S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         3941
                              2013-2014 Regular Sessions
                                 I N  A S S E M B L Y
                                   January 29, 2013
                                      ___________
       Introduced  by M. of A. WEISENBERG, PAULIN, V. LOPEZ, SCHIMEL, DINOWITZ,
         RAMOS, TITUS, CASTRO, ROBINSON, LIFTON, KAVANAGH,  BARRON,  ROSENTHAL,
         CLARK,  WRIGHT, MILLMAN, COLTON, WEINSTEIN -- Multi-Sponsored by -- M.
         of A. BOYLAND, BRENNAN, COOK, ENGLEBRIGHT,  GALEF,  GANTT,  GOTTFRIED,
         HEASTIE,  JACOBS, MAISEL, SCARBOROUGH -- read once and referred to the
         Committee on Codes
       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    S  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    S  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
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01339-01-3
       A. 3941                             2
    1  AND  PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC DEVICES
    2  OR THE MINIMUM STANDARDS  AND  CRITERIA  THEREFOR  WHICH  CONSTITUTE  AN
    3  EFFECTIVE LOCKED BOX.
    4    26.  "GUN  LOCKING  DEVICE"  MEANS  AN INTEGRATED DESIGN FEATURE OR AN
    5  ATTACHABLE ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE  IN
    6  PREVENTING  THE  DISCHARGE  OF  A  WEAPON  BY A PERSON WHO DOES NOT HAVE
    7  ACCESS TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE  THE
    8  DEVICE.
    9    27. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE
   10  WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF
   11  AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE.
   12    28.  "LOADED  SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION OR ANY
   13  SHOTGUN WHICH IS POSSESSED BY ONE WHO, AT THE  SAME  TIME,  POSSESSES  A
   14  QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN.
   15    S  4.  The  penal  law  is  amended by adding six new sections 265.45,
   16  265.50, 265.55, 265.60, 265.65 and 265.70 to read as follows:
   17  S 265.45 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE.
   18    A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN  THE  SECOND
   19  DEGREE  WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS OR
   20  HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED
   21  SUCH WEAPON IN AN APPROPRIATE LOCKED BOX OR  RENDERED  IT  INCAPABLE  OF
   22  BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP-
   23  ON.
   24    FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION.
   25  S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE.
   26    A  PERSON  IS  GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE FIRST
   27  DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE  A  WEAPON
   28  SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF THIS ARTICLE
   29  AND  HAS  BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO STORE A
   30  WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.45 OF  THIS
   31  ARTICLE WITHIN THE PRECEDING FIVE YEARS.
   32    FAILURE  TO  STORE  A  WEAPON  SAFELY IN THE FIRST DEGREE IS A CLASS B
   33  MISDEMEANOR.
   34  S 265.55 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY.
   35    A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN
   36  HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE
   37  SECOND DEGREE AS DEFINED IN SECTION 265.45  OF  THIS  ARTICLE  AND  SUCH
   38  WEAPON  IS  REMOVED  FROM  THE  PREMISES OR DISCHARGED BY ANOTHER PERSON
   39  UNDER THE AGE OF EIGHTEEN.
   40    AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR.
   41  S 265.60 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE.
   42    1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A  WEAPON  IN
   43  THE  SECOND  DEGREE  WHEN  WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
   44  LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY  LOCATION
   45  WHERE  SUCH  WEAPON  IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
   46  AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF  EIGHTEEN,
   47  WHICH  CAUSES  SERIOUS  PHYSICAL  INJURY TO SUCH PERSON UNDER THE AGE OF
   48  EIGHTEEN OR ANY OTHER PERSON.
   49    2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL  BE  AN  AFFIRMATIVE
   50  DEFENSE  THAT  THE  DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
   51  RETRIEVE OR OTHERWISE REGAIN POSSESSION OF  SUCH  WEAPON  PRIOR  TO  ITS
   52  DISCHARGE.
   53    3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
   54    (A)  SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
   55  AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
       A. 3941                             3
    1    (B) SUCH WEAPON IS STORED IN A  SECURELY  LOCKED  BOX  WHICH  PREVENTS
    2  ACCESS  TO  THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
    3  SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH  PREVENTS
    4  ACCESS TO SUCH AMMUNITION;
    5    (C)  SUCH  WEAPON  IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS
    6  THE WEAPON FROM DISCHARGING;
    7    (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
    8  OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
    9  ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
   10    (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF  A  POLICE  OFFICER
   11  WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
   12    (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
   13    CRIMINALLY  NEGLIGENT  STORAGE  OF  A WEAPON IN THE SECOND DEGREE IS A
   14  CLASS E FELONY.
   15  S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE.
   16    1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A  WEAPON  IN
   17  THE  FIRST  DEGREE  WHEN  WITH  CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
   18  LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY  LOCATION
   19  WHERE  SUCH  WEAPON  IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
   20  AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF  EIGHTEEN,
   21  WHICH  CAUSES  THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN OR ANY
   22  OTHER PERSON.
   23    2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL  BE  AN  AFFIRMATIVE
   24  DEFENSE  THAT  THE  DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
   25  RETRIEVE OR OTHERWISE REGAIN POSSESSION OF  SUCH  WEAPON  PRIOR  TO  ITS
   26  DISCHARGE.
   27    3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
   28    (A)  SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
   29  AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
   30    (B) SUCH WEAPON IS STORED IN A  SECURELY  LOCKED  BOX  WHICH  PREVENTS
   31  ACCESS  TO  THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
   32  SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH  PREVENTS
   33  ACCESS TO THE WEAPON;
   34    (C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE
   35  WEAPON FROM DISCHARGING;
   36    (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
   37  OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
   38  ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
   39    (E)  SUCH  WEAPON  IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
   40  WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
   41    (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
   42    CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN  THE  FIRST  DEGREE  IS  A
   43  CLASS D FELONY.
   44  S  265.70  CRIMINALLY  NEGLIGENT  STORAGE  OF  A WEAPON IN THE FIRST AND
   45               SECOND DEGREE; APPLICATION.
   46    IF A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR 265.65  OF
   47  THIS  ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR WHO
   48  DIES AS THE RESULT  OF  SUCH  VIOLATION,  THE  DISTRICT  ATTORNEY  SHALL
   49  CONSIDER,  AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON THE
   50  PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.60 OR  265.65  OF  THIS
   51  ARTICLE  WHEN  DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON FOR SUCH
   52  CRIME.
   53    S 5. The section heading and subdivision 2 of section  396-ee  of  the
   54  general  business  law, as added by chapter 189 of the laws of 2000, are
   55  amended to read as follows:
   56    Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
       A. 3941                             4
    1    (2) Every person, firm or corporation engaged in the  retail  business
    2  of  selling  rifles,  shotguns or firearms, as such terms are defined in
    3  section 265.00 of the penal law, shall, in the place where such  rifles,
    4  shotguns or firearms are displayed or transferred to the purchaser, post
    5  a  notice  conspicuously  stating in bold print that:  "The use of a GUN
    6  locking device or [safety lock] A LOCKED  BOX  is  only  one  aspect  of
    7  responsible  firearm  storage.   For increased safety firearms should be
    8  stored unloaded and locked in a location  that  is  both  separate  from
    9  their ammunition and inaccessible to children and any other unauthorized
   10  person.  LEAVING  RIFLES,  SHOTGUNS, AND FIREARMS ACCESSIBLE TO A PERSON
   11  UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE."
   12    S 6. Section 305 of the education law  is  amended  by  adding  a  new
   13  subdivision 43 to read as follows:
   14    43.  THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF CRIMI-
   15  NAL JUSTICE SERVICES  DEVELOP  A  WEAPONS  SAFETY  PROGRAM  DESIGNED  TO
   16  PROTECT  CHILDREN  FROM  THE  RISK OF GUN-RELATED DEATH AND INJURY. SUCH
   17  PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE-
   18  TY PROCEDURE WHEN THEY ARE EXPOSED TO A  GUN,  SHALL  SPECIFICALLY  WARN
   19  CHILDREN  THAT  CONTACT  WITH GUNS CAN RESULT IN SERIOUS INJURY OR DEATH
   20  AND SHALL HAVE BEEN PROVEN TO BE EFFECTIVE  TO  PREVENT  INJURY  THROUGH
   21  FORMAL  EVALUATION  BY  OBJECTIVE  PUBLIC  HEALTH  AND EDUCATION PROFES-
   22  SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE
   23  DISCRETION OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF  TRUSTEES,
   24  WHICHEVER  IS  APPLICABLE.  THE  COMMISSIONER SHALL SUBMIT AN EVALUATION
   25  REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE
   26  TEMPORARY PRESIDENT OF THE SENATE,  THE  CHAIR  OF  THE  ASSEMBLY  CODES
   27  COMMITTEE  AND  THE  CHAIR  OF  THE SENATE CODES COMMITTEE NO LATER THAN
   28  JANUARY FIRST, TWO THOUSAND SIXTEEN.
   29    S 7. If any word, phrase, clause,  sentence,  paragraph,  section,  or
   30  part  of  this act shall be adjudged by any court of competent jurisdic-
   31  tion to be invalid, such judgment shall not affect, impair,  or  invali-
   32  date  the  remainder  thereof, but shall be confined in its operation to
   33  the words, phrase, clause, sentence, paragraph, section, or part thereof
   34  directly involved in the controversy in which such judgment  shall  have
   35  been rendered.
   36    S 8. This act shall take effect on the first of November next succeed-
   37  ing  the  date  on  which it shall have become a law, provided, however,
   38  that sections three and four of this act shall take effect May 1,  2015;
   39  provided, further, that section five of this act shall take effect March
   40  1,  2015  except  that  any  rule or regulation necessary for the timely
   41  implementation of section five of this act  may  be  promulgated  on  or
   42  before such date.