13 quantity of ammunition which may be used to discharge such shotgun.
14 § 4. The penal law is amended by adding six new sections 265.45,
15 265.50, 265.55, 265.60, 265.65 and 265.70 to read as follows:
16 § 265.45 Failure to store a weapon safely in the second degree.
17 A person is guilty of failure to store a weapon safely in the second
18 degree when he or she stores or otherwise leaves a weapon out of his or
19 her immediate possession or control without having first securely locked
20 such weapon in an appropriate locked box or rendered it incapable of
21 being fired by the use of a gun locking device appropriate to that weap-
22 on.
23 Failure to store a weapon safely in the second degree is a violation.
24 § 265.50 Failure to store a weapon safely in the first degree.
25 A person is guilty of failure to store a weapon safely in the first
26 degree when he or she commits the offense of failure to store a weapon
27 safely in the second degree as defined in section 265.45 of this article
28 and has been previously convicted of the offense of failure to store a
29 weapon safely in the second degree as defined in section 265.45 of this
30 article within the preceding five years.
31 Failure to store a weapon safely in the first degree is a class B
32 misdemeanor.
33 § 265.55 Aggravated failure to store a weapon safely.
34 A person is guilty of aggravated failure to store a weapon safely when
35 he or she commits the offense of failure to store a weapon safely in the
36 second degree as defined in section 265.45 of this article and such
37 weapon is removed from the premises or discharged by another person
38 under the age of eighteen.
39 Aggravated failure to store a weapon safely is a class A misdemeanor.
40 § 265.60 Criminally negligent storage of a weapon in the second degree.
41 1. A person is guilty of criminally negligent storage of a weapon in
42 the second degree when with criminal negligence, he or she stores or
43 leaves a loaded rifle, loaded shotgun or loaded firearm in any location
44 where such weapon is accessible to a person under the age of eighteen
45 and such weapon is discharged by such person under the age of eighteen,
46 which causes serious physical injury to such person under the age of
47 eighteen or any other person.
48 2. In any prosecution under this section it shall be an affirmative
49 defense that the defendant actively pursued all reasonable efforts to
50 retrieve or otherwise regain possession of such weapon prior to its
51 discharge.
52 3. The provisions of this section shall not apply if:
53 (a) such person under the age of eighteen gains access to such weapon
54 as a result of an unlawful entry to any premises by any person;
55 (b) such weapon is stored in a securely locked box which prevents
56 access to the weapon and any ammunition which may be used to discharge
S. 3098--A 3
1 such weapon is stored in a separate, securely locked box which prevents
2 access to such ammunition;
3 (c) such weapon is secured with a gun locking device which prevents
4 the weapon from discharging;
5 (d) such person under the age of eighteen possessed the loaded shotgun
6 or loaded rifle in compliance with a valid hunting license issued pursu-
7 ant to article eleven of the environmental conservation law;
8 (e) such weapon is in the possession or control of a police officer
9 while the officer is engaged in official duties; or
10 (f) such weapon is needed for the lawful purpose of self defense.
11 Criminally negligent storage of a weapon in the second degree is a
12 class E felony.
13 § 265.65 Criminally negligent storage of a weapon in the first degree.
14 1. A person is guilty of criminally negligent storage of a weapon in
15 the first degree when with criminal negligence, he or she stores or
16 leaves a loaded rifle, loaded shotgun or loaded firearm in any location
17 where such weapon is accessible to a person under the age of eighteen
18 and such weapon is discharged by such person under the age of eighteen,
19 which causes the death of such person under the age of eighteen or any
20 other person.
21 2. In any prosecution under this section it shall be an affirmative
22 defense that the defendant actively pursued all reasonable efforts to
23 retrieve or otherwise regain possession of such weapon prior to its
24 discharge.
25 3. The provisions of this section shall not apply if:
26 (a) such person under the age of eighteen gains access to such weapon
27 as a result of an unlawful entry to any premises by any person;
28 (b) such weapon is stored in a securely locked box which prevents
29 access to the weapon and any ammunition which may be used to discharge
30 such weapon is stored in a separate, securely locked box which prevents
31 access to the weapon;
32 (c) the weapon is secured with a gun locking device which prevents the
33 weapon from discharging;
34 (d) such person under the age of eighteen possessed the loaded shotgun
35 or loaded rifle in compliance with a valid hunting license issued pursu-
36 ant to article eleven of the environmental conservation law;
37 (e) such weapon is in the possession or control of a police officer
38 while the officer is engaged in official duties; or
39 (f) such weapon is needed for the lawful purpose of self defense.
40 Criminally negligent storage of a weapon in the first degree is a
41 class D felony.
42 § 265.70 Criminally negligent storage of a weapon in the first and
43 second degree; application.
44 If a person who is suspected of violating section 265.60 or 265.65 of
45 this article is the parent or guardian of a child who is injured or who
46 dies as the result of such violation, the district attorney shall
47 consider, among other factors, the impact of the injury or death on the
48 person who is suspected of violating section 265.60 or 265.65 of this
49 article when deciding whether or not to prosecute such person for such
50 crime.
51 § 5. The section heading and subdivision 2 of section 396-ee of the
52 general business law, as added by chapter 189 of the laws of 2000, are
53 amended to read as follows:
54 Sale of certain weapons; locking devices and locked boxes therefor.
55 (2) Every person, firm or corporation engaged in the retail business
56 of selling rifles, shotguns or firearms, as such terms are defined in
S. 3098--A 4
1 section 265.00 of the penal law, shall, in the place where such rifles,
2 shotguns or firearms are displayed or transferred to the purchaser, post
3 a notice conspicuously stating in bold print that: "The use of a gun
4 locking device or [safety lock] a locked box is only one aspect of
5 responsible firearm storage. For increased safety firearms should be
6 stored unloaded and locked in a location that is both separate from
7 their ammunition and inaccessible to children and any other unauthorized
8 person. Leaving rifles, shotguns, and firearms accessible to a person
9 under eighteen is a crime in New York state."
10 § 6. Section 305 of the education law is amended by adding a new
11 subdivision 42 to read as follows:
12 42. The commissioner shall in cooperation with the division of crimi-
13 nal justice services develop a weapons safety program designed to
14 protect children from the risk of gun-related death and injury. Such
15 program shall be designed to teach children to follow an effective safe-
16 ty procedure when they are exposed to a gun, shall specifically warn
17 children that contact with guns can result in serious injury or death
18 and shall have been proven to be effective to prevent injury through
19 formal evaluation by objective public health and education profes-
20 sionals. Such program may be used in public and nonpublic schools at the
21 discretion of the local school board of education or board of trustees,
22 whichever is applicable. The commissioner shall submit an evaluation
23 report on this program to the governor, the speaker of the assembly, the
24 temporary president of the senate, the chair of the assembly codes
25 committee and the chair of the senate codes committee no later than
26 January first, two thousand twelve.
27 § 7. If any word, phrase, clause, sentence, paragraph, section, or
28 part of this act shall be adjudged by any court of competent jurisdic-
29 tion to be invalid, such judgment shall not affect, impair, or invali-
30 date the remainder thereof, but shall be confined in its operation to
31 the words, phrase, clause, sentence, paragraph, section, or part thereof
32 directly involved in the controversy in which such judgment shall have
33 been rendered.
34 § 8. This act shall take effect on the first of November next succeed-
35 ing the date on which it shall have become a law, provided, however,
36 that sections three and four of this act shall take effect May 1, 2011;
37 provided, further, that section five of this act shall take effect March
38 1, 2011 except that any rule or regulation necessary for the timely
39 implementation of section five of this act may be promulgated on or
40 before such date.
