S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                          784
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                      (PREFILED)
                                    January 7, 2015
                                      ___________
       Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
         printed to be committed 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,
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD04536-02-5
       S. 784                              2
    1  SHOTGUN,  MACHINE  GUN OR OTHER FIREARM in furtherance of the commission
    2  of such crime, provided, however, that such  additional  sentence  shall
    3  not  be  imposed  if  the court, having regard to the nature and circum-
    4  stances  of the crime and to the history and character of the defendant,
    5  finds on the record that such additional consecutive sentence  would  be
    6  unduly  harsh  and  that  not imposing such sentence would be consistent
    7  with the public safety and would not deprecate the  seriousness  of  the
    8  crime.   Notwithstanding any other provision of law to the contrary, the
    9  aggregate of the five year consecutive term  imposed  pursuant  to  this
   10  subdivision and the minimum term of the [indeterminate] sentence imposed
   11  on  the  underlying  [class  B  violent] felony shall constitute the new
   12  aggregate minimum term of imprisonment, and a  person  subject  to  such
   13  term  shall  be  required to serve the entire aggregate minimum term and
   14  shall not be eligible for  release  on  parole  or  conditional  release
   15  during such term. This subdivision shall not apply where the defendant's
   16  criminal  liability  for  displaying  a loaded weapon from which a shot,
   17  readily capable of producing  death  or  other  serious  injury  may  be
   18  discharged[,]  OR WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE, SHOTGUN,
   19  MACHINE GUN OR OTHER FIREARM in furtherance of the commission  of  crime
   20  is  based  on  the  conduct of another pursuant to section 20.00 of this
   21  chapter.
   22    S 2. Section 265.08 of the penal law is REPEALED.
   23    S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
   24  as amended by chapter 1 of the laws of  2013,  is  amended  to  read  as
   25  follows:
   26    (b)  Class  C violent felony offenses: an attempt to commit any of the
   27  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
   28  vated criminally negligent homicide as defined in section 125.11, aggra-
   29  vated  manslaughter  in  the second degree as defined in section 125.21,
   30  aggravated sexual abuse in the  second  degree  as  defined  in  section
   31  130.67, assault on a peace officer, police officer, fireman or emergency
   32  medical services professional as defined in section 120.08, assault on a
   33  judge as defined in section 120.09, gang assault in the second degree as
   34  defined  in section 120.06, strangulation in the first degree as defined
   35  in section 121.13, burglary in the second degree as defined  in  section
   36  140.25, robbery in the second degree as defined in section 160.10, crim-
   37  inal  possession  of a weapon in the second degree as defined in section
   38  265.03, [criminal use of a firearm in the second degree  as  defined  in
   39  section  265.08,]  criminal  sale  of  a firearm in the second degree as
   40  defined in section 265.12, criminal sale of a firearm with the aid of  a
   41  minor  as defined in section 265.14, aggravated criminal possession of a
   42  weapon as defined in section 265.19, soliciting or providing support for
   43  an act of terrorism in the first degree as defined  in  section  490.15,
   44  hindering  prosecution  of  terrorism in the second degree as defined in
   45  section 490.30, and criminal possession of a chemical weapon or  biolog-
   46  ical weapon in the third degree as defined in section 490.37.
   47    S  4.  Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
   48  and traffic law, as amended by chapter 400  of  the  laws  of  2011,  is
   49  amended to read as follows:
   50    (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
   51  subdivision one and subparagraph (i) of paragraph (c) of subdivision two
   52  of this section that result in disqualification for  a  period  of  five
   53  years  shall include a conviction under sections 100.10, 105.13, 115.05,
   54  120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
   55  125.40,  125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55, 140.17,
   56  140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06,  220.09,
       S. 784                              3
    1  220.16,  220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00,
    2  230.05, 230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06,  245.00,
    3  260.10,  subdivision  two of section 260.20 and sections 260.25, 265.02,
    4  265.03,  [265.08,] 265.09, 265.10, 265.12, 265.35 of the penal law or an
    5  attempt to commit any of the aforesaid offenses under section 110.00  of
    6  the  penal law, or any similar offenses committed under a former section
    7  of the penal law, or any offenses committed under a  former  section  of
    8  the  penal  law  which  would  constitute  violations  of  the aforesaid
    9  sections of the penal law, or any offenses committed outside this  state
   10  which would constitute violations of the aforesaid sections of the penal
   11  law.
   12    S  5.  The  opening  paragraph  of  paragraph  (f) of subdivision 1 of
   13  section 410 of the general business law, as added by chapter 509 of  the
   14  laws of 1992, is amended to read as follows:
   15    Conviction  of  any of the following crimes subsequent to the issuance
   16  of a license pursuant to this  article:    fraud  pursuant  to  sections
   17  170.10,  170.15,  176.15,  176.20, 176.25, 176.30 and 190.65; falsifying
   18  business records pursuant to section 175.10; grand larceny  pursuant  to
   19  article  155;  bribery  pursuant  to  sections  180.03,  180.08, 180.15,
   20  180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45,  200.50;
   21  perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
   22  sections  120.05,  120.10,  120.11,  120.12; robbery pursuant to article
   23  160; homicide pursuant  to  sections  125.25  and  125.27;  manslaughter
   24  pursuant  to  sections 125.15 and 125.20; kidnapping and unlawful impri-
   25  sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
   26  possession pursuant to sections 265.02, 265.03 and 265.04; criminal  use
   27  of  a [weapon] FIREARM pursuant to [sections 265.08 and] SECTION 265.09;
   28  criminal sale of a [weapon] FIREARM  pursuant  to  sections  265.11  and
   29  265.12;  and  sex  offenses  pursuant  to  article 130 of the penal law.
   30  Provided, however, that for the purposes of this article,  none  of  the
   31  following  shall be considered criminal convictions or reported as such:
   32  (i) a conviction for which an executive pardon has been issued  pursuant
   33  to  the  executive  law;  (ii)  a  conviction which has been vacated and
   34  replaced by a  youthful  offender  finding  pursuant  to  article  seven
   35  hundred  twenty  of  the  criminal  procedure  law,  or  the  applicable
   36  provisions of law of any other jurisdiction; or (iii) a  conviction  the
   37  records of which have been expunged or sealed pursuant to the applicable
   38  provisions  of  the laws of this state or of any other jurisdiction; and
   39  (iv) a conviction for which other evidence of successful  rehabilitation
   40  to remove the disability has been issued.
   41    S 6. This act shall take effect on the first of November next succeed-
   42  ing the date on which it shall have become a law.