S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2182
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   January 14, 2013
                                      ___________
       Introduced  by  Sen.  SMITH  -- 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 criminal sale,  possession
         and use of firearms
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. The closing paragraph of section 265.01 of the  penal  law,
    2  as  added  by  chapter  1041  of the laws of 1974, is amended to read as
    3  follows:
    4    Criminal possession of a weapon in the fourth  degree  is  a  class  A
    5  misdemeanor;  EXCEPT  THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE
    6  SHALL BE A CLASS D FELONY.
    7    S 2. The closing paragraph of section 265.02  of  the  penal  law,  as
    8  amended  by  chapter  764  of  the  laws  of 2005, is amended to read as
    9  follows:
   10    Criminal possession of a weapon in the third degree is a class D felo-
   11  ny; EXCEPT THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE SHALL BE A
   12  CLASS C FELONY.
   13    S 3. The closing paragraph of section 265.03  of  the  penal  law,  as
   14  amended  by  chapter  742  of  the  laws  of 2006, is amended to read as
   15  follows:
   16    Criminal possession of a weapon in the second degree is a class [C]  B
   17  felony.
   18    S  4.  The  closing  paragraph  of section 265.04 of the penal law, as
   19  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   20  follows:
   21    Criminal possession of a weapon in the first degree is a class B felo-
   22  ny; EXCEPT THAT IF SUCH WEAPON IS A FIREARM THEN SUCH OFFENSE SHALL BE A
   23  CLASS A FELONY.
   24    S  5.  The  closing  paragraph  of section 265.08 of the penal law, as
   25  added by chapter 233 of the laws of 1980, is amended to read as follows:
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03355-01-3
       S. 2182                             2
    1    Criminal use of a firearm in the second degree is a class [C] B  felo-
    2  ny.
    3    S  6.  The closing paragraph of subdivision 1 of section 265.09 of the
    4  penal law, as amended by chapter 650 of the laws of 1996, is amended  to
    5  read as follows:
    6    Criminal use of a firearm in the first degree is a class [B] A felony.
    7    S 7. Section 265.10 of the penal law, as amended by chapter 189 of the
    8  laws of 2000, subdivisions 1 and 2 as amended by chapter 257 of the laws
    9  of 2008, is amended to read as follows:
   10  S 265.10 Manufacture,  transport,  disposition and defacement of weapons
   11             and dangerous instruments and appliances.
   12    1. Any person who  manufactures  or  causes  to  be  manufactured  any
   13  machine-gun, assault weapon, large capacity ammunition feeding device or
   14  disguised gun is guilty of a class [D] C felony. Any person who manufac-
   15  tures or causes to be manufactured any switchblade knife, gravity knife,
   16  pilum  ballistic knife, metal knuckle knife, billy, blackjack, bludgeon,
   17  plastic knuckles, metal knuckles, Kung Fu star,  chuka  stick,  sandbag,
   18  sandclub or slungshot is guilty of a class A misdemeanor.
   19    2. Any person who transports or ships any machine-gun, firearm silenc-
   20  er,  assault  weapon  or  large  capacity  ammunition  feeding device or
   21  disguised gun, or who transports or ships as merchandise  five  or  more
   22  firearms,  is  guilty of a class [D] C felony. Any person who transports
   23  or ships as merchandise any firearm, other than an  assault  weapon,  IS
   24  GUILTY  OF  A  CLASS  D  FELONY,  ANY  PERSON WHO TRANSPORTS OR SHIPS AS
   25  MERCHANDISE ANY switchblade knife, gravity knife, pilum ballistic knife,
   26  billy, blackjack, bludgeon, plastic knuckles, metal  knuckles,  Kung  Fu
   27  star, chuka stick, sandbag or slungshot is guilty of a class A misdemea-
   28  nor.
   29    3.  Any  person who disposes of any machine-gun, assault weapon, large
   30  capacity ammunition feeding device or firearm silencer is  guilty  of  a
   31  class  [D]  C  felony. Any person who knowingly buys, receives, disposes
   32  of, or conceals a machine-gun, firearm, large capacity ammunition  feed-
   33  ing  device,  rifle or shotgun which has been defaced for the purpose of
   34  concealment or prevention of the detection of a crime or misrepresenting
   35  the identity of such machine-gun,  firearm,  large  capacity  ammunition
   36  feeding device, rifle or shotgun is guilty of a class [D] C felony.
   37    4.  Any  person  who  disposes  of  any of the weapons, instruments or
   38  appliances specified in subdivision one  of  section  265.01,  except  a
   39  firearm, is guilty of a class A misdemeanor, and he is guilty of a class
   40  D felony if he has previously been convicted of any crime.
   41    5.  Any person who disposes of any of the weapons, instruments, appli-
   42  ances or substances specified in section  265.05  to  any  other  person
   43  under the age of sixteen years is guilty of a class A misdemeanor.
   44    6.  Any  person  who  wilfully defaces any machine-gun, large capacity
   45  ammunition feeding device or firearm is guilty of a class [D] C felony.
   46    7. Any person, other than a wholesale dealer, or gunsmith or dealer in
   47  firearms  duly  licensed  pursuant  to  section  400.00,   lawfully   in
   48  possession  of a firearm, who disposes of the same without first notify-
   49  ing in writing the licensing officer in the city of New York  and  coun-
   50  ties  of  Nassau  and  Suffolk  and elsewhere in the state the executive
   51  department, division of state police, Albany, is guilty of  a  class  [A
   52  misdemeanor] D FELONY.
   53    S  8.  The  closing  paragraph  of section 265.11 of the penal law, as
   54  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   55  follows:
       S. 2182                             3
    1    Criminal  sale of a firearm in the third degree is a class [D] C felo-
    2  ny.
    3    S  9.  The  closing  paragraph  of section 265.12 of the penal law, as
    4  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
    5  follows:
    6    Criminal sale of a firearm in the second degree is a class [C] B felo-
    7  ny.
    8    S  10.  The  closing  paragraph of section 265.13 of the penal law, as
    9  amended by chapter 764 of the laws  of  2005,  is  amended  to  read  as
   10  follows:
   11    Criminal  sale of a firearm in the first degree is a class [B] A felo-
   12  ny.
   13    S 11. The closing paragraph of section 265.14 of  the  penal  law,  as
   14  amended  by  chapter  654  of  the  laws  of 1998, is amended to read as
   15  follows:
   16    Criminal sale of a firearm with the aid of a minor is a  class  [C]  B
   17  felony.
   18    S  12.  The  closing  paragraph of section 265.16 of the penal law, as
   19  amended by chapter 654 of the laws  of  1998,  is  amended  to  read  as
   20  follows:
   21    Criminal sale of a firearm to a minor is a class [C] B felony.
   22    S  13.  The  closing  paragraph of section 265.17 of the penal law, as
   23  added by chapter 189 of the laws of 2000, is amended to read as follows:
   24    Criminal purchase of a weapon is a class [A misdemeanor] D FELONY.
   25    S 14. Section 265.35 of the penal law, subdivisions  1,  2  and  3  as
   26  renumbered  by  chapter  1041 of the laws of 1974, is amended to read as
   27  follows:
   28  S 265.35 Prohibited use of weapons.
   29    1. Any person hunting with a dangerous weapon  in  any  county  wholly
   30  embraced  within the territorial limits of a city is guilty of a class A
   31  misdemeanor. WHERE SUCH DANGEROUS WEAPON IS A  FIREARM  SUCH  PERSON  IS
   32  GUILTY OF A CLASS D FELONY.
   33    2.  Any  person  who wilfully discharges a loaded firearm or any other
   34  gun, the propelling force of which is gunpowder, at  an  aircraft  while
   35  such  aircraft  is  in motion in the air or in motion or stationary upon
   36  the ground, or at any railway or street railroad train as defined by the
   37  public service law, or at a locomotive, car, bus or vehicle standing  or
   38  moving  upon  such  railway,  railroad or public highway, is guilty of a
   39  class [D] C felony if thereby the safety of any  person  is  endangered,
   40  and in every other case, of a class [E] D felony.
   41    3.  Any person who, otherwise than in self defense or in the discharge
   42  of official duty, (a) wilfully discharges any species of firearms,  air-
   43  gun  or  other  weapon,  or throws any other deadly missile, either in a
   44  public place, or in any place where there is any person to be endangered
   45  thereby, or, in Putnam county, within one-quarter mile of  any  occupied
   46  school  building  other  than  under  supervised instruction by properly
   47  authorized instructors although no injury  to  any  person  ensues;  (b)
   48  intentionally,  without  malice, points or aims any firearm or any other
   49  gun, the propelling force of which is gunpowder, at or toward any  other
   50  person;  (c) discharges, without injury to any other person, firearms or
   51  any other guns, the propelling force of which is gunpowder, while inten-
   52  tionally without malice, aimed at or toward any person; or (d) maims  or
   53  injures  any  other  person by the discharge of any firearm or any other
   54  gun, the propelling force of which is gunpowder, pointed or aimed inten-
   55  tionally, but without malice, at any such person, is guilty of  a  class
   56  [A misdemeanor] D FELONY.
       S. 2182                             4
    1    S  15.  Subdivision 1 of section 70.02 of the penal law, as separately
    2  amended by chapters 764 and 765 of the laws of 2005,  paragraph  (a)  as
    3  amended  by chapter 320 of the laws of 2006, paragraph (b) as amended by
    4  chapter 148 of the laws of 2011, paragraph (c) as amended by chapter 405
    5  of  the  laws  of  2010 and paragraph (d) as amended by chapter 7 of the
    6  laws of 2007, is amended to read as follows:
    7    1. Definition of a violent felony offense. A violent felony offense is
    8  A CLASS A VIOLENT FELONY OFFENSE, a class B violent  felony  offense,  a
    9  class  C  violent felony offense, a class D violent felony offense, or a
   10  class E violent felony offense, defined as follows:
   11    (a) CLASS A VIOLENT FELONY OFFENSES: CRIMINAL POSSESSION OF  A  WEAPON
   12  IN  THE  FIRST DEGREE AS DEFINED IN SECTION 265.04 WHERE THE WEAPON IS A
   13  FIREARM, CRIMINAL USE OF A FIREARM IN THE FIRST  DEGREE  AS  DEFINED  IN
   14  SECTION  265.09,  AND  CRIMINAL SALE OF A FIREARM IN THE FIRST DEGREE AS
   15  DEFINED IN SECTION 265.13.
   16    (B) Class B violent felony offenses: an attempt to  commit  the  class
   17  A-I  felonies  of  murder  in  the  second  degree as defined in section
   18  125.25, kidnapping in the first degree as defined in section 135.25, and
   19  arson in the first degree as defined in section 150.20; manslaughter  in
   20  the  first  degree as defined in section 125.20, aggravated manslaughter
   21  in the first degree as defined in section  125.22,  rape  in  the  first
   22  degree  as  defined  in section 130.35, criminal sexual act in the first
   23  degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
   24  first  degree  as  defined  in  section 130.70, course of sexual conduct
   25  against a child in the  first  degree  as  defined  in  section  130.75;
   26  assault  in the first degree as defined in section 120.10, kidnapping in
   27  the second degree as defined in section 135.20, burglary  in  the  first
   28  degree  as  defined  in  section  140.30,  arson in the second degree as
   29  defined in section 150.15, robbery in the first  degree  as  defined  in
   30  section 160.15, incest in the first degree as defined in section 255.27,
   31  criminal  possession  of  a  weapon  in  the  first degree as defined in
   32  section 265.04 WHERE THE WEAPON IS NOT A FIREARM,  [criminal  use  of  a
   33  firearm  in the first degree as defined in section 265.09, criminal sale
   34  of a firearm in the first degree as defined in section 265.13,] CRIMINAL
   35  POSSESSION OF A WEAPON IN  THE  SECOND  DEGREE  AS  DEFINED  IN  SECTION
   36  265.03,  CRIMINAL  USE  OF  A FIREARM IN THE SECOND DEGREE AS DEFINED IN
   37  SECTION 265.08, CRIMINAL SALE OF A  FIREARM  IN  THE  SECOND  DEGREE  AS
   38  DEFINED  IN SECTION 265.12, CRIMINAL SALE OF A FIREARM WITH THE AID OF A
   39  MINOR AS DEFINED IN 265.14, aggravated assault upon a police officer  or
   40  a  peace officer as defined in section 120.11, gang assault in the first
   41  degree as defined in section 120.07, intimidating a victim or witness in
   42  the first degree as defined in section 215.17, hindering prosecution  of
   43  terrorism  in  the  first  degree as defined in section 490.35, criminal
   44  possession of a chemical weapon  or  biological  weapon  in  the  second
   45  degree  as  defined  in  section  490.40, and criminal use of a chemical
   46  weapon or biological weapon in the third degree as  defined  in  section
   47  490.47.
   48    [(b)] (C) Class C violent felony offenses: an attempt to commit any of
   49  the  class  B felonies set forth in paragraph [(a)] (B) of this subdivi-
   50  sion; aggravated criminally negligent homicide  as  defined  in  section
   51  125.11,  aggravated  manslaughter  in  the  second  degree as defined in
   52  section 125.21, aggravated sexual abuse in the second degree as  defined
   53  in  section  130.67, assault on a peace officer, police officer, fireman
   54  or emergency medical services professional as defined in section 120.08,
   55  assault on a judge as defined in section 120.09,  gang  assault  in  the
   56  second  degree  as defined in section 120.06, strangulation in the first
       S. 2182                             5
    1  degree as defined in section 121.13, burglary in the  second  degree  as
    2  defined  in  section  140.25, robbery in the second degree as defined in
    3  section 160.10, [criminal possession of a weapon in the second degree as
    4  defined  in  section  265.03,  criminal  use  of a firearm in the second
    5  degree as defined in section 265.08, criminal sale of a firearm  in  the
    6  second  degree  as defined in section 265.12, criminal sale of a firearm
    7  with the aid  of  a  minor  as  defined  in  section  265.14,]  CRIMINAL
    8  POSSESSION  OF  A  WEAPON  IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION
    9  FIVE, SIX, SEVEN OR EIGHT OF  SECTION  265.02  WHERE  THE  WEAPON  IS  A
   10  FIREARM,  CRIMINAL  SALE  OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN
   11  SECTION 265.11, soliciting or providing support for an act of  terrorism
   12  in  the first degree as defined in section 490.15, hindering prosecution
   13  of terrorism in the second degree as  defined  in  section  490.30,  and
   14  criminal  possession  of  a  chemical weapon or biological weapon in the
   15  third degree as defined in section 490.37.
   16    [(c)] (D) Class D violent felony offenses: an attempt to commit any of
   17  the class C felonies set forth in paragraph [(b)] (C); reckless  assault
   18  of a child as defined in section 120.02, assault in the second degree as
   19  defined in section 120.05, menacing a police officer or peace officer as
   20  defined  in  section 120.18, stalking in the first degree, as defined in
   21  subdivision one of section 120.60, strangulation in the second degree as
   22  defined in section 121.12, rape in  the  second  degree  as  defined  in
   23  section  130.30,  criminal sexual act in the second degree as defined in
   24  section 130.45, sexual abuse in the first degree as defined  in  section
   25  130.65, course of sexual conduct against a child in the second degree as
   26  defined  in  section 130.80, aggravated sexual abuse in the third degree
   27  as defined  in  section  130.66,  facilitating  a  sex  offense  with  a
   28  controlled  substance  as defined in section 130.90, criminal possession
   29  of a weapon in the [third] FOURTH  degree  as  defined  in  [subdivision
   30  five,  six,  seven or eight of] section [265.02] 265.01 WHERE THE WEAPON
   31  IS A FIREARM, [criminal sale of a firearm in the third degree as defined
   32  in section 265.11,] AN ATTEMPT TO COMMIT ANY OF THE FELONIES OF CRIMINAL
   33  POSSESSION IN THE THIRD DEGREE AS  DEFINED  IN  SUBDIVISION  FIVE,  SIX,
   34  SEVEN  OR  EIGHT  OF SECTION 265.02 AS A LESSER INCLUDED OFFENSE OF THAT
   35  SECTION AS DEFINED IN SECTION 220.20  OF  THE  CRIMINAL  PROCEDURE  LAW,
   36  intimidating  a  victim  or  witness  in the second degree as defined in
   37  section 215.16, soliciting or providing support for an act of  terrorism
   38  in  the second degree as defined in section 490.10, and making a terror-
   39  istic threat as defined in section 490.20, falsely reporting an incident
   40  in the first degree as defined in section 240.60, placing a  false  bomb
   41  or hazardous substance in the first degree as defined in section 240.62,
   42  placing  a  false  bomb  or  hazardous  substance in a sports stadium or
   43  arena, mass transportation facility or enclosed shopping mall as defined
   44  in section 240.63, and aggravated unpermitted use of indoor pyrotechnics
   45  in the first degree as defined in section 405.18.
   46    [(d)] (E) Class E violent felony offenses: an attempt to commit any of
   47  the felonies of criminal possession of a weapon in  the  [third]  FOURTH
   48  degree  as defined in [subdivision five, six, seven or eight of] section
   49  [265.02] 265.01 WHERE THE WEAPON IS  A  FIREARM  as  a  lesser  included
   50  offense  of  that  section  as defined in section 220.20 of the criminal
   51  procedure law, persistent sexual abuse as  defined  in  section  130.53,
   52  aggravated  sexual  abuse  in  the  fourth  degree as defined in section
   53  130.65-a, falsely reporting an incident in the second degree as  defined
   54  in section 240.55 and placing a false bomb or hazardous substance in the
   55  second degree as defined in section 240.61.
       S. 2182                             6
    1    S  16.  Subdivision 3 of section 70.02 of the penal law, as amended by
    2  chapter 765 of the laws of 2005, is amended to read as follows:
    3    3.  Term of sentence. The term of a determinate sentence for a violent
    4  felony offense must be fixed by the court as follows:
    5    (a) FOR A CLASS A FELONY, THE TERM MUST BE AT LEAST TEN YEARS AND MUST
    6  NOT EXCEED TWENTY-FIVE YEARS;
    7    (B) For a class B felony, the term must be at  least  five  years  and
    8  must not exceed twenty-five years, provided, however, that the term must
    9  be:    (i) at least ten years and must not exceed thirty years where the
   10  sentence is for the crime of aggravated assault upon a police officer or
   11  peace officer as defined in section 120.11 of this chapter; and (ii)  at
   12  least  ten  years and must not exceed thirty years where the sentence is
   13  for the crime of aggravated manslaughter in the first degree as  defined
   14  in section 125.22 of this chapter;
   15    [(b)]  (C)  For  a class C felony, the term must be at least three and
   16  one-half years and must not exceed  fifteen  years,  provided,  however,
   17  that  the  term  must  be:  (i) at least seven years and must not exceed
   18  twenty  years  where  the  sentence  is  for  the  crime  of  aggravated
   19  manslaughter  in  the second degree as defined in section 125.21 of this
   20  chapter; (ii) at least seven years and  must  not  exceed  twenty  years
   21  where the sentence is for the crime of attempted aggravated assault upon
   22  a  police  officer or peace officer as defined in section 120.11 of this
   23  chapter; and (iii) at least three and one-half years and must not exceed
   24  twenty years where the sentence is for the crime of aggravated criminal-
   25  ly negligent homicide as defined in section 125.11 of this chapter;
   26    [(c)] (D) For a class D felony, the term must be at  least  two  years
   27  and  must  not exceed seven years, provided, however, that the term must
   28  be: (I) at least two years and must not exceed  eight  years  where  the
   29  sentence  is for the crime of menacing a police officer or peace officer
   30  as defined in section 120.18 of this chapter; AND  (II)  AT  LEAST  FIVE
   31  YEARS  AND  MUST  NOT  EXCEED  EIGHT YEARS WHERE THE SENTENCE IS FOR THE
   32  CRIME OF CRIMINAL POSSESSION OF A WEAPON IN THE FOURTH DEGREE AS DEFINED
   33  IN SECTION 265.01 OF THIS CHAPTER IF SUCH WEAPON IS A FIREARM; and
   34    [(d)] (E) For a class E felony, the term must  be  at  least  one  and
   35  one-half years and must not exceed four years.
   36    S  17.  Paragraph  (c)  of subdivision 2 of section 70.02 of the penal
   37  law, as amended by chapter 764 of the laws of 2005, is amended  to  read
   38  as follows:
   39    (c)  Except  as  provided  in  subdivision  six  of section 60.05, the
   40  sentence imposed upon a person who stands convicted of the class [D] (C)
   41  violent felony offenses of criminal possession of a weapon in the  third
   42  degree  as  defined in subdivision four, five, seven or eight of section
   43  265.02, criminal sale of a firearm in the third  degree  as  defined  in
   44  section  265.11  or  the  class E violent felonies of attempted criminal
   45  possession of a weapon in the third degree  as  defined  in  subdivision
   46  four,  five,  seven  or  eight of section 265.02 must be a sentence to a
   47  determinate period of imprisonment, or, in the alternative,  a  definite
   48  sentence  of  imprisonment for a period of no less than one year, except
   49  that:
   50    (i) the court may impose any other sentence authorized by law  upon  a
   51  person  who  has  not  been previously convicted in the five years imme-
   52  diately preceding the commission of the offense for a class A  misdemea-
   53  nor  defined  in  this chapter, if the court having regard to the nature
   54  and circumstances of the crime and to the history and character  of  the
   55  defendant,  finds on the record that such sentence would be unduly harsh
       S. 2182                             7
    1  and that the alternative sentence would be consistent with public safety
    2  and does not deprecate the seriousness of the crime; and
    3    (ii)  the  court may apply the provisions of paragraphs (b) and (c) of
    4  subdivision four of this section when imposing a sentence upon a  person
    5  who  has  previously  been convicted of a class A misdemeanor defined in
    6  this chapter in the five years immediately preceding the  commission  of
    7  the offense.
    8    S  18.  Paragraph  (a)  of subdivision 2 of section 70.02 of the penal
    9  law, as amended by chapter 764 of the laws of 2005, is amended  to  read
   10  as follows:
   11    (a)  Except  as  provided  in  subdivision  six  of section 60.05, the
   12  sentence imposed upon a person who stands convicted of a class A,  B  or
   13  class  C violent felony offense must be a determinate sentence of impri-
   14  sonment which shall be in whole or half years. The term of such sentence
   15  must be in accordance with the provisions of subdivision three  of  this
   16  section.
   17    S  19.  Paragraph  (a)  of subdivision 2 of section 70.02 of the penal
   18  law, as amended by chapter 233 of the laws of 1980, is amended  to  read
   19  as follows:
   20    (a) The sentence imposed upon a person who stands convicted of a class
   21  A, B or class C violent felony offense must be an indeterminate sentence
   22  of  imprisonment.  Except  as  provided  in  subdivision five of section
   23  60.05, the maximum term of such sentence must be in accordance with  the
   24  provisions  of  subdivision three of this section and the minimum period
   25  of imprisonment under such sentence must be in accordance with  subdivi-
   26  sion four of this section.
   27    S  20.  This  act  shall  take  effect  immediately and shall apply to
   28  offenses committed on and after such date; provided that the  amendments
   29  to paragraph (a) of subdivision 2 of section 70.02 of the penal law made
   30  by  section  eighteen of this act shall be subject to the expiration and
   31  reversion of such paragraph  when  upon  such  date  the  provisions  of
   32  section nineteen of this act shall take effect.