S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        3148--A
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   January 30, 2013
                                      ___________
       Introduced  by Sens. KRUEGER, AVELLA, GIANARIS -- read twice and ordered
         printed, and when printed to be committed to the Committee on Codes --
         committee discharged, bill amended, ordered reprinted as  amended  and
         recommitted to said committee
       AN  ACT  to amend the penal law, the general business law and the educa-
         tion law, in relation to criminally negligent storage of a weapon  and
         weapons safety programs for children
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Short title; construction. 1. This act shall be  known  and
    2  may be cited as the "children's weapon accident prevention act".
    3    2.  The  provisions  of  this act shall not be construed to preempt or
    4  supersede any local law the provisions of which are no less stringent or
    5  restrictive than the provisions of this act.
    6    S 2. Legislative findings and intent. The  legislature  finds  that  a
    7  tragically  large  number  of  children have been accidentally killed or
    8  seriously injured by negligently stored weapons;  that  placing  weapons
    9  within  reach  or  easy  access of children is irresponsible, encourages
   10  such accidents and should be prohibited; and that legislative action  is
   11  necessary to protect the safety of our children.
   12    S  3.  Section  265.00  of the penal law is amended by adding five new
   13  subdivisions 26, 27, 28, 29 and 30 to read as follows:
   14    26. "WEAPON" MEANS A "RIFLE", "SHOTGUN" OR "FIREARM".
   15    27. "LOCKED BOX" MEANS A SAFE, CASE OR CONTAINER WHICH,  WHEN  LOCKED,
   16  IS  INCAPABLE  OF  BEING  OPENED  WITHOUT  THE KEY, COMBINATION OR OTHER
   17  UNLOCKING MECHANISM, AND IS RESISTANT TO TAMPERING  BY  AN  UNAUTHORIZED
   18  PERSON  ATTEMPTING  TO  OBTAIN ACCESS TO AND POSSESSION OF THE WEAPON OR
   19  AMMUNITION CONTAINED THEREIN. THE DIVISION OF STATE POLICE SHALL DEVELOP
   20  AND PROMULGATE RULES AND REGULATIONS SETTING FORTH THE SPECIFIC  DEVICES
   21  OR  THE  MINIMUM  STANDARDS  AND  CRITERIA  THEREFOR WHICH CONSTITUTE AN
   22  EFFECTIVE LOCKED BOX.
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD01339-03-3
       S. 3148--A                          2
    1    28. "GUN LOCKING DEVICE" MEANS AN  INTEGRATED  DESIGN  FEATURE  OR  AN
    2  ATTACHABLE  ACCESSORY THAT IS RESISTANT TO TAMPERING AND IS EFFECTIVE IN
    3  PREVENTING THE DISCHARGE OF A WEAPON BY  A  PERSON  WHO  DOES  NOT  HAVE
    4  ACCESS  TO THE KEY, COMBINATION OR OTHER MECHANISM USED TO DISENGAGE THE
    5  DEVICE.
    6    29. "LOADED RIFLE" MEANS ANY RIFLE LOADED WITH AMMUNITION OR ANY RIFLE
    7  WHICH IS POSSESSED BY ONE WHO, AT THE SAME TIME, POSSESSES A QUANTITY OF
    8  AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH RIFLE.
    9    30.  "LOADED  SHOTGUN" MEANS ANY SHOTGUN LOADED WITH AMMUNITION OR ANY
   10  SHOTGUN WHICH IS POSSESSED BY ONE WHO, AT THE  SAME  TIME,  POSSESSES  A
   11  QUANTITY OF AMMUNITION WHICH MAY BE USED TO DISCHARGE SUCH SHOTGUN.
   12    S  4.  The  penal  law  is  amended by adding six new sections 265.50,
   13  265.55, 265.60, 265.65, 265.70 and 265.75 to read as follows:
   14  S 265.50 FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE.
   15    A PERSON IS GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN  THE  SECOND
   16  DEGREE  WHEN HE OR SHE STORES OR OTHERWISE LEAVES A WEAPON OUT OF HIS OR
   17  HER IMMEDIATE POSSESSION OR CONTROL WITHOUT HAVING FIRST SECURELY LOCKED
   18  SUCH WEAPON IN AN APPROPRIATE LOCKED BOX OR  RENDERED  IT  INCAPABLE  OF
   19  BEING FIRED BY THE USE OF A GUN LOCKING DEVICE APPROPRIATE TO THAT WEAP-
   20  ON.
   21    FAILURE TO STORE A WEAPON SAFELY IN THE SECOND DEGREE IS A VIOLATION.
   22  S 265.55 FAILURE TO STORE A WEAPON SAFELY IN THE FIRST DEGREE.
   23    A  PERSON  IS  GUILTY OF FAILURE TO STORE A WEAPON SAFELY IN THE FIRST
   24  DEGREE WHEN HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE  A  WEAPON
   25  SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.50 OF THIS ARTICLE
   26  AND  HAS  BEEN PREVIOUSLY CONVICTED OF THE OFFENSE OF FAILURE TO STORE A
   27  WEAPON SAFELY IN THE SECOND DEGREE AS DEFINED IN SECTION 265.50 OF  THIS
   28  ARTICLE WITHIN THE PRECEDING FIVE YEARS.
   29    FAILURE  TO  STORE  A  WEAPON  SAFELY IN THE FIRST DEGREE IS A CLASS B
   30  MISDEMEANOR.
   31  S 265.60 AGGRAVATED FAILURE TO STORE A WEAPON SAFELY.
   32    A PERSON IS GUILTY OF AGGRAVATED FAILURE TO STORE A WEAPON SAFELY WHEN
   33  HE OR SHE COMMITS THE OFFENSE OF FAILURE TO STORE A WEAPON SAFELY IN THE
   34  SECOND DEGREE AS DEFINED IN SECTION 265.50  OF  THIS  ARTICLE  AND  SUCH
   35  WEAPON  IS  REMOVED  FROM  THE  PREMISES OR DISCHARGED BY ANOTHER PERSON
   36  UNDER THE AGE OF EIGHTEEN.
   37    AGGRAVATED FAILURE TO STORE A WEAPON SAFELY IS A CLASS A MISDEMEANOR.
   38  S 265.65 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE SECOND DEGREE.
   39    1. A PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A  WEAPON  IN
   40  THE  SECOND  DEGREE  WHEN  WITH CRIMINAL NEGLIGENCE, HE OR SHE STORES OR
   41  LEAVES A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY  LOCATION
   42  WHERE  SUCH  WEAPON  IS ACCESSIBLE TO A PERSON UNDER THE AGE OF EIGHTEEN
   43  AND SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF  EIGHTEEN,
   44  WHICH  CAUSES  SERIOUS  PHYSICAL  INJURY TO SUCH PERSON UNDER THE AGE OF
   45  EIGHTEEN OR ANY OTHER PERSON.
   46    2. IN ANY PROSECUTION UNDER THIS SECTION IT SHALL  BE  AN  AFFIRMATIVE
   47  DEFENSE  THAT  THE  DEFENDANT ACTIVELY PURSUED ALL REASONABLE EFFORTS TO
   48  RETRIEVE OR OTHERWISE REGAIN POSSESSION OF  SUCH  WEAPON  PRIOR  TO  ITS
   49  DISCHARGE.
   50    3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
   51    (A)  SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH WEAPON
   52  AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
   53    (B) SUCH WEAPON IS STORED IN A  SECURELY  LOCKED  BOX  WHICH  PREVENTS
   54  ACCESS  TO  THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED TO DISCHARGE
   55  SUCH WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH  PREVENTS
   56  ACCESS TO SUCH AMMUNITION;
       S. 3148--A                          3
    1    (C)  SUCH  WEAPON  IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS
    2  THE WEAPON FROM DISCHARGING;
    3    (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
    4  OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
    5  ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
    6    (E)  SUCH  WEAPON  IS IN THE POSSESSION OR CONTROL OF A POLICE OFFICER
    7  WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
    8    (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
    9    CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE  SECOND  DEGREE  IS  A
   10  CLASS E FELONY.
   11  S 265.70 CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN THE FIRST DEGREE.
   12    1.  A  PERSON IS GUILTY OF CRIMINALLY NEGLIGENT STORAGE OF A WEAPON IN
   13  THE FIRST DEGREE WHEN WITH CRIMINAL NEGLIGENCE,  HE  OR  SHE  STORES  OR
   14  LEAVES  A LOADED RIFLE, LOADED SHOTGUN OR LOADED FIREARM IN ANY LOCATION
   15  WHERE SUCH WEAPON IS ACCESSIBLE TO A PERSON UNDER THE  AGE  OF  EIGHTEEN
   16  AND  SUCH WEAPON IS DISCHARGED BY SUCH PERSON UNDER THE AGE OF EIGHTEEN,
   17  WHICH CAUSES THE DEATH OF SUCH PERSON UNDER THE AGE OF EIGHTEEN  OR  ANY
   18  OTHER PERSON.
   19    2.  IN  ANY  PROSECUTION UNDER THIS SECTION IT SHALL BE AN AFFIRMATIVE
   20  DEFENSE THAT THE DEFENDANT ACTIVELY PURSUED ALL  REASONABLE  EFFORTS  TO
   21  RETRIEVE  OR  OTHERWISE  REGAIN  POSSESSION  OF SUCH WEAPON PRIOR TO ITS
   22  DISCHARGE.
   23    3. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY IF:
   24    (A) SUCH PERSON UNDER THE AGE OF EIGHTEEN GAINS ACCESS TO SUCH  WEAPON
   25  AS A RESULT OF AN UNLAWFUL ENTRY TO ANY PREMISES BY ANY PERSON;
   26    (B)  SUCH  WEAPON  IS  STORED  IN A SECURELY LOCKED BOX WHICH PREVENTS
   27  ACCESS TO THE WEAPON AND ANY AMMUNITION WHICH MAY BE USED  TO  DISCHARGE
   28  SUCH  WEAPON IS STORED IN A SEPARATE, SECURELY LOCKED BOX WHICH PREVENTS
   29  ACCESS TO THE WEAPON;
   30    (C) THE WEAPON IS SECURED WITH A GUN LOCKING DEVICE WHICH PREVENTS THE
   31  WEAPON FROM DISCHARGING;
   32    (D) SUCH PERSON UNDER THE AGE OF EIGHTEEN POSSESSED THE LOADED SHOTGUN
   33  OR LOADED RIFLE IN COMPLIANCE WITH A VALID HUNTING LICENSE ISSUED PURSU-
   34  ANT TO ARTICLE ELEVEN OF THE ENVIRONMENTAL CONSERVATION LAW;
   35    (E) SUCH WEAPON IS IN THE POSSESSION OR CONTROL OF  A  POLICE  OFFICER
   36  WHILE THE OFFICER IS ENGAGED IN OFFICIAL DUTIES; OR
   37    (F) SUCH WEAPON IS NEEDED FOR THE LAWFUL PURPOSE OF SELF DEFENSE.
   38    CRIMINALLY  NEGLIGENT  STORAGE  OF  A  WEAPON IN THE FIRST DEGREE IS A
   39  CLASS D FELONY.
   40  S 265.75 CRIMINALLY NEGLIGENT STORAGE OF  A  WEAPON  IN  THE  FIRST  AND
   41               SECOND DEGREE; APPLICATION.
   42    IF  A PERSON WHO IS SUSPECTED OF VIOLATING SECTION 265.65 OR 265.70 OF
   43  THIS ARTICLE IS THE PARENT OR GUARDIAN OF A CHILD WHO IS INJURED OR  WHO
   44  DIES  AS  THE  RESULT  OF  SUCH  VIOLATION,  THE DISTRICT ATTORNEY SHALL
   45  CONSIDER, AMONG OTHER FACTORS, THE IMPACT OF THE INJURY OR DEATH ON  THE
   46  PERSON  WHO  IS  SUSPECTED OF VIOLATING SECTION 265.65 OR 265.70 OF THIS
   47  ARTICLE WHEN DECIDING WHETHER OR NOT TO PROSECUTE SUCH PERSON  FOR  SUCH
   48  OFFENSE.
   49    S  5.  The  section heading and subdivision 2 of section 396-ee of the
   50  general business law, as added by chapter 189 of the laws of  2000,  are
   51  amended to read as follows:
   52    Sale of certain weapons; locking devices AND LOCKED BOXES therefor.
   53    (2)  Every  person, firm or corporation engaged in the retail business
   54  of selling rifles, shotguns or firearms, as such terms  are  defined  in
   55  section  265.00 of the penal law, shall, in the place where such rifles,
   56  shotguns or firearms are displayed or transferred to the purchaser, post
       S. 3148--A                          4
    1  a notice conspicuously stating in bold print that:   "The use of  a  GUN
    2  locking  device  or  [safety  lock]  A  LOCKED BOX is only one aspect of
    3  responsible firearm storage.  For increased safety  firearms  should  be
    4  stored  unloaded  and  locked  in  a location that is both separate from
    5  their ammunition and inaccessible to children and any other unauthorized
    6  person. LEAVING RIFLES, SHOTGUNS AND FIREARMS  ACCESSIBLE  TO  A  PERSON
    7  UNDER EIGHTEEN IS A CRIME IN NEW YORK STATE."
    8    S  6.  Section  305  of  the  education law is amended by adding a new
    9  subdivision 43 to read as follows:
   10    43. THE COMMISSIONER SHALL IN COOPERATION WITH THE DIVISION OF  CRIMI-
   11  NAL  JUSTICE  SERVICES  DEVELOP  A  WEAPONS  SAFETY  PROGRAM DESIGNED TO
   12  PROTECT CHILDREN FROM THE RISK OF GUN-RELATED  DEATH  AND  INJURY.  SUCH
   13  PROGRAM SHALL BE DESIGNED TO TEACH CHILDREN TO FOLLOW AN EFFECTIVE SAFE-
   14  TY  PROCEDURE  WHEN  THEY  ARE EXPOSED TO A GUN, SHALL SPECIFICALLY WARN
   15  CHILDREN THAT CONTACT WITH GUNS CAN RESULT IN SERIOUS  INJURY  OR  DEATH
   16  AND  SHALL  HAVE  BEEN  PROVEN TO BE EFFECTIVE TO PREVENT INJURY THROUGH
   17  FORMAL EVALUATION BY  OBJECTIVE  PUBLIC  HEALTH  AND  EDUCATION  PROFES-
   18  SIONALS. SUCH PROGRAM MAY BE USED IN PUBLIC AND NONPUBLIC SCHOOLS AT THE
   19  DISCRETION  OF THE LOCAL SCHOOL BOARD OF EDUCATION OR BOARD OF TRUSTEES,
   20  WHICHEVER IS APPLICABLE. THE COMMISSIONER  SHALL  SUBMIT  AN  EVALUATION
   21  REPORT ON THIS PROGRAM TO THE GOVERNOR, THE SPEAKER OF THE ASSEMBLY, THE
   22  TEMPORARY  PRESIDENT  OF  THE  SENATE,  THE  CHAIR OF THE ASSEMBLY CODES
   23  COMMITTEE AND THE CHAIR OF THE SENATE  CODES  COMMITTEE  NO  LATER  THAN
   24  JANUARY FIRST, TWO THOUSAND SIXTEEN.
   25    S  7. Severability.  If any word, phrase, clause, sentence, paragraph,
   26  section, or part of this act shall be adjudged by any court of competent
   27  jurisdiction to be invalid, such judgment shall not affect,  impair,  or
   28  invalidate the remainder thereof, but shall be confined in its operation
   29  to  the  words,  phrase,  clause,  sentence, paragraph, section, or part
   30  thereof directly involved in the  controversy  in  which  such  judgment
   31  shall have been rendered.
   32    S 8. This act shall take effect on the first of November next succeed-
   33  ing  the  date  on  which it shall have become a law, provided, however,
   34  that sections three and four of this act shall take effect May 1,  2015;
   35  provided, further, that section five of this act shall take effect March
   36  1,  2015  except  that  any  rule or regulation necessary for the timely
   37  implementation of section five of this act  may  be  promulgated  on  or
   38  before such date.