S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         7165
                              2015-2016 Regular Sessions
                                 I N  A S S E M B L Y
                                    April 27, 2015
                                      ___________
       Introduced  by  M. of A. COOK -- read once and referred to the Committee
         on Codes
       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  S 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.
   14    Criminal use of a firearm in the first degree is a class B felony.
   15    (2)  Sentencing.  Notwithstanding  any  other  provision of law to the
   16  contrary, when a person is convicted of criminal use of a firearm in the
   17  first degree as defined in subdivision one of this  section,  the  court
   18  shall  impose  an  additional  consecutive sentence of five years to the
   19  sentence imposed on the underlying  [class  B  violent]  felony  offense
   20  where  the  person convicted of such crime displays a loaded weapon from
   21  which a shot, readily capable of producing death or other serious injury
   22  may be discharged[,] OR WHAT APPEARS TO BE A  PISTOL,  REVOLVER,  RIFLE,
   23  SHOTGUN,  MACHINE  GUN OR OTHER FIREARM in furtherance of the commission
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04536-02-5
       A. 7165                             2
    1  of such crime, provided, however, that such  additional  sentence  shall
    2  not  be  imposed  if  the court, having regard to the nature and circum-
    3  stances of the crime and to the history and character of the  defendant,
    4  finds  on  the record that such additional consecutive sentence would be
    5  unduly harsh and that not imposing such  sentence  would  be  consistent
    6  with  the  public  safety and would not deprecate the seriousness of the
    7  crime.  Notwithstanding any other provision of law to the contrary,  the
    8  aggregate  of  the  five  year consecutive term imposed pursuant to this
    9  subdivision and the minimum term of the [indeterminate] sentence imposed
   10  on the underlying [class B violent]  felony  shall  constitute  the  new
   11  aggregate  minimum  term  of  imprisonment, and a person subject to such
   12  term shall be required to serve the entire aggregate  minimum  term  and
   13  shall  not  be  eligible  for  release  on parole or conditional release
   14  during such term. This subdivision shall not apply where the defendant's
   15  criminal liability for displaying a loaded weapon  from  which  a  shot,
   16  readily  capable  of  producing  death  or  other  serious injury may be
   17  discharged[,] OR WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,  SHOTGUN,
   18  MACHINE  GUN  OR OTHER FIREARM in furtherance of the commission of crime
   19  is based on the conduct of another pursuant to  section  20.00  of  this
   20  chapter.
   21    S 2. Section 265.08 of the penal law is REPEALED.
   22    S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
   23  as  amended  by  chapter  1  of  the laws of 2013, is amended to read as
   24  follows:
   25    (b) Class C violent felony offenses: an attempt to commit any  of  the
   26  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
   27  vated criminally negligent homicide as defined in section 125.11, aggra-
   28  vated manslaughter in the second degree as defined  in  section  125.21,
   29  aggravated  sexual  abuse  in  the  second  degree as defined in section
   30  130.67, assault on a peace officer, police officer, fireman or emergency
   31  medical services professional as defined in section 120.08, assault on a
   32  judge as defined in section 120.09, gang assault in the second degree as
   33  defined in section 120.06, strangulation in the first degree as  defined
   34  in  section  121.13, burglary in the second degree as defined in section
   35  140.25, robbery in the second degree as defined in section 160.10, crim-
   36  inal possession of a weapon in the second degree as defined  in  section
   37  265.03,  [criminal  use  of a firearm in the second degree as defined in
   38  section 265.08,] criminal sale of a firearm  in  the  second  degree  as
   39  defined  in section 265.12, criminal sale of a firearm with the aid of a
   40  minor as defined in section 265.14, aggravated criminal possession of  a
   41  weapon as defined in section 265.19, soliciting or providing support for
   42  an  act  of  terrorism in the first degree as defined in section 490.15,
   43  hindering prosecution of terrorism in the second degree  as  defined  in
   44  section  490.30, and criminal possession of a chemical weapon or biolog-
   45  ical weapon in the third degree as defined in section 490.37.
   46    S 4. Paragraph (c) of subdivision 4 of section 509-cc of  the  vehicle
   47  and  traffic  law,  as  amended  by  chapter 400 of the laws of 2011, is
   48  amended to read as follows:
   49    (c) The offenses referred to in subparagraph (i) of paragraph  (b)  of
   50  subdivision one and subparagraph (i) of paragraph (c) of subdivision two
   51  of  this  section  that  result in disqualification for a period of five
   52  years shall include a conviction under sections 100.10, 105.13,  115.05,
   53  120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
   54  125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,  140.17,
   55  140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
   56  220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,  230.00,
       A. 7165                             3
    1  230.05,  230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00,
    2  260.10, subdivision two of section 260.20 and sections  260.25,  265.02,
    3  265.03,  [265.08,] 265.09, 265.10, 265.12, 265.35 of the penal law or an
    4  attempt  to commit any of the aforesaid offenses under section 110.00 of
    5  the penal law, or any similar offenses committed under a former  section
    6  of  the  penal  law, or any offenses committed under a former section of
    7  the penal  law  which  would  constitute  violations  of  the  aforesaid
    8  sections  of the penal law, or any offenses committed outside this state
    9  which would constitute violations of the aforesaid sections of the penal
   10  law.
   11    S 5. The opening paragraph  of  paragraph  (f)  of  subdivision  1  of
   12  section  410 of the general business law, as added by chapter 509 of the
   13  laws of 1992, is amended to read as follows:
   14    Conviction of any of the following crimes subsequent to  the  issuance
   15  of  a  license  pursuant  to  this article:   fraud pursuant to sections
   16  170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and  190.65;  falsifying
   17  business  records  pursuant to section 175.10; grand larceny pursuant to
   18  article 155;  bribery  pursuant  to  sections  180.03,  180.08,  180.15,
   19  180.25,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
   20  perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
   21  sections 120.05, 120.10, 120.11, 120.12;  robbery  pursuant  to  article
   22  160;  homicide  pursuant  to  sections  125.25  and 125.27; manslaughter
   23  pursuant to sections 125.15 and 125.20; kidnapping and  unlawful  impri-
   24  sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
   25  possession  pursuant to sections 265.02, 265.03 and 265.04; criminal use
   26  of a [weapon] FIREARM pursuant to [sections 265.08 and] SECTION  265.09;
   27  criminal  sale  of  a  [weapon]  FIREARM pursuant to sections 265.11 and
   28  265.12; and sex offenses pursuant to  article  130  of  the  penal  law.
   29  Provided,  however,  that  for the purposes of this article, none of the
   30  following shall be considered criminal convictions or reported as  such:
   31  (i)  a conviction for which an executive pardon has been issued pursuant
   32  to the executive law; (ii) a  conviction  which  has  been  vacated  and
   33  replaced  by  a  youthful  offender  finding  pursuant  to article seven
   34  hundred  twenty  of  the  criminal  procedure  law,  or  the  applicable
   35  provisions  of  law of any other jurisdiction; or (iii) a conviction the
   36  records of which have been expunged or sealed pursuant to the applicable
   37  provisions of the laws of this state or of any other  jurisdiction;  and
   38  (iv)  a conviction for which other evidence of successful rehabilitation
   39  to remove the disability has been issued.
   40    S 6. This act shall take effect on the first of November next succeed-
   41  ing the date on which it shall have become a law.