S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2023
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 9, 2013
                                      ___________
       Introduced  by  Sen. MARTINS -- 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
         certain  crimes  relating to firearms, and to repeal section 265.04 of
         such law, relating to criminal possession of a  weapon  in  the  first
         degree,  section  265.08  of  such  law, relating to criminal use of a
         firearm in the second degree and 265.13 of such law, relating to crim-
         inal sale of a firearm in the first degree
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1.  Section 265.01 of the penal law, as added by chapter 1041
    2  of the laws of 1974, subdivision 1 as amended by chapter 257 of the laws
    3  of 2008, subdivision 2 as amended by chapter 220 of the  laws  of  1988,
    4  subdivision 3 as amended by chapter 199 of the laws of 2006, subdivision
    5  4  as amended by chapter 357 of the laws of 2011, subdivision 7 as added
    6  by chapter 807 of the laws of 1981 and subdivision 8 as added by chapter
    7  646 of the laws of 1986, is amended to read as follows:
    8  S 265.01 Criminal possession of a weapon in the [fourth] THIRD degree.
    9    A person is guilty of criminal possession of a weapon in the  [fourth]
   10  THIRD degree when:
   11    (1)  He  or she possesses any firearm, electronic dart gun, electronic
   12  stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal
   13  knuckle knife, cane sword, billy, blackjack, bludgeon, plastic knuckles,
   14  metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type sling-
   15  shot or slungshot, shirken or "Kung Fu star"; or
   16    (2) He OR SHE possesses any  dagger,  dangerous  knife,  dirk,  razor,
   17  stiletto,  imitation pistol, or any other dangerous or deadly instrument
   18  or weapon with intent to use the same unlawfully against another; or
   19    (3) He or she knowingly has in his or her possession a rifle,  shotgun
   20  or  firearm  in  or  upon  a  building  or grounds, used for educational
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD07201-01-3
       S. 2023                             2
    1  purposes, of any school, college  or  university,  except  the  forestry
    2  lands, wherever located, owned and maintained by the State University of
    3  New York college of environmental science and forestry, or upon a school
    4  bus as defined in section one hundred forty-two of the vehicle and traf-
    5  fic  law, without the written authorization of such educational institu-
    6  tion; or
    7    (4) He OR SHE possesses  a  rifle,  shotgun,  antique  firearm,  black
    8  powder  rifle,  black powder shotgun, or any muzzle-loading firearm, and
    9  has been convicted of a felony or serious offense; or
   10    (5) He OR SHE possesses any dangerous or deadly weapon and  is  not  a
   11  citizen of the United States; or
   12    (6)  He  OR  SHE  is  a  person who has been certified not suitable to
   13  possess a rifle or shotgun, as defined in subdivision sixteen of section
   14  265.00, and refuses to yield possession of such rifle  or  shotgun  upon
   15  the demand of a police officer. Whenever a person is certified not suit-
   16  able to possess a rifle or shotgun, a member of the police department to
   17  which  such  certification is made, or of the state police, shall forth-
   18  with seize any rifle or shotgun possessed by such  person.  A  rifle  or
   19  shotgun  seized  as herein provided shall not be destroyed, but shall be
   20  delivered to the  headquarters  of  such  police  department,  or  state
   21  police,  and  there  retained  until  the aforesaid certificate has been
   22  rescinded by the director or physician in charge, or  other  disposition
   23  of  such  rifle  or shotgun has been ordered or authorized by a court of
   24  competent jurisdiction[.]; OR
   25    (7) He OR SHE knowingly possesses a  bullet  containing  an  explosive
   26  substance designed to detonate upon impact[.]; OR
   27    (8)  He  OR SHE possesses any armor piercing ammunition with intent to
   28  use the same unlawfully against another.
   29    Criminal possession of a weapon in the  [fourth]  THIRD  degree  is  a
   30  class [A misdemeanor] E FELONY.
   31    S 2. Section 265.02 of the penal law, as amended by chapter 764 of the
   32  laws of 2005, is amended to read as follows:
   33  S 265.02 Criminal possession of a weapon in the [third] SECOND degree.
   34    A  person  is guilty of criminal possession of a weapon in the [third]
   35  SECOND degree when:
   36    (1) Such person commits the crime of criminal possession of  a  weapon
   37  in  the  [fourth] THIRD degree as defined in subdivision one, two, three
   38  or five of section 265.01, and has  been  previously  convicted  of  any
   39  crime; or
   40    (2) Such person possesses any explosive or incendiary bomb, bombshell,
   41  firearm  silencer, machine-gun or any other firearm or weapon simulating
   42  a machine-gun and which is adaptable for such use; or
   43    (3) Such person knowingly possesses a machine-gun, firearm,  rifle  or
   44  shotgun  which  has  been  defaced  for  the  purpose  of concealment or
   45  prevention of the detection of a crime or misrepresenting  the  identity
   46  of such machine-gun, firearm, rifle or shotgun; or
   47    (5)  (i)  Such  person  possesses three or more firearms; or (ii) such
   48  person possesses a firearm and has been previously convicted of a felony
   49  or a class A misdemeanor defined in this chapter within the  five  years
   50  immediately  preceding the commission of the offense and such possession
   51  did not take place in the person's home or place of business; or
   52    (6) Such person knowingly possesses any disguised gun; or
   53    (7) Such person possesses an assault weapon; or
   54    (8) Such person possesses a large capacity ammunition feeding device.
   55    Criminal possession of a weapon in the  [third]  SECOND  degree  is  a
   56  class [D] C felony.
       S. 2023                             3
    1    S 3. Section 265.03 of the penal law, as amended by chapter 742 of the
    2  laws of 2006, subdivisions 1 and 3 as amended by chapter 745 of the laws
    3  of 2006, is amended to read as follows:
    4  S 265.03 Criminal possession of a weapon in the [second] FIRST degree.
    5    A  person is guilty of criminal possession of a weapon in the [second]
    6  FIRST degree when:
    7    (1) with intent to use  the  same  unlawfully  against  another,  such
    8  person:
    9    (a) possesses a machine-gun; or
   10    (b) possesses a loaded firearm; or
   11    (c) possesses a disguised gun; or
   12    (D)  POSSESSES  ANY  EXPLOSIVE  SUBSTANCE  WITH INTENT TO USE THE SAME
   13  UNLAWFULLY AGAINST THE PERSON OR PROPERTY OF ANOTHER; OR
   14    (2) such person possesses five or more firearms; or
   15    (3) such person possesses any loaded firearm.  Such  possession  shall
   16  not, except as provided in subdivision one or seven of section 265.02 of
   17  this  article,  constitute  a  violation  of  this  subdivision  if such
   18  possession takes place in such person's home or place of business.
   19    Criminal possession of a weapon in the  [second]  FIRST  degree  is  a
   20  class [C] B felony.
   21    S 4. Section 265.04 of the penal law is REPEALED.
   22    S 5. Section 265.08 of the penal law is REPEALED.
   23    S 6. Section 265.09 of the penal law, as amended by chapter 650 of the
   24  laws of 1996, is amended to read as follows:
   25  S 265.09 Criminal use of a firearm [in the first degree].
   26    (1)  A  person  is  guilty  of criminal use of a firearm [in the first
   27  degree] when he OR SHE commits any class B  violent  felony  offense  as
   28  defined  in  paragraph  (a)  of  subdivision one of section 70.02 OR ANY
   29  CLASS C VIOLENT FELONY OFFENSE AS DEFINED IN PARAGRAPH (B)  OF  SUBDIVI-
   30  SION ONE OF SECTION 70.02 and he OR SHE either:
   31    (a)  possesses  a deadly weapon, if the weapon is a loaded weapon from
   32  which a shot, readily capable of producing death or other serious injury
   33  may be discharged; or
   34    (b) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
   35  machine gun or other firearm.
   36    Criminal use of a firearm [in the first degree] is a class B felony.
   37    (2)  Sentencing.  Notwithstanding  any  other  provision of law to the
   38  contrary, when a person is convicted of criminal use of  a  firearm  [in
   39  the  first  degree]  as  defined in subdivision one of this section, the
   40  court shall impose an additional consecutive sentence of five  years  to
   41  the  minimum term of an indeterminate sentence imposed on the underlying
   42  class B OR CLASS C violent felony offense where the person convicted  of
   43  such  crime  displays a loaded weapon from which a shot, readily capable
   44  of producing death or other serious injury may be discharged, in  furth-
   45  erance  of  the  commission  of such crime, provided, however, that such
   46  additional sentence shall not be imposed if the court, having regard  to
   47  the nature and circumstances of the crime and to the history and charac-
   48  ter  of  the defendant, finds on the record that such additional consec-
   49  utive sentence would be unduly harsh and that not imposing such sentence
   50  would be consistent with the public safety and would not  deprecate  the
   51  seriousness of the crime.  Notwithstanding any other provision of law to
   52  the  contrary,  the  aggregate of the five year consecutive term imposed
   53  pursuant to this subdivision and the minimum term of  the  indeterminate
   54  sentence  imposed  on  the  underlying class B OR CLASS C violent felony
   55  shall constitute the new aggregate minimum term of imprisonment,  and  a
   56  person subject to such term shall be required to serve the entire aggre-
       S. 2023                             4
    1  gate  minimum  term  and  shall not be eligible for release on parole or
    2  conditional release during such term. This subdivision shall  not  apply
    3  where  the defendant's criminal liability for displaying a loaded weapon
    4  from  which  a shot, readily capable of producing death or other serious
    5  injury may be discharged, in furtherance of the commission of  crime  is
    6  based  on  the conduct of another pursuant to section 20.00 of the penal
    7  law.
    8    S 7. Section 265.11 of the penal law, as amended by chapter 764 of the
    9  laws of 2005, is amended to read as follows:
   10  S 265.11 Criminal sale of a firearm in the [third] SECOND degree.
   11    A person is guilty of criminal sale of a firearm in the [third] SECOND
   12  degree when such person is not authorized pursuant to law to  possess  a
   13  firearm and such person unlawfully either:
   14    (1) sells, exchanges, gives or disposes of a firearm or large capacity
   15  ammunition feeding device to another person; or
   16    (2) possesses a firearm with the intent to sell it.
   17    Criminal sale of a firearm in the [third] SECOND degree is a class [D]
   18  C felony.
   19    S 8. Section 265.13 of the penal law is REPEALED.
   20    S  9.  Section 265.16 of the penal law, as added by chapter 600 of the
   21  laws of 1992, the closing paragraph as amended by  chapter  654  of  the
   22  laws of 1998, is amended to read as follows:
   23  S 265.16 Criminal sale of a firearm to a minor.
   24    A person is guilty of criminal sale of a firearm to a minor when he OR
   25  SHE is not authorized pursuant to law to possess a firearm and he OR SHE
   26  unlawfully  sells,  exchanges, gives or disposes of a firearm to another
   27  person who is or reasonably appears to be less than  nineteen  years  of
   28  age who is not licensed pursuant to law to possess a firearm.
   29    Criminal sale of a firearm to a minor is a class [C] B felony.
   30    S  10. Section 265.17 of the penal law, as added by chapter 189 of the
   31  laws of 2000, is amended to read as follows:
   32  S 265.17 Criminal purchase of a weapon.
   33    A person is guilty of criminal purchase of a weapon when:
   34    1. Knowing that he or she is  prohibited  by  law  from  possessing  a
   35  firearm,  rifle  or  shotgun because of a prior conviction or because of
   36  some other disability which  would  render  him  or  her  ineligible  to
   37  lawfully  possess a firearm, rifle or shotgun in this state, such person
   38  attempts to purchase a firearm, rifle or shotgun from another person; or
   39    2. Knowing that it would be unlawful for another person to  possess  a
   40  firearm, rifle or shotgun, he or she purchases a firearm, rifle or shot-
   41  gun for, on behalf of, or for the use of such other person.
   42    Criminal purchase of a weapon is a class [A misdemeanor] E FELONY.
   43    S  11.  This  act  shall  take  effect  immediately and shall apply to
   44  offenses committed on or after such date.