STATE OF NEW YORK
        ________________________________________________________________________
                                          3113
                               2019-2020 Regular Sessions
                    IN SENATE
                                    February 4, 2019
                                       ___________
        Introduced  by  Sen.  AKSHAR -- 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 increasing  the  penalties
          for criminal use of a firearm in the second degree and criminal use of
          a firearm in the first degree
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 265.08 of the penal law, as added by chapter 233 of
     2  the laws of 1980, is amended to read as follows:
     3  § 265.08 Criminal use of a firearm in the second degree.
     4    A person is guilty of criminal use of a firearm in the  second  degree
     5  when  he  commits  any  class [C] B violent felony offense as defined in
     6  paragraph [(b)] (a) of subdivision one of section 70.02 and he either:
     7    (1) possesses a deadly weapon, if the weapon is a loaded  weapon  from
     8  which a shot, readily capable of producing death or other serious injury
     9  may be discharged; or
    10    (2)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
    11  machine gun or other firearm.
    12    Criminal use of a firearm in the second degree is a class [C] B  felo-
    13  ny.
    14    § 2. Section 265.09 of the penal law, as amended by chapter 650 of the
    15  laws of 1996, subdivision 2 as amended by chapter 1 of the laws of 2013,
    16  is amended to read as follows:
    17  § 265.09 Criminal use of a firearm in the first degree.
    18    (1)  A  person  is  guilty  of  criminal use of a firearm in the first
    19  degree when he commits [any class B violent felony offense as defined in
    20  paragraph (a) of subdivision one of section 70.02]  any  second  violent
    21  felony offense as defined in section 70.04 and he either:
    22    (a)  possesses  a deadly weapon, if the weapon is a loaded weapon from
    23  which a shot, readily capable of producing death or other serious injury
    24  may be discharged; or
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05562-02-9

        S. 3113                             2
     1    (b) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
     2  machine gun or other firearm.
     3    Criminal use of a firearm in the first degree is a class [B] A felony.
     4    (2)  Sentencing.  Notwithstanding  any  other  provision of law to the
     5  contrary, when a person is convicted of criminal use of a firearm in the
     6  first degree as defined in subdivision one of this  section,  the  court
     7  shall  impose  an  additional  consecutive sentence of five years to the
     8  sentence imposed on the underlying  [class  B  violent]  felony  offense
     9  where  the  person convicted of such crime displays a loaded weapon from
    10  which a shot, readily capable of producing death or other serious injury
    11  may be discharged, in furtherance  of  the  commission  of  such  crime,
    12  provided, however, that such additional sentence shall not be imposed if
    13  the  court,  having  regard to the nature and circumstances of the crime
    14  and to the history and character of the defendant, finds on  the  record
    15  that such additional consecutive sentence would be unduly harsh and that
    16  not  imposing  such  sentence would be consistent with the public safety
    17  and would not deprecate the seriousness of  the  crime.  Notwithstanding
    18  any  other  provision  of law to the contrary, the aggregate of the five
    19  year consecutive term imposed pursuant to this subdivision and the mini-
    20  mum term of the indeterminate sentence imposed on the underlying  [class
    21  B  violent]  felony  shall  constitute the new aggregate minimum term of
    22  imprisonment, and a person subject to such term  shall  be  required  to
    23  serve  the  entire  aggregate minimum term and shall not be eligible for
    24  release on parole or conditional release during such term. This subdivi-
    25  sion shall not  apply  where  the  defendant's  criminal  liability  for
    26  displaying a loaded weapon from which a shot, readily capable of produc-
    27  ing  death  or other serious injury may be discharged, in furtherance of
    28  the commission of crime is based on the conduct of another  pursuant  to
    29  section 20.00 of this chapter.
    30    §  3.  Paragraphs (a) and (b) of subdivision 1 of section 70.02 of the
    31  penal law, paragraph (a) as amended by chapter 189 of the laws  of  2018
    32  and  paragraph  (b)  as  amended by chapter 476 of the laws of 2018, are
    33  amended to read as follows:
    34    (a) Class B violent felony offenses: an attempt to  commit  the  class
    35  A-I  felonies  of  murder  in  the  second  degree as defined in section
    36  125.25, kidnapping in the first degree as defined in section 135.25, and
    37  arson in the first degree as defined in section 150.20; manslaughter  in
    38  the  first  degree as defined in section 125.20, aggravated manslaughter
    39  in the first degree as defined in section  125.22,  rape  in  the  first
    40  degree  as  defined  in section 130.35, criminal sexual act in the first
    41  degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
    42  first  degree  as  defined  in  section 130.70, course of sexual conduct
    43  against a child in the  first  degree  as  defined  in  section  130.75;
    44  assault  in the first degree as defined in section 120.10, kidnapping in
    45  the second degree as defined in section 135.20, burglary  in  the  first
    46  degree  as  defined  in  section  140.30,  arson in the second degree as
    47  defined in section 150.15, robbery in the first  degree  as  defined  in
    48  section  160.15, sex trafficking as defined in paragraphs (a) and (b) of
    49  subdivision five of section  230.34,  sex  trafficking  of  a  child  as
    50  defined  in  section  230.34-a, incest in the first degree as defined in
    51  section 255.27, criminal possession of a weapon in the first  degree  as
    52  defined  in  section  265.04,  criminal  use of a firearm in the [first]
    53  second degree as defined in section [265.09] 265.08, criminal sale of  a
    54  firearm  in  the  first  degree as defined in section 265.13, aggravated
    55  assault upon a police officer or a peace officer as defined  in  section
    56  120.11,  gang  assault in the first degree as defined in section 120.07,

        S. 3113                             3
     1  intimidating a victim or witness in  the  first  degree  as  defined  in
     2  section  215.17,  hindering prosecution of terrorism in the first degree
     3  as defined in section 490.35, criminal possession of a  chemical  weapon
     4  or  biological weapon in the second degree as defined in section 490.40,
     5  and criminal use of a chemical weapon or biological weapon in the  third
     6  degree as defined in section 490.47.
     7    (b)  Class  C violent felony offenses: an attempt to commit any of the
     8  class B felonies set forth in paragraph (a) of this subdivision;  aggra-
     9  vated criminally negligent homicide as defined in section 125.11, aggra-
    10  vated  manslaughter  in  the second degree as defined in section 125.21,
    11  aggravated sexual abuse in the  second  degree  as  defined  in  section
    12  130.67, assault on a peace officer, police officer, firefighter or emer-
    13  gency  medical  services  professional  as  defined  in  section 120.08,
    14  assault on a judge as defined in section 120.09,  gang  assault  in  the
    15  second  degree  as defined in section 120.06, strangulation in the first
    16  degree as defined in section 121.13, burglary in the  second  degree  as
    17  defined  in  section  140.25, robbery in the second degree as defined in
    18  section 160.10, criminal possession of a weapon in the second degree  as
    19  defined  in  section  265.03,  [criminal  use of a firearm in the second
    20  degree as defined in section 265.08,] criminal sale of a firearm in  the
    21  second  degree  as defined in section 265.12, criminal sale of a firearm
    22  with the aid of a minor as defined in section 265.14, aggravated  crimi-
    23  nal  possession  of a weapon as defined in section 265.19, soliciting or
    24  providing support for an act of terrorism in the first degree as defined
    25  in section 490.15, hindering prosecution  of  terrorism  in  the  second
    26  degree as defined in section 490.30, and criminal possession of a chemi-
    27  cal  weapon  or  biological  weapon  in  the  third degree as defined in
    28  section 490.37.
    29    § 4. This act shall take effect on the ninetieth day  after  it  shall
    30  have become a law.