S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2389
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                   January 22, 2015
                                      ___________
       Introduced  by  Sens.  GIANARIS,  ESPAILLAT,  HOYLMAN, KRUEGER, SAMPSON,
         SQUADRON, STAVISKY -- 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 the  unlawful  procurement
         of a firearm; to amend the general business law, in relation to estab-
         lishing  a  waiting period for the purchase of a firearm; and to amend
         the penal law, in relation to requiring licensed  firearms  businesses
         to  report  the  crime  of criminal purchase of a weapon and requiring
         background checks for employees who would be authorized to possess  or
         transfer firearms
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1.  The penal law is amended by adding a new section 265.50 to
    2  read as follows:
    3  S 265.50 UNLAWFUL PROCUREMENT OF A FIREARM.
    4    A PERSON IS GUILTY OF UNLAWFUL PROCUREMENT OF A FIREARM WHEN:
    5    1. HE OR SHE PURCHASES OR TAKES POSSESSION OF MORE  THAN  ONE  FIREARM
    6  FROM ANY DEALER IN FIREARMS DURING ANY THIRTY DAY PERIOD; OR
    7    2.  BEING A DEALER IN FIREARMS, HE OR SHE SELLS OR TRANSFERS A FIREARM
    8  TO ANY PERSON WHO HAS PURCHASED OR TAKEN POSSESSION OF A FIREARM  DURING
    9  THE PREVIOUS THIRTY DAYS.
   10    UNLAWFUL PROCUREMENT OF A FIREARM IS A CLASS A MISDEMEANOR.
   11    S 2. Section 265.20 of the penal law is amended by adding a new subdi-
   12  vision f to read as follows:
   13    F. SECTION 265.50 OF THIS ARTICLE SHALL NOT APPLY TO:
   14    1. ANY LAW ENFORCEMENT OR CORRECTIONS AGENCY, OR POLICE OR CORRECTIONS
   15  OFFICER  ACTING  WITHIN THE COURSE AND SCOPE OF HIS OR HER EMPLOYMENT OR
   16  OFFICIAL DUTIES;
   17    2. A UNITED STATES MARSHAL, MEMBER OF THE ARMED FORCES OF  THE  UNITED
   18  STATES  OR THE NATIONAL GUARD, OR A FEDERAL OFFICIAL, WHO IS REQUIRED TO
   19  POSSESS A FIREARM IN THE OPERATION OF HIS OR HER OFFICIAL DUTIES;
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03254-01-5
       S. 2389                             2
    1    3.  LICENSED  FIREARMS  MANUFACTURERS,  IMPORTERS  OR  DEALERS,  WHILE
    2  ENGAGED  IN  THE  COURSE  AND  SCOPE  OF  THEIR ACTIVITIES AS LICENSEES,
    3  PROVIDED THAT THE TRANSFERS ARE BETWEEN LICENSEES AND ALL SUCH LICENSEES
    4  ARE PROPERLY LICENSED UNDER FEDERAL, STATE AND LOCAL LAW;
    5    4. A GUNSMITH ACQUIRING FIREARMS SOLELY FOR THE PURPOSES OF SERVICE OR
    6  REPAIR, OR THE LAWFUL OWNER OF THE FIREARMS RETRIEVING THE FIREARMS BACK
    7  FROM SUCH A GUNSMITH;
    8    5. A COMMON CARRIER, WAREHOUSEMAN OR OTHER PERSON ENGAGED IN THE BUSI-
    9  NESS OF TRANSPORTING OR STORING GOODS, TO THE EXTENT THAT THE POSSESSION
   10  OR RECEIPT OF ANY FIREARM IS IN THE ORDINARY COURSE OF BUSINESS, AND NOT
   11  FOR THE PERSONAL USE OF ANY SUCH PERSON;
   12    6.  A  PERSON ACQUIRING FIREARMS BY OPERATION OF LAW UPON THE DEATH OF
   13  THE FORMER OWNER OF THE FIREARMS; OR
   14    7. A PERSON WHOSE FIREARM WAS STOLEN OR  IRRETRIEVABLY  LOST  AND  WHO
   15  CONSIDERS IT ESSENTIAL THAT THE FIREARM BE REPLACED IMMEDIATELY, IF:
   16    (A)  THE  PERSON  PROVIDES  THE SELLER OR TRANSFEROR WITH A COPY OF AN
   17  OFFICIAL POLICE REPORT DESCRIBING THE LOSS OR THEFT OF THE FIREARM.  THE
   18  OFFICIAL  POLICE REPORT MUST CONTAIN THE NAME AND ADDRESS OF THE FIREARM
   19  OWNER, A DESCRIPTION OF THE FIREARM, THE LOCATION OF THE LOSS OR  THEFT,
   20  THE  DATE  OF  THE  LOSS  OR  THEFT,  AND THE DATE THE LOSS OR THEFT WAS
   21  REPORTED TO THE LAW ENFORCEMENT AGENCY; AND
   22    (B) THE LOSS OR THEFT OCCURRED WITHIN  THIRTY  DAYS  OF  THE  PERSON'S
   23  ATTEMPT  TO  REPLACE  THE  FIREARM,  AS REFLECTED BY THE DATE OF LOSS OR
   24  THEFT ON THE OFFICIAL POLICE REPORT.
   25    S 3. The penal law is amended by adding a new section 400.15  to  read
   26  as follows:
   27  S 400.15 DUTIES OF DEALERS IN FIREARMS.
   28    1. EACH DEALER IN FIREARMS SHALL PRIOR TO THE SALE OF ANY FIREARM TO A
   29  PERSON REQUEST APPROVAL OF SUCH SALE TO SUCH PERSON FROM THE DIVISION OF
   30  CRIMINAL JUSTICE SERVICES.
   31    2.  UPON  RECEIPT  OF THE APPROVAL OF THE DIVISION OF CRIMINAL JUSTICE
   32  SERVICES OF A SALE OF A FIREARM, THE DEALER IN FIREARMS SHALL RECORD AND
   33  REPORT SUCH SALE TO THE DIVISION OF  CRIMINAL  JUSTICE  SERVICES  WITHIN
   34  TWENTY-FOUR HOURS.
   35    S  4. The general business law is amended by adding a new article 38-B
   36  to read as follows:
   37                                ARTICLE 38-B
   38                       WAITING PERIOD FOR PURCHASE OF
   39                                  FIREARMS
   40  SECTION 825. DEFINITIONS.
   41          826. WAITING PERIOD.
   42          827. EXEMPTIONS.
   43          828. PENALTY.
   44    S 825. DEFINITIONS. AS USED IN THIS SECTION:
   45    1.  "DEALER IN FIREARMS" HAS THE SAME MEANING AS THAT TERM IS  DEFINED
   46  IN SUBDIVISION NINE OF SECTION 265.00 OF THE PENAL LAW.
   47    2.  "FIREARM" HAS THE SAME MEANING AS THAT TERM IS DEFINED IN SUBDIVI-
   48  SION THREE OF SECTION 265.00 OF THE PENAL LAW.
   49    S 826. WAITING  PERIOD.  NO  DEALER  IN  FIREARMS  SHALL  DELIVER  ANY
   50  FIREARM, AND NO PERSON SHALL TAKE POSSESSION OF ANY FIREARM FROM A DEAL-
   51  ER IN FIREARMS UNLESS:
   52    1.  TEN  DAYS  HAVE  ELAPSED  FROM  THE DATE SUCH DEALER INITIATED THE
   53  NATIONAL INSTANT CRIMINAL BACKGROUND CHECK OF THE PURCHASER AS  REQUIRED
   54  BY  18  U.S.C.  S  922(T),  AFTER RECEIVING A COMPLETED FEDERAL FIREARMS
   55  TRANSACTION RECORD, FORM 4473, FROM THE PURCHASER; AND
       S. 2389                             3
    1    2. SUCH DEALER HAS RECEIVED NOTICE THAT THE PURCHASER HAS  PASSED  ALL
    2  BACKGROUND CHECKS REQUIRED BY FEDERAL, STATE AND LOCAL LAW.
    3    S  827.  EXEMPTIONS.  SECTION EIGHT HUNDRED TWENTY-SIX OF THIS ARTICLE
    4  SHALL NOT APPLY TO:
    5    1. ANY LAW ENFORCEMENT OR CORRECTIONAL AGENCY, OR  POLICE  OFFICER  OR
    6  CORRECTIONS  OFFICER  ACTING  WITHIN  THE  COURSE OR SCOPE OF HIS OR HER
    7  EMPLOYMENT;
    8    2. ANY FEDERAL OFFICER OR EMPLOYEE AUTHORIZED TO POSSESS  OR  CARRY  A
    9  FIREARM  IN THE COURSE OF HIS OR HER DUTIES, AND ANY MEMBER OF THE ARMED
   10  FORCES OF THE UNITED STATES OR THE NATIONAL GUARD;
   11    3. ANY MANUFACTURER, DISTRIBUTOR OR DEALER  OF  FIREARMS  WHEN  TRANS-
   12  FERRING WEAPONS TO A MANUFACTURER, DISTRIBUTOR OR DEALER;
   13    4.  ANY GUNSMITH LICENSED PURSUANT TO SECTION 400.00 OF THE PENAL LAW,
   14  RECEIVING A FIREARM FOR SERVICE OR REPAIR;
   15    5. ANY COMMON CARRIER OR OTHER PERSON ENGAGED, IN THE  COURSE  OF  ITS
   16  BUSINESS, IN THE BUSINESS OF STORING OR TRANSPORTING GOODS; AND
   17    6. ANY PERSON WHO ALREADY POSSESSES A VALID PERMIT PURSUANT TO ARTICLE
   18  FOUR HUNDRED OF THE PENAL LAW.
   19    S 828. PENALTY. ANY PERSON WHO VIOLATES THE PROVISIONS OF THIS ARTICLE
   20  SHALL BE GUILTY OF A CLASS A MISDEMEANOR.
   21    S  5.  Section 265.17 of the penal law, as amended by chapter 1 of the
   22  laws of 2013, is amended to read as follows:
   23  S 265.17 Criminal purchase or disposal of a weapon.
   24    1. A person is guilty of criminal purchase or  disposal  of  a  weapon
   25  when:
   26    [1.] (A) Knowing that he or she is prohibited by law from possessing a
   27  firearm,  rifle  or  shotgun because of a prior conviction or because of
   28  some other disability which  would  render  him  or  her  ineligible  to
   29  lawfully  possess a firearm, rifle or shotgun in this state, such person
   30  purchases a firearm, rifle or shotgun from another person; or
   31    [2.] (B) Knowing that it would  be  unlawful  for  another  person  to
   32  possess  a  firearm,  rifle  or  shotgun, he or she purchases a firearm,
   33  rifle or shotgun for, on behalf of, or for the use of such other person;
   34  or
   35    [3.] (C) Knowing  that  another  person  is  prohibited  by  law  from
   36  possessing  a firearm, rifle or shotgun because of a prior conviction or
   37  because of some other disability which would render him or her  ineligi-
   38  ble  to  lawfully  possess  a firearm, rifle or shotgun in this state, a
   39  person disposes of a firearm, rifle or shotgun to such other person.
   40    2. A GUNSMITH OR DEALER IN FIREARMS SHALL  REPORT  WITHIN  TWENTY-FOUR
   41  HOURS  TO  THE  DIVISION OF STATE POLICE, OR IN THE CITY OF NEW YORK THE
   42  POLICE DEPARTMENT OF  SUCH  CITY,  ANY  INSTANCE  IN  WHICH  ANY  PERSON
   43  ATTEMPTS  TO  PURCHASE A FIREARM, RIFLE OR SHOTGUN FROM SUCH GUNSMITH OR
   44  DEALER IF A  BACKGROUND  CHECK  SUCH  GUNSMITH  OR  DEALER  CONDUCTS  IN
   45  CONNECTION  WITH SUCH ATTEMPTED PURCHASE, IN THE NATIONAL INSTANT CRIMI-
   46  NAL BACKGROUND  CHECK  SYSTEM  OR  ANY  SUCCESSOR  SYSTEM,  INDICATES  A
   47  "DENIED" RESPONSE AS DEFINED IN 28 C.F.R. S 25.6. SUCH GUNSMITH OR DEAL-
   48  ER  SHALL  KEEP WITH THE OTHER RECORDS REQUIRED UNDER SUBDIVISION TWELVE
   49  OF SECTION 400.00 OF THIS CHAPTER, A RECORD APPROVED AS TO FORM  BY  THE
   50  SUPERINTENDENT  OF  STATE  POLICE,  OR  IN  THE CITY OF NEW YORK BY SUCH
   51  CITY'S POLICE COMMISSIONER, OF HAVING MADE EACH REPORT REQUIRED BY  THIS
   52  SUBDIVISION.
   53    Criminal purchase or disposal of a weapon is a class D felony.
   54    S 6. Section 400.00 of the penal law is amended by adding a new subdi-
   55  vision 12-b to read as follows:
       S. 2389                             4
    1    12-B.  EMPLOYEES  OF  A  GUNSMITH OR DEALER IN FIREARMS. (A) NO PERSON
    2  SHALL BE EMPLOYED BY A GUNSMITH OR DEALER IN FIREARMS  FOR  DUTIES  THAT
    3  INCLUDE  HANDLING,  SELLING, OR OTHERWISE DISPOSING OF FIREARMS, IF SUCH
    4  PERSON IS PROHIBITED FROM RECEIVING OR POSSESSING FIREARMS UNDER FEDERAL
    5  LAW  OR  IF  SUCH  PERSON  WOULD  BE INELIGIBLE FOR A LICENSE TO POSSESS
    6  FIREARMS UNDER PARAGRAPH (C) OR (E) OF SUBDIVISION ONE OF THIS SECTION.
    7    (B) NO GUNSMITH OR DEALER IN FIREARMS  SHALL  EMPLOY  A  PERSON  WHOSE
    8  DUTIES  INCLUDE  HANDLING,  SELLING, OR OTHERWISE DISPOSING OF FIREARMS,
    9  ABSENT AN EXEMPTION PURSUANT TO PARAGRAPHS ONE AND TWO OF SUBDIVISION  A
   10  OF SECTION 265.20 OF THIS CHAPTER, UNLESS: (I) SUCH PERSON IS TWENTY-ONE
   11  YEARS  OF  AGE OR OLDER OR IS A MEMBER OF THE UNITED STATES ARMED FORCES
   12  OR HAS BEEN HONORABLY DISCHARGED THEREFROM, AND SUCH EMPLOYEE  HAS  BEEN
   13  ISSUED  A  VALID  EMPLOYMENT  CERTIFICATE  FROM THE DIVISION OF CRIMINAL
   14  JUSTICE SERVICES; OR (II) SUCH PERSON HAS OBTAINED AND POSSESSES A VALID
   15  LICENSE ISSUED UNDER THE PROVISIONS OF THIS SECTION OR SECTION 400.01 OF
   16  THIS ARTICLE.
   17    (C) APPLICATIONS FOR EMPLOYMENT CERTIFICATES SHALL BE SUBMITTED BY THE
   18  APPLICANT'S PROSPECTIVE EMPLOYER TO THE  DIVISION  OF  CRIMINAL  JUSTICE
   19  SERVICES IN A FORM APPROVED BY SUCH DIVISION. APPLICATIONS MUST CONTAIN,
   20  AT  A MINIMUM, THE INFORMATION REQUIRED TO CONDUCT A BACKGROUND CHECK IN
   21  THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM. ALL  APPLICATIONS
   22  MUST BE SIGNED AND VERIFIED BY THE APPLICANT.
   23    (D)  UPON RECEIPT OF AN APPLICATION FOR AN EMPLOYMENT CERTIFICATE, THE
   24  DIVISION OF CRIMINAL JUSTICE SERVICES SHALL CONDUCT A  BACKGROUND  CHECK
   25  IN  THE  NATIONAL  INSTANT CRIMINAL BACKGROUND CHECK SYSTEM TO DETERMINE
   26  WHETHER THE APPLICANT IS QUALIFIED TO RECEIVE OR POSSESS A FIREARM UNDER
   27  STATE AND FEDERAL LAW. IF THE RESULTS OF THE BACKGROUND  CHECK  INDICATE
   28  THAT  THERE  IS  NO INFORMATION THAT WOULD DISQUALIFY THE APPLICANT FROM
   29  RECEIVING OR POSSESSING A FIREARM UNDER STATE OR UNDER FEDERAL LAW,  THE
   30  DIVISION  OF  CRIMINAL JUSTICE SERVICES SHALL DOCUMENT SUCH RESULT ON AN
   31  EMPLOYMENT CERTIFICATE. IF THE BACKGROUND CHECK RESULTS IN  A  "DELAYED"
   32  RESPONSE  AS  DESCRIBED  IN  28  C.F.R. S 25.6, THE DIVISION OF CRIMINAL
   33  JUSTICE SERVICES SHALL NOT CERTIFY THE APPLICANT FOR EMPLOYMENT  PENDING
   34  RECEIPT  OF  A  FOLLOW-UP  "PROCEED"  RESPONSE FROM THE NATIONAL INSTANT
   35  CRIMINAL BACKGROUND CHECK SYSTEM.
   36    (E) THE DIVISION OF CRIMINAL JUSTICE SERVICES SHALL ISSUE TO  QUALIFY-
   37  ING  EMPLOYEES  AN  EMPLOYMENT CERTIFICATE, WHICH SHALL CERTIFY THAT THE
   38  HOLDER OF SUCH CERTIFICATE IS ELIGIBLE TO  HANDLE,  SELL,  OR  OTHERWISE
   39  DISPOSE  OF  FIREARMS  OR WEAPONS ON BEHALF OF THE GUNSMITH OR DEALER IN
   40  FIREARMS. SUCH CERTIFICATE SHALL BECOME INVALID UPON THE TERMINATION  OF
   41  THE  EMPLOYEE'S  EMPLOYMENT.  SUCH  CERTIFICATE SHALL HAVE THE EFFECT OF
   42  AUTHORIZING SUCH EMPLOYEE TO HANDLE, SELL, OR OTHERWISE DISPOSE OF THOSE
   43  FIREARMS THAT ARE  LAWFULLY  POSSESSED,  SOLD  OR  DISPOSED  OF  BY  THE
   44  GUNSMITH  OR  DEALER  IN  FIREARMS  ONLY WHILE SUCH EMPLOYEE IS ACTUALLY
   45  CONDUCTING BUSINESS ON BEHALF OF THE  GUNSMITH  OR  DEALER  IN  FIREARMS
   46  NOTWITHSTANDING  THE  FACT  THAT  SUCH  WEAPONS  MAY NOT BE THE TYPE THE
   47  EMPLOYEE WOULD OTHERWISE BE LICENSED OR AUTHORIZED TO POSSESS UNDER  NEW
   48  YORK  LAW.  WHEN  AN  EMPLOYEE  IS  CONDUCTING  BUSINESS  ON BEHALF OF A
   49  GUNSMITH OR DEALER IN FIREARMS AT ANY LOCATION OTHER THAN  THE  PREMISES
   50  WHERE  SUCH  EMPLOYEE  WORKS,  THE  EMPLOYEE  SHALL  HAVE  IN HIS OR HER
   51  POSSESSION A COPY OF HIS OR HER EMPLOYMENT CERTIFICATE OR VALID  LICENSE
   52  ISSUED  UNDER  THE  PROVISIONS OF THIS SECTION OR SECTION 400.01 OF THIS
   53  ARTICLE OR DOCUMENTATION OF THE  EMPLOYEE'S  EXEMPTION  BASED  ON  PRIOR
   54  EMPLOYMENT.  COPIES OF SUCH CERTIFICATES OR LICENSES OR DOCUMENTATION OF
   55  EXEMPTION  SHALL  BE MAINTAINED BY THE GUNSMITH OR DEALER IN FIREARMS ON
   56  THE PREMISES WHERE SUCH  EMPLOYEE  WORKS.  ALL  CERTIFICATES,  LICENSES,
       S. 2389                             5
    1  DOCUMENTATION AND COPIES REFERRED TO IN THIS PARAGRAPH SHALL BE PRODUCED
    2  UPON  REQUEST  BY ANY POLICE OFFICER OR PEACE OFFICER ACTING PURSUANT TO
    3  HIS OR HER SPECIAL DUTIES.
    4    (F)  FOR  THE PURPOSE OF THIS SUBDIVISION, THE TERM HANDLING SHALL NOT
    5  INCLUDE MOVING OR CARRYING, IN THE NORMAL COURSE OF BUSINESS, A  SECURED
    6  CRATE  OR  CONTAINER  THAT  CONTAINS  A  FIREARM  OR  FIREARMS, FROM ONE
    7  LOCATION TO ANOTHER WITHIN THE PREMISES  OF  A  GUNSMITH  OR  DEALER  IN
    8  FIREARMS.
    9    (G) ANY EMPLOYMENT IN VIOLATION OF THIS SUBDIVISION SHALL CONSTITUTE A
   10  VIOLATION ON THE PART OF BOTH THE EMPLOYEE AND THE GUNSMITH OR DEALER IN
   11  FIREARMS.
   12    S 7. This act shall take effect on the one hundred eightieth day after
   13  it shall have become a law, except that the division of criminal justice
   14  services  shall promulgate any rules or regulations or approve any forms
   15  necessary for applications for employment certificates to  be  submitted
   16  to  and  approved by such division and for employment certificates to be
   17  issued by such division pursuant to subdivision 12-b of  section  400.00
   18  of the penal law as added by section six of this act, and shall begin to
   19  issue  such  certificates to qualifying employees before the one hundred
   20  eightieth day after this act shall have become a law.