S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        4161--A
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                    March 12, 2013
                                      ___________
       Introduced  by  Sen.  LANZA  -- 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, the general business law and the vehicle
         and traffic law, in relation to criminal use  of  a  firearm;  and  to
         repeal sections 265.08 and 265.09 of the penal law relating thereto
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Paragraphs (a) and (b) of subdivision 1 of section 70.02 of
    2  the penal law, paragraph (a) as amended by chapter 320 of  the  laws  of
    3  2006  and paragraph (b) as amended by chapter 1 of the laws of 2013, are
    4  amended to read as follows:
    5    (a) Class B violent felony offenses: an attempt to  commit  the  class
    6  A-I  felonies  of  murder  in  the  second  degree as defined in section
    7  125.25, kidnapping in the first degree as defined in section 135.25, and
    8  arson in the first degree as defined in section 150.20; manslaughter  in
    9  the  first  degree as defined in section 125.20, aggravated manslaughter
   10  in the first degree as defined in section  125.22,  rape  in  the  first
   11  degree  as  defined  in section 130.35, criminal sexual act in the first
   12  degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
   13  first  degree  as  defined  in  section 130.70, course of sexual conduct
   14  against a child in the  first  degree  as  defined  in  section  130.75;
   15  assault  in the first degree as defined in section 120.10, kidnapping in
   16  the second degree as defined in section 135.20, burglary  in  the  first
   17  degree  as  defined  in  section  140.30,  arson in the second degree as
   18  defined in section 150.15, robbery in the first  degree  as  defined  in
   19  section 160.15, incest in the first degree as defined in section 255.27,
   20  criminal  possession  of  a  weapon  in  the  first degree as defined in
   21  section 265.04, [criminal use of  a  firearm  in  the  first  degree  as
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD05521-03-4
       S. 4161--A                          2
    1  defined  in  section  265.09,]  criminal  sale of a firearm in the first
    2  degree as defined in section 265.13, aggravated assault  upon  a  police
    3  officer or a peace officer as defined in section 120.11, gang assault in
    4  the  first degree as defined in section 120.07, intimidating a victim or
    5  witness in the first degree as  defined  in  section  215.17,  hindering
    6  prosecution  of  terrorism  in  the  first  degree as defined in section
    7  490.35, criminal possession of a chemical weapon or biological weapon in
    8  the second degree as defined in section 490.40, and criminal  use  of  a
    9  chemical  weapon  or biological weapon in the third degree as defined in
   10  section 490.47.
   11    (b) Class C violent felony offenses: an attempt to commit any  of  the
   12  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
   13  vated criminally negligent homicide as defined in section 125.11, aggra-
   14  vated manslaughter in the second degree as defined  in  section  125.21,
   15  aggravated  sexual  abuse  in  the  second  degree as defined in section
   16  130.67, assault on a peace officer, police officer, fireman or emergency
   17  medical services professional as defined in section 120.08, assault on a
   18  judge as defined in section 120.09, gang assault in the second degree as
   19  defined in section 120.06, strangulation in the first degree as  defined
   20  in  section  121.13, burglary in the second degree as defined in section
   21  140.25, robbery in the second degree as defined in section 160.10, crim-
   22  inal possession of a weapon in the second degree as defined  in  section
   23  265.03,  [criminal  use  of a firearm in the second degree as defined in
   24  section 265.08,] criminal sale of a firearm  in  the  second  degree  as
   25  defined  in section 265.12, criminal sale of a firearm with the aid of a
   26  minor as defined in section 265.14, aggravated criminal possession of  a
   27  weapon as defined in section 265.19, soliciting or providing support for
   28  an  act  of  terrorism in the first degree as defined in section 490.15,
   29  hindering prosecution of terrorism in the second degree  as  defined  in
   30  section  490.30, and criminal possession of a chemical weapon or biolog-
   31  ical weapon in the third degree as defined in section 490.37.
   32    S 2. Sections 265.08 and 265.09 of the penal law are  REPEALED  and  a
   33  new section 265.50 is added to read as follows:
   34  S 265.50 CRIMINAL USE OF A FIREARM.
   35    A PERSON IS GUILTY OF CRIMINAL USE OF A FIREARM WHEN HE OR SHE COMMITS
   36  A  CLASS A FELONY OR A VIOLENT FELONY OFFENSE, AS DEFINED IN SUBDIVISION
   37  ONE OF SECTION 70.02 OF THIS CHAPTER AND HE OR SHE EITHER:
   38    1. POSSESSES A DEADLY WEAPON, IF SUCH WEAPON IS A LOADED  WEAPON  FROM
   39  WHICH  A  SHOT,  READILY  CAPABLE OF PRODUCING DEATH OR SERIOUS PHYSICAL
   40  INJURY MAY BE DISCHARGED; OR
   41    2. DISPLAYS WHAT APPEARS TO BE OR IS A PISTOL, REVOLVER, RIFLE,  SHOT-
   42  GUN, MACHINE GUN OR OTHER FIREARM.
   43    CRIMINAL USE OF A FIREARM IS A CLASS A-I FELONY.
   44    S  3. Paragraph f of subdivision 1 of section 410 of the general busi-
   45  ness law, as added by chapter 509 of the laws of  1992,  is  amended  to
   46  read as follows:
   47    f.  Conviction  of any of the following crimes subsequent to the issu-
   48  ance of a license pursuant to this article:  fraud pursuant to  sections
   49  170.10,  170.15,  176.15,  176.20, 176.25, 176.30 and 190.65; falsifying
   50  business records pursuant to section 175.10; grand larceny  pursuant  to
   51  article  155;  bribery  pursuant  to  sections  180.03,  180.08, 180.15,
   52  180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45,  200.50;
   53  perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
   54  sections  120.05,  120.10,  120.11,  120.12; robbery pursuant to article
   55  160; homicide pursuant  to  sections  125.25  and  125.27;  manslaughter
   56  pursuant  to  sections 125.15 and 125.20; kidnapping and unlawful impri-
       S. 4161--A                          3
    1  sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
    2  possession pursuant to sections 265.02, 265.03 and 265.04; criminal  use
    3  of  a  weapon pursuant to FORMER sections 265.08 and 265.09, AND SECTION
    4  265.50;  criminal  sale  of  a  weapon  pursuant  to sections 265.11 and
    5  265.12; and sex offenses pursuant to  article  130  of  the  penal  law.
    6  Provided,  however,  that  for the purposes of this article, none of the
    7  following shall be considered criminal convictions or reported as  such:
    8  (i)  a conviction for which an executive pardon has been issued pursuant
    9  to the executive law; (ii) a  conviction  which  has  been  vacated  and
   10  replaced  by  a  youthful  offender  finding  pursuant  to article seven
   11  hundred  twenty  of  the  criminal  procedure  law,  or  the  applicable
   12  provisions  of  law of any other jurisdiction; or (iii) a conviction the
   13  records of which have been expunged or sealed pursuant to the applicable
   14  provisions of the laws of this state or of any other  jurisdiction;  and
   15  (iv)  a conviction for which other evidence of successful rehabilitation
   16  to remove the disability has been issued.
   17    S 4. Paragraph (a) of subdivision 4 of section 509-cc of  the  vehicle
   18  and  traffic  law,  as  amended  by  chapter 400 of the laws of 2011, is
   19  amended to read as follows:
   20    (a) The offenses referred to in subparagraph (ii) of paragraph (a)  of
   21  subdivision  one  and  paragraph  (a) of subdivision two of this section
   22  that result in permanent disqualification  shall  include  a  conviction
   23  under  sections  125.12, 125.13, 125.14, 125.15, 125.20, 125.21, 125.22,
   24  125.25, 125.26, 125.27, 130.30, 130.35, 130.45, 130.50, 130.65,  130.66,
   25  130.67,  130.70, 130.75, 130.80, 130.90, 130.95, 130.96, 135.25, 150.20,
   26  230.30, 230.32, 230.34, 235.22, 263.05, 263.10, 263.11,  263.15,  263.16
   27  AND 265.50 of the penal law or an attempt to commit any of the aforesaid
   28  offenses  under section 110.00 of the penal law, or any offenses commit-
   29  ted under a former section of  the  penal  law  which  would  constitute
   30  violations  of  the aforesaid sections of the penal law, or any offenses
   31  committed outside this state which would constitute  violations  of  the
   32  aforesaid sections of the penal law.
   33    S 5. This act shall take effect on the first of November next succeed-
   34  ing  the  date  on  which  it shall have become a law, provided that the
   35  provisions of sections one and two of  this  act  shall  only  apply  to
   36  offenses committed on or after such effective date.