STATE OF NEW YORK
        ________________________________________________________________________
                                         5808--A
                               2017-2018 Regular Sessions
                    IN SENATE
                                       May 1, 2017
                                       ___________
        Introduced  by Sen. GIANARIS -- read twice and ordered printed, and when
          printed to be committed to the Committee on Codes  --  recommitted  to
          the  Committee  on  Codes  in accordance with Senate Rule 6, sec. 8 --
          committee discharged, bill amended, ordered reprinted as  amended  and
          recommitted to said committee
        AN  ACT  to  amend  the penal law, in relation to enacting the effective
          background check act of 2018, in relation to establishing  a  ten  day
          period  for background checks for the purchase of a firearm, rifle, or
          shotgun, and in relation to requiring gunsmiths or  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, rifles, or shotguns
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. This act shall be known and may be cited as the  "effective
     2  background check act of 2018".
     3    §  2.  The penal law is amended by adding a new section 400.20 to read
     4  as follows:
     5  § 400.20 Time period for a background check for sale or  transfer  of  a
     6             firearm, rifle, or shotgun.
     7    1.  Whenever  federal or state law requires that a background check be
     8  conducted through the national instant criminal background check  system
     9  in  accordance  with  the  provisions of 18 U.S.C. 922(t) before sale or
    10  transfer of a firearm, rifle, or shotgun, no person shall complete  such
    11  sale or transfer unless:
    12    (a)  the system provides a unique identification number pursuant to 18
    13  U.S.C. 922(t)(1)(b)(i), indicating that there is no information  in  the
    14  system  that would disqualify the applicant from receiving or possessing
    15  a firearm, rifle, or shotgun; or
    16    (b) ten business days, as defined in 18 U.S.C. 922(t)(1)(b)(ii),  have
    17  elapsed  from the date such background check was initiated by contacting
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD02944-03-7

        S. 5808--A                          2
     1  the system, and the system has  not  indicated  that  the  applicant  is
     2  disqualified from receiving or possessing a firearm, rifle, or shotgun.
     3    2.  Notwithstanding  any  other  provision of law, a violation of this
     4  section shall be a class A misdemeanor.
     5    § 3. Section 265.17 of the penal law, as amended by chapter 1  of  the
     6  laws of 2013, is amended to read as follows:
     7  § 265.17 Criminal purchase or disposal of a weapon.
     8    1.  A  person  is  guilty of criminal purchase or disposal of a weapon
     9  when:
    10    [1.] (a) Knowing that he or she is prohibited by law from possessing a
    11  firearm, rifle or shotgun because of a prior conviction  or  because  of
    12  some  other  disability  which  would  render  him  or her ineligible to
    13  lawfully possess a firearm, rifle or shotgun in this state, such  person
    14  purchases a firearm, rifle or shotgun from another person; or
    15    [2.]  (b)  Knowing  that  it  would  be unlawful for another person to
    16  possess a firearm, rifle or shotgun, he  or  she  purchases  a  firearm,
    17  rifle or shotgun for, on behalf of, or for the use of such other person;
    18  or
    19    [3.]  (c)  Knowing  that  another  person  is  prohibited  by law from
    20  possessing a firearm, rifle or shotgun because of a prior conviction  or
    21  because  of some other disability which would render him or her ineligi-
    22  ble to lawfully possess a firearm, rifle or shotgun  in  this  state,  a
    23  person disposes of a firearm, rifle or shotgun to such other person.
    24    2.  A gunsmith or dealer in firearms, rifles, or shotguns shall report
    25  within twenty-four hours to the division of state police, or in the city
    26  of New York the police department of such city, any  instance  in  which
    27  any  person  attempts to purchase a firearm, rifle, or shotgun from such
    28  gunsmith or dealer, or through a sale, exchange, or disposal as provided
    29  in section eight hundred ninety-eight of the general business law, if  a
    30  background  check  such  gunsmith  or dealer conducts in connection with
    31  such attempted purchase, in the  national  instant  criminal  background
    32  check  system  or any successor system, indicates a "denied" response as
    33  defined in 28 C.F.R. § 25.6. Such gunsmith or dealer shall keep with the
    34  other records required under subdivision twelve  of  section  400.00  of
    35  this  chapter,  a  record  approved  as to form by the superintendent of
    36  state police, or in the city of New York by such city's  police  commis-
    37  sioner, of having made each report required by this subdivision.
    38    Criminal purchase or disposal of a weapon is a class D felony.
    39    § 4. Section 400.00 of the penal law is amended by adding a new subdi-
    40  vision 12-b to read as follows:
    41    12-b.  Employees of a gunsmith or dealer in firearms, rifles, or shot-
    42  guns.   (a) No person shall be employed  by  a  gunsmith  or  dealer  in
    43  firearms, rifles, or shotguns for duties that include handling, selling,
    44  or  otherwise disposing of firearms, rifles, or shotguns, if such person
    45  is prohibited from receiving or possessing firearms, rifles, or shotguns
    46  under federal law or if such person would be ineligible for a license to
    47  possess firearms, rifles, or shotguns under  paragraph  (c)  or  (e)  of
    48  subdivision one of this section.
    49    (b)  No  gunsmith  or  dealer  in  firearms, rifles, or shotguns shall
    50  employ a person whose duties include  handling,  selling,  or  otherwise
    51  disposing  of  firearms, rifles, or shotguns, unless: (i) such person is
    52  eighteen years of age or older and has been  issued  an  employee  back-
    53  ground check certificate from the division of criminal justice services;
    54  or  (ii)  such  person has obtained and possesses a valid license issued
    55  under the provisions of this section or section 400.01 of this  article;

        S. 5808--A                          3
     1  or (iii) such person is a police officer as defined in subdivision thir-
     2  ty-four of section 1.20 of the criminal procedure law.
     3    (c)  Applications  for employee background check certificates shall be
     4  submitted by the applicant's prospective employer  to  the  division  of
     5  criminal  justice services in a form approved by such division. Applica-
     6  tions must contain, at a minimum, the information required to conduct  a
     7  background  check  in  the  national  instant  criminal background check
     8  system. All applications must be signed and verified by the applicant.
     9    (d) Upon receipt of an application for an  employee  background  check
    10  certificate,  the  division of criminal justice services shall conduct a
    11  background check of the applicant in the national instant criminal back-
    12  ground check system. If the results of  the  background  check  indicate
    13  that  there  is  no information that would disqualify the applicant from
    14  receiving or possessing a firearm, rifle,  or  shotgun  under  state  or
    15  under federal law, the division of criminal justice services shall docu-
    16  ment  such  result  on  an employee background check certificate. If the
    17  background check results in a "delayed"  response  as  described  in  28
    18  C.F.R. § 25.6, the division of criminal justice services shall not issue
    19  an  employee background check certificate pending receipt of a follow-up
    20  "proceed" response from the national instant criminal  background  check
    21  system.
    22    (e)  The division of criminal justice services shall issue to qualify-
    23  ing employees an employee  background  check  certificate,  which  shall
    24  certify  that  a  background  check  was conducted on the holder of such
    25  certificate and that the  national  instant  criminal  background  check
    26  system  indicated  that there was no information in the system as of the
    27  date of the background check that would disqualify  the  applicant  from
    28  receiving  or possessing a firearm, rifle, or shotgun.  Such certificate
    29  shall become invalid upon the termination of the employee's  employment.
    30  Such  certificate  shall have the effect of authorizing such employee to
    31  handle, sell, or otherwise dispose of those firearms, rifles,  or  shot-
    32  guns that are lawfully possessed, sold or disposed of by the gunsmith or
    33  dealer  in  firearms,  rifles,  or  shotguns only while such employee is
    34  actually conducting business on behalf of  the  gunsmith  or  dealer  in
    35  firearms, rifles, or shotguns notwithstanding the fact that such weapons
    36  may  not be the type the employee would otherwise be licensed or author-
    37  ized to possess under New York law. When an employee is conducting busi-
    38  ness on behalf of a gunsmith or dealer in firearms, rifles, or  shotguns
    39  at  any  location other than the premises where such employee works, the
    40  employee shall have in his or her  possession  a  copy  of  his  or  her
    41  certificate or valid license issued under the provisions of this section
    42  or  section  400.01  of this article or proof that he or she is a police
    43  officer.  A copy of such certificate or license or proof that an employ-
    44  ee is a police officer shall be maintained by the gunsmith or dealer  in
    45  firearms, rifles, or shotguns on the premises where such employee works.
    46  All  certificates, licenses, or proof that an employee is a police offi-
    47  cer and copies referred to in this  paragraph  shall  be  produced  upon
    48  request by any police officer or peace officer acting pursuant to his or
    49  her special duties.
    50    (f)  For  the purpose of this subdivision, the term handling shall not
    51  include moving or carrying, in the normal course of business, a  secured
    52  crate or container that contains a firearm or firearms, rifle or rifles,
    53  or shotgun or shotguns, from one location to another within the premises
    54  of a gunsmith or dealer in firearms, rifles, or shotguns.

        S. 5808--A                          4
     1    (g) Any employment in violation of this subdivision shall constitute a
     2  violation on the part of both the employee and the gunsmith or dealer in
     3  firearms, rifles, or shotguns.
     4    § 5. This act shall take effect on the one hundred eightieth day after
     5  it shall have become a law, except that the division of criminal justice
     6  services  shall promulgate any rules or regulations or approve any forms
     7  necessary for applications for employee background check certificates to
     8  be submitted to and approved by such division and for certificates to be
     9  issued by such division pursuant to subdivision 12-b of  section  400.00
    10  of  the  penal law as added by section four of this act, and shall begin
    11  to issue such  certificates  to  qualifying  employees  before  the  one
    12  hundred eightieth day after this act shall have become a law.