S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2237
                              2013-2014 Regular Sessions
                                   I N  S E N A T E
                                   January 15, 2013
                                      ___________
       Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
         printed to be committed to the Committee on Codes
       AN ACT to amend the penal law, the  vehicle  and  traffic  law  and  the
         general  business law, in relation to criminal use of a firearm in the
         first degree and to repeal certain provisions of the penal law  relat-
         ing thereto
         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, is amended to read as follows:
    3  S 265.09 Criminal use of a firearm in the first degree.
    4    (1)  A  person  is  guilty  of  criminal use of a firearm in the first
    5  degree when he OR SHE commits any [class B violent] felony  offense  [as
    6  defined  in  paragraph  (a)  of subdivision one of section 70.02] and he
    7  [either:
    8    (a) possesses a deadly weapon, if the weapon is a loaded  weapon  from
    9  which a shot, readily capable of producing death or other serious injury
   10  may be discharged; or
   11    (b)]  OR  SHE  displays  what appears to be a pistol, revolver, rifle,
   12  shotgun, machine gun or other firearm.
   13    Criminal use of a firearm in the first degree is a class B felony.
   14    (2) Sentencing. Notwithstanding any other  provision  of  law  to  the
   15  contrary, when a person is convicted of criminal use of a firearm in the
   16  first  degree  as  defined in subdivision one of this section, the court
   17  shall impose [an additional] A consecutive sentence of five years to the
   18  minimum term of [an indeterminate] THE sentence imposed on the  underly-
   19  ing  [class B violent] felony offense where the person convicted of such
   20  crime displays [a loaded weapon from which a shot,  readily  capable  of
   21  producing death or other serious injury may be discharged,] WHAT APPEARS
   22  TO  BE  A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM
   23  in furtherance of the commission of such crime, provided, however,  that
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD03184-01-3
       S. 2237                             2
    1  such  additional  sentence  shall  not  be  imposed if the court, having
    2  regard to the nature and circumstances of the crime and to  the  history
    3  and character of the defendant, finds on the record that such additional
    4  consecutive  sentence  would  be unduly harsh and that not imposing such
    5  sentence would be consistent with the public safety and would not depre-
    6  cate the seriousness of the crime.  Notwithstanding any other  provision
    7  of  law to the contrary, the aggregate of the five year consecutive term
    8  imposed pursuant to this subdivision and the minimum term of the  [inde-
    9  terminate]  sentence  imposed on the underlying [class B violent] felony
   10  shall constitute the new aggregate minimum term of imprisonment,  and  a
   11  person subject to such term shall be required to serve the entire aggre-
   12  gate  minimum  term  and  shall not be eligible for release on parole or
   13  conditional release during such term. This subdivision shall  not  apply
   14  where the defendant's criminal liability for displaying [a loaded weapon
   15  from  which  a shot, readily capable of producing death or other serious
   16  injury may be discharged,] WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,
   17  SHOTGUN, MACHINE GUN OR OTHER FIREARM in furtherance of  the  commission
   18  of crime is based on the conduct of another pursuant to section 20.00 of
   19  [the penal law] THIS CHAPTER.
   20    S 2. Section 265.08 of the penal law is REPEALED.
   21    S 3. Paragraph (b) of subdivision 1 of section 70.02 of the penal law,
   22  as  amended  by  chapter  148 of the laws of 2011, is amended to read as
   23  follows:
   24    (b) Class C violent felony offenses: an attempt to commit any  of  the
   25  class  B felonies set forth in paragraph (a) of this subdivision; aggra-
   26  vated criminally negligent homicide as defined in section 125.11, aggra-
   27  vated manslaughter in the second degree as defined  in  section  125.21,
   28  aggravated  sexual  abuse  in  the  second  degree as defined in section
   29  130.67, assault on a peace officer, police officer, fireman or emergency
   30  medical services professional as defined in section 120.08, assault on a
   31  judge as defined in section 120.09, gang assault in the second degree as
   32  defined in section 120.06, strangulation in the first degree as  defined
   33  in  section  121.13, burglary in the second degree as defined in section
   34  140.25, robbery in the second degree as defined in section 160.10, crim-
   35  inal 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 section 265.14, soliciting or providing support  for
   40  an  act  of  terrorism in the first degree as defined in section 490.15,
   41  hindering prosecution of terrorism in the second degree  as  defined  in
   42  section  490.30, and criminal possession of a chemical weapon or biolog-
   43  ical weapon in the third degree as defined in section 490.37.
   44    S 4. Paragraph (c) of subdivision 4 of section 509-cc of  the  vehicle
   45  and  traffic  law,  as  amended  by  chapter 400 of the laws of 2011, is
   46  amended to read as follows:
   47    (c) The offenses referred to in subparagraph (i) of paragraph  (b)  of
   48  subdivision one and subparagraph (i) of paragraph (c) of subdivision two
   49  of  this  section  that  result in disqualification for a period of five
   50  years shall include a conviction under sections 100.10, 105.13,  115.05,
   51  120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
   52  125.40, 125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55,  140.17,
   53  140.25,  140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06, 220.09,
   54  220.16, 220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55,  230.00,
   55  230.05,  230.06, 230.20, 235.05, 235.06, 235.07, 235.21, 240.06, 245.00,
   56  260.10, subdivision two of section 260.20 and sections  260.25,  265.02,
       S. 2237                             3
    1  265.03,  [265.08,] 265.09, 265.10, 265.12, 265.35 of the penal law or an
    2  attempt to commit any of the aforesaid offenses under section 110.00  of
    3  the  penal law, or any similar offenses committed under a former section
    4  of  the  penal  law, or any offenses committed under a former section of
    5  the penal  law  which  would  constitute  violations  of  the  aforesaid
    6  sections  of the penal law, or any offenses committed outside this state
    7  which would constitute violations of the aforesaid sections of the penal
    8  law.
    9    S 5. The opening paragraph  of  paragraph  (f)  of  subdivision  1  of
   10  section  410 of the general business law, as added by chapter 509 of the
   11  laws of 1992, is amended to read as follows:
   12    Conviction of any of the following crimes subsequent to  the  issuance
   13  of  a  license  pursuant  to  this article:   fraud pursuant to sections
   14  170.10, 170.15, 176.15, 176.20, 176.25, 176.30  and  190.65;  falsifying
   15  business  records  pursuant to section 175.10; grand larceny pursuant to
   16  article 155;  bribery  pursuant  to  sections  180.03,  180.08,  180.15,
   17  180.25,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.45, 200.50;
   18  perjury pursuant to sections 210.10, 210.15, 210.40; assault pursuant to
   19  sections 120.05, 120.10, 120.11, 120.12;  robbery  pursuant  to  article
   20  160;  homicide  pursuant  to  sections  125.25  and 125.27; manslaughter
   21  pursuant to sections 125.15 and 125.20; kidnapping and  unlawful  impri-
   22  sonment pursuant to sections 135.10, 135.20 and 135.25; unlawful weapons
   23  possession  pursuant to sections 265.02, 265.03 and 265.04; criminal use
   24  of a weapon pursuant to [sections 265.08 and] SECTION  265.09;  criminal
   25  sale  of  a  weapon  pursuant  to  sections  265.11  and 265.12; and sex
   26  offenses pursuant to article 130 of the penal  law.  Provided,  however,
   27  that  for  the  purposes of this article, none of the following shall be
   28  considered criminal convictions or reported as such:  (i)  a  conviction
   29  for  which an executive pardon has been issued pursuant to the executive
   30  law; (ii) a conviction which has been vacated and replaced by a youthful
   31  offender finding pursuant to article seven hundred twenty of the  crimi-
   32  nal  procedure  law,  or  the  applicable provisions of law of any other
   33  jurisdiction; or (iii) a conviction  the  records  of  which  have  been
   34  expunged  or sealed pursuant to the applicable provisions of the laws of
   35  this state or of any other jurisdiction; and (iv) a conviction for which
   36  other evidence of successful rehabilitation to remove the disability has
   37  been issued.
   38    S 6. This act shall take effect on the first of November next succeed-
   39  ing the date on which it shall have become a law.