STATE OF NEW YORK
        ________________________________________________________________________

                                          4714

                               2021-2022 Regular Sessions

                   IN ASSEMBLY

                                    February 5, 2021
                                       ___________

        Introduced  by M. of A. MIKULIN -- read once and referred to the Commit-
          tee on Codes

        AN ACT to amend the penal law, in relation to increasing  penalties  for
          criminal  use  of a firearm in the first degree when committing a drug
          related felony offense

          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 and subdivision 2 as amended by  chapter  1  of  the
     3  laws of 2013, is amended to read as follows:
     4  § 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 or commits
     8  any drug related felony offense as defined in sections  220.31,  220.34,
     9  220.39,  220.41, 220.43, 220.44 and 220.48 of this chapter and he or she
    10  either:
    11    (a) possesses a deadly weapon, if the weapon is a loaded  or  unloaded
    12  weapon  from  which  a shot, readily capable of producing death or other
    13  serious injury may be discharged; or
    14    (b) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
    15  machine gun or other firearm.
    16    Criminal use of a firearm in the first degree is a class B felony.
    17    (2)  Sentencing. (a) Notwithstanding any other provision of law to the
    18  contrary, when a person is convicted of criminal use of a firearm in the
    19  first degree as defined in subdivision one of this  section,  the  court
    20  shall  impose  an additional consecutive sentence of [five] ten years to
    21  the sentence imposed on the underlying class B violent felony offense or
    22  drug related felony offense where the person  convicted  of  such  crime
    23  displays  a loaded or unloaded weapon from which a shot, readily capable
    24  of producing death or other serious injury may be discharged or displays

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07705-01-1

        A. 4714                             2

     1  what appears to be a pistol, revolver, shotgun,  machine  gun  or  other
     2  firearm,  in  furtherance  of  the  commission of such crime[, provided,
     3  however, that such additional sentence  shall  not  be  imposed  if  the
     4  court, having regard to the nature and circumstances of the crime and to
     5  the  history  and  character  of the defendant, finds on the record that
     6  such additional consecutive sentence would be unduly harsh and that  not
     7  imposing  such  sentence  would be consistent with the public safety and
     8  would not deprecate the seriousness  of  the  crime].    The  additional
     9  sentence  shall  be  imposed  by  the court regardless of the nature and
    10  circumstances of the crime and to  the  history  and  character  of  the
    11  defendant. The district attorney of any jurisdiction shall be prohibited
    12  from dismissing this offense in the course of a plea bargain.
    13    (b)  Notwithstanding  any  other provision of law to the contrary, the
    14  aggregate of the [five] ten year consecutive term  imposed  pursuant  to
    15  this  subdivision  and  the  minimum  term of the indeterminate sentence
    16  imposed on the underlying class B violent felony or drug related  felony
    17  offense shall constitute the new aggregate minimum term of imprisonment,
    18  and  a person subject to such term shall be required to serve the entire
    19  aggregate minimum term and shall not be eligible for release  on  parole
    20  or  conditional  release  during such term. This subdivision shall [not]
    21  apply where the defendant's criminal liability for displaying  a  loaded
    22  or unloaded weapon from which a shot, readily capable of producing death
    23  or  other  serious injury may be discharged, or displays what appears to
    24  be a pistol, revolver, rifle, shotgun, machine gun or other firearm,  in
    25  furtherance of the commission of crime is based on the conduct of anoth-
    26  er pursuant to section 20.00 of this chapter.
    27    § 2. This act shall take effect on the one hundred eightieth day after
    28  it shall have become a law.