S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                        5602--A
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                     May 24, 2013
                                      ___________
       Introduced  by  Sen.  ROBACH -- 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, in relation to community guns and the
         criminal sale of a firearm in the first and third degrees
         THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section  1. Section 115.00 of the penal law, as amended by chapter 422
    2  of the laws of 1978, is amended to read as follows:
    3  S 115.00 Criminal facilitation in the fourth degree.
    4    A person is guilty of  criminal  facilitation  in  the  fourth  degree
    5  when[,]:
    6    1. believing it probable that he OR SHE is rendering aid:
    7    [1.]  A.  to a person who intends to commit a crime, he OR SHE engages
    8  in conduct which provides such person with means or opportunity for  the
    9  commission  thereof and which in fact aids such person to commit a felo-
   10  ny; or
   11    [2.] B. to a person under sixteen years of age who intends  to  engage
   12  in  conduct  which would constitute a crime, he OR SHE, being over eigh-
   13  teen years of age, engages in conduct which provides  such  person  with
   14  means  or  opportunity for the commission thereof and which in fact aids
   15  such person to commit a crime; OR
   16    2. HE OR SHE BEING NOT AUTHORIZED PURSUANT TO NEW YORK  STATE  LAW  TO
   17  POSSESS  A  FIREARM  SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES OR
   18  DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY,
   19  AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON TO COMMIT A FELONY, INCLUD-
   20  ING, BUT NOT LIMITED TO, A FELONY  SET  FORTH  IN  ARTICLE  TWO  HUNDRED
   21  SIXTY-FIVE OF THIS PART; OR
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06323-03-4
       S. 5602--A                          2
    1    3.  HE  OR  SHE,  BEING  OVER EIGHTEEN YEARS OF AGE AND NOT AUTHORIZED
    2  PURSUANT TO NEW YORK STATE LAW  TO  POSSESS  A  FIREARM,  SHARES,  MAKES
    3  AVAILABLE,  SELLS,  EXCHANGES,  GIVES OR DISPOSES OF A COMMUNITY GUN, OR
    4  ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN  FACT
    5  AIDS  A  PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A CRIME, INCLUDING,
    6  BUT NOT LIMITED TO, A CRIME SET FORTH IN ARTICLE TWO HUNDRED  SIXTY-FIVE
    7  OF THIS PART.
    8    Criminal facilitation in the fourth degree is a class A misdemeanor.
    9    S  2.  Section 115.01 of the penal law, as added by chapter 422 of the
   10  laws of 1978, is amended to read as follows:
   11  S 115.01 Criminal facilitation in the third degree.
   12    A person IS guilty of criminal facilitation in the third degree, when:
   13    1. believing it probable that he OR SHE is rendering aid to  a  person
   14  under  sixteen  years of age who intends to engage in conduct that would
   15  constitute a felony, he OR  SHE,  being  over  eighteen  years  of  age,
   16  engages  in conduct which provides such person with means or opportunity
   17  for the commission thereof and which in fact aids such person to  commit
   18  a felony; OR
   19    2.  HE  OR  SHE,  BEING  OVER EIGHTEEN YEARS OF AGE AND NOT AUTHORIZED
   20  PURSUANT TO NEW YORK STATE LAW  TO  POSSESS  A  FIREARM,  SHARES,  MAKES
   21  AVAILABLE,  SELLS,  EXCHANGES,  GIVES OR DISPOSES OF A COMMUNITY GUN, OR
   22  ASSISTS ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN  FACT
   23  AIDS  A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A FELONY, INCLUDING,
   24  BUT NOT LIMITED TO, A FELONY SET FORTH IN ARTICLE TWO HUNDRED SIXTY-FIVE
   25  OF THIS PART.
   26    Criminal facilitation in the third degree is a class E felony.
   27    S 3. Section 115.05 of the penal law, as amended by chapter 422 of the
   28  laws of 1978, is amended to read as follows:
   29  S 115.05 Criminal facilitation in the second degree.
   30    A person is guilty of  criminal  facilitation  in  the  second  degree
   31  when[,]:
   32    1.  believing  it probable that he OR SHE is rendering aid to a person
   33  who intends to commit a class A felony, he OR  SHE  engages  in  conduct
   34  which  provides such person with means or opportunity for the commission
   35  thereof and which in fact aids  such  person  to  commit  such  class  A
   36  felony; OR
   37    2.  HE  OR  SHE BEING NOT AUTHORIZED PURSUANT TO NEW YORK STATE LAW TO
   38  POSSESS A FIREARM SHARES, MAKES AVAILABLE, SELLS,  EXCHANGES,  GIVES  OR
   39  DISPOSES OF A COMMUNITY GUN, OR ASSISTS ANY PERSON IN ANY SUCH ACTIVITY,
   40  AND SUCH COMMUNITY GUN IN FACT AIDS A PERSON TO COMMIT A CLASS A FELONY.
   41    Criminal facilitation in the second degree is a class C felony.
   42    S  4.  Section 115.08 of the penal law, as added by chapter 422 of the
   43  laws of 1978, is amended to read as follows:
   44  S 115.08 Criminal facilitation in the first degree.
   45    A person is guilty  of  criminal  facilitation  in  the  first  degree
   46  when[,]:
   47    1.  believing  it probable that he OR SHE is rendering aid to a person
   48  under sixteen years of age who intends to engage in conduct  that  would
   49  constitute  a  class  A  felony, he OR SHE, being over eighteen years of
   50  age, engages in conduct which provides such person with means or  oppor-
   51  tunity  for the commission thereof and which in fact aids such person to
   52  commit such a class A felony; OR
   53    2. HE OR SHE, BEING OVER EIGHTEEN YEARS  OF  AGE  AND  NOT  AUTHORIZED
   54  PURSUANT  TO  NEW  YORK  STATE  LAW  TO POSSESS A FIREARM, SHARES, MAKES
   55  AVAILABLE, SELLS, EXCHANGES, GIVES OR DISPOSES OF A  COMMUNITY  GUN,  OR
       S. 5602--A                          3
    1  ASSISTS  ANY PERSON IN ANY SUCH ACTIVITY, AND SUCH COMMUNITY GUN IN FACT
    2  AIDS A PERSON UNDER SIXTEEN YEARS OF AGE TO COMMIT A CLASS A FELONY.
    3    Criminal facilitation in the first degree is a class B felony.
    4    S 5. Section 115.15 of the penal law is amended to read as follows:
    5  S 115.15 Criminal facilitation; corroboration.
    6    A  person  shall  not  be  convicted of criminal facilitation upon the
    7  testimony of a person who has committed the felony charged to have  been
    8  facilitated unless such testimony be corroborated by such other evidence
    9  as  tends to connect the defendant with such facilitation; PROVIDED THAT
   10  THIS SECTION SHALL NOT APPLY TO A CONVICTION  OF  CRIMINAL  FACILITATION
   11  FOR  SHARING, MAKING AVAILABLE, SELLING, EXCHANGING, GIVING OR DISPOSING
   12  OF A COMMUNITY GUN, OR ASSISTING ANY PERSON IN SUCH ACTIVITY.
   13    S 6. Section 115.20 of the penal law, as added by  chapter  1  of  the
   14  laws of 2013, is amended to read as follows:
   15  S 115.20 Criminal facilitation; definitions and construction.
   16    [For  purposes of this article, such conduct shall include, but not be
   17  limited to, making available, selling, exchanging, giving  or  disposing
   18  of  a  community  gun,  which  in fact, aids a person to commit a crime.
   19  "Community gun" shall mean a  firearm  that  is  actually  shared,  made
   20  available, sold, exchanged, given or disposed of among or between two or
   21  more  persons, at least one of whom is not authorized pursuant to law to
   22  possess such firearm. "Dispose of" shall have the same meaning  as  that
   23  term  is  defined  in  section 265.00 of this chapter. "Share" and "make
   24  available" shall, in the case of a  firearm,  be  construed  to  include
   25  knowingly placing such firearm at a location accessible and known to one
   26  or more other persons.]
   27    AS  USED IN THIS ARTICLE, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING
   28  MEANINGS:
   29    1. "COMMUNITY GUN" SHALL MEAN A FIREARM THAT IS  SHARED,  MADE  AVAIL-
   30  ABLE, SOLD, EXCHANGED, GIVEN OR DISPOSED OF AMONG OR BETWEEN TWO OR MORE
   31  PERSONS,  AT  LEAST  ONE  OF  WHOM  IS NOT AUTHORIZED PURSUANT TO LAW TO
   32  POSSESS A FIREARM.
   33    2. "DISPOSE OF" SHALL HAVE THE SAME MEANING  AS  PROVIDED  IN  SECTION
   34  265.00 OF THIS PART.
   35    3.  "SHARE"  AND  "MAKE AVAILABLE" SHALL, IN THE CASE OF A FIREARM, BE
   36  CONSTRUED TO INCLUDE, BUT SHALL NOT BE LIMITED TO, PLACING SUCH  FIREARM
   37  AT A LOCATION ACCESSIBLE AND KNOWN TO ONE OR MORE OTHER PERSONS.
   38    S 7. Section 265.00 of the penal law is amended by adding a new subdi-
   39  vision 26 to read as follows:
   40    26.  "COMMUNITY  GUN"  SHALL  HAVE THE DEFINITION SET FORTH IN SECTION
   41  115.20 OF THIS PART, AND THE TERMS "SHARE" AND "MAKE AVAILABLE" SHALL BE
   42  CONSTRUED AS SET FORTH IN SUCH SECTION.
   43    S 8. Section 265.11 of the penal law, as amended by chapter 764 of the
   44  laws of 2005, is amended to read as follows:
   45  S 265.11 Criminal sale of a firearm in the third degree.
   46    A person is guilty of criminal sale of a firearm in the  third  degree
   47  when  such person is not authorized pursuant to law to possess a firearm
   48  and such person unlawfully either:
   49    (1) sells, exchanges, gives or disposes of a firearm or large capacity
   50  ammunition feeding device to another person; [or]
   51    (2) possesses a firearm with the intent to sell it; OR
   52    (3) SHARE OR MAKES AVAILABLE A COMMUNITY GUN.
   53    Criminal sale of a firearm in the third degree is a class D felony.
   54    S 9. Section 265.13 of the penal law, as amended by chapter 764 of the
   55  laws of 2005, is amended to read as follows:
   56  S 265.13 Criminal sale of a firearm in the first degree.
       S. 5602--A                          4
    1    A person is guilty of criminal sale of a firearm in the  first  degree
    2  when such person:
    3    (1)  unlawfully  sells, exchanges, gives or disposes of to another ten
    4  or more firearms; [or]
    5    (2) unlawfully sells, exchanges,  gives  or  disposes  of  to  another
    6  person  or  persons  a  total of ten or more firearms in a period of not
    7  more than one year; OR
    8    (3) BEING NOT AUTHORIZED BY NEW YORK STATE LAW TO  POSSESS  A  FIREARM
    9  UNLAWFULLY SHARES, MAKES AVAILABLE, SELLS, EXCHANGES, GIVES, OR DISPOSES
   10  OF  A FIREARM TO ANOTHER PERSON, AND, WITHIN THREE YEARS THEREAFTER, THE
   11  FIREARM IS DISCHARGED AND CAUSES THE  DEATH  OF  ANOTHER  PERSON.    THE
   12  PROVISIONS  OF  THIS  SUBDIVISION SHALL ONLY APPLY WHEN SUCH FIREARM WAS
   13  DISCHARGED  INTENTIONALLY,  RECKLESSLY  OR  WITH  CRIMINAL   NEGLIGENCE,
   14  PROVIDED  THAT  THE  PROVISIONS OF THIS SUBDIVISION SHALL NOT APPLY WHEN
   15  SUCH FIREARM WAS DISCHARGED INTENTIONALLY  FOR  PURPOSES  OF  COMMITTING
   16  SUICIDE.  FOR  PURPOSES  OF  THIS  SUBDIVISION, THE TERM "FIREARM" SHALL
   17  INCLUDE BUT NOT BE LIMITED TO A COMMUNITY GUN.
   18    Criminal sale of a firearm in the first degree is a class B felony.
   19    S 10. This act shall take effect on  the  one  hundred  eightieth  day
   20  after it shall have become a law.