S50001
December 17, 2005

Extraordinary Session

I N S E N A T E

December 17, 2005
___________

Introduced by Sens. GOLDEN, BRUNO, PADAVAN, VOLKER, MALTESE, ALESI,
BALBONI, BONACIC, DeFRANCISCO, FARLEY, FLANAGAN, FUSCHILLO, HANNON,
JOHNSON, LARKIN, LAVALLE, LEIBELL, LIBOUS, LITTLE, MARCELLINO, MARCHI,
MAZIARZ, MEIER, MORAHAN, NOZZOLIO, RATH, ROBACH, SALAND, SEWARD,
SKELOS, SPANO, TRUNZO, WINNER, WRIGHT, YOUNG -- (at request of the
Governor) -- read twice and ordered printed, and when printed to be
committed to the Committee on Rules

AN ACT to amend the penal law, in relation to the possession and sale of
firearms

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

1 Section 1. Subdivisions 1 and 2 of section 70.02 of the penal law, as
2 amended by chapter 233 of the laws of 1980, paragraphs (a) and (b) of
3 subdivision 1 as amended by section 6 of part A of chapter 1 of the laws
4 of 2004, paragraph (c) of subdivision 1 as amended by chapter 584 of the
5 laws of 2003, paragraph (d) of subdivision 1 as amended by chapter 301
6 of the laws of 2001, paragraphs (a) and (c) of subdivision 2 as amended
7 by chapter 1 of the laws of 1998 and paragraph (b) and the opening para-
8 graph of paragraph (c) of subdivision 2 as amended by chapter 189 of the
9 laws of 2000, are amended to read as follows:
10 1. Definition of a violent felony offense. A violent felony offense is
11 a class B violent felony offense, a class C violent felony offense, a
12 class D violent felony offense, or a class E violent felony offense,
13 defined as follows:
14 (a) Class B violent felony offenses: an attempt to commit the class
15 A-I felonies of murder in the second degree as defined in section
16 125.25, kidnapping in the first degree as defined in section 135.25, and
17 arson in the first degree as defined in section 150.20; manslaughter in
18 the first degree as defined in section 125.20, rape in the first degree
19 as defined in section 130.35, criminal sexual act in the first degree as
20 defined in section 130.50, aggravated sexual abuse in the first degree

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
{ } is old law to be omitted.
LBD12025-02-5

S. 1 2

1 as defined in section 130.70, course of sexual conduct against a child
2 in the first degree as defined in section 130.75; assault in the first
3 degree as defined in section 120.10, kidnapping in the second degree as
4 defined in section 135.20, burglary in the first degree as defined in
5 section 140.30, arson in the second degree as defined in section 150.15,
6 robbery in the first degree as defined in section 160.15, criminal
7 possession of a {dangerous} weapon in the first degree as defined in
8 section 265.04, criminal use of a firearm in the first degree as defined
9 in section 265.09, criminal sale of a firearm in the first degree as
10 defined in section 265.13, aggravated assault upon a police officer or a
11 peace officer as defined in section 120.11, gang assault in the first
12 degree as defined in section 120.07, intimidating a victim or witness in
13 the first degree as defined in section 215.17, hindering prosecution of
14 terrorism in the first degree as defined in section 490.35, criminal
15 possession of a chemical weapon or biological weapon in the second
16 degree as defined in section 490.40, and criminal use of a chemical
17 weapon or biological weapon in the third degree as defined in section
18 490.47.
19 (b) Class C violent felony offenses: an attempt to commit any of the
20 class B felonies set forth in paragraph (a); aggravated sexual abuse in
21 the second degree as defined in section 130.67, assault on a peace offi-
22 cer, police officer, fireman or emergency medical services professional
23 as defined in section 120.08, gang assault in the second degree as
24 defined in section 120.06, burglary in the second degree as defined in
25 section 140.25, robbery in the second degree as defined in section
26 160.10, criminal possession of a weapon in the second degree as defined
27 in section 265.03, criminal use of a firearm in the second degree as
28 defined in section 265.08, criminal sale of a firearm in the second
29 degree as defined in section 265.12, criminal sale of a firearm with the
30 aid of a minor as defined in section 265.14, soliciting or providing
31 support for an act of terrorism in the first degree as defined in
32 section 490.15, hindering prosecution of terrorism in the second degree
33 as defined in section 490.30, and criminal possession of a chemical
34 weapon or biological weapon in the third degree as defined in section
35 490.37.
36 (c) Class D violent felony offenses: an attempt to commit any of the
37 class C felonies set forth in paragraph (b); assault in the second
38 degree as defined in section 120.05, stalking in the first degree, as
39 defined in subdivision one of section 120.60, sexual abuse in the first
40 degree as defined in section 130.65, course of sexual conduct against a
41 child in the second degree as defined in section 130.80, aggravated
42 sexual abuse in the third degree as defined in section 130.66, criminal
43 possession of a weapon in the third degree as defined in subdivision
44 four, five, six, seven or eight of section 265.02, CRIMINAL SALE OF A
45 FIREARM IN THE THIRD DEGREE AS DEFINED IN SECTION 265.11, intimidating a
46 victim or witness in the second degree as defined in section 215.16,
47 soliciting or providing support for an act of terrorism in the second
48 degree as defined in section 490.10, and making a terroristic threat as
49 defined in section 490.20, falsely reporting an incident in the first
50 degree as defined in section 240.60, placing a false bomb OR HAZARDOUS
51 SUBSTANCE in the first degree as defined in section 240.62, placing a
52 false bomb OR HAZARDOUS SUBSTANCE in a sports stadium or arena, mass
53 transportation facility{,} OR enclosed shopping mall as defined in
54 section 240.63, and aggravated unpermitted use of indoor pyrotechnics in
55 the first degree as defined in section 405.18.

S. 1 3

1 (d) Class E violent felony offenses: an attempt to commit any of the
2 felonies of criminal possession of a weapon in the third degree as
3 defined in subdivision four, five, six, seven or eight of section 265.02
4 as a lesser included offense of that section as defined in section
5 220.20 of the criminal procedure law, falsely reporting an incident in
6 the second degree as defined in section 240.55 and placing a false bomb
7 OR HAZARDOUS SUBSTANCE in the second degree as defined in section
8 240.61.
9 2. Authorized sentence.
10 (a) Except as provided in subdivision six of section 60.05, the
11 sentence imposed upon a person who stands convicted of a class B or
12 class C violent felony offense must be a determinate sentence of impri-
13 sonment which shall be in whole or half years. The term of such sentence
14 must be in accordance with the provisions of subdivision three of this
15 section.
16 (b) Except as provided in subdivision six of section 60.05 and subdi-
17 vision four of this section, the sentence imposed upon a person who
18 stands convicted of a class D violent felony offense, other than the
19 offense of criminal possession of a weapon in the third degree as
20 defined in subdivision four, five, seven or eight of section 265.02 OR
21 CRIMINAL SALE OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN SECTION
22 265.11, must be in accordance with the applicable provisions of this
23 chapter relating to sentencing for class D felonies provided, however,
24 that where a sentence of imprisonment is imposed which requires a
25 commitment to the state department of correctional services, such
26 sentence shall be a determinate sentence in accordance with paragraph
27 (c) of subdivision three of this section.
28 (c) Except as provided in subdivision six of section 60.05, the
29 sentence imposed upon a person who stands convicted of the class D
30 violent felony offenses of criminal possession of a weapon in the third
31 degree as defined in subdivision four, five, seven or eight of section
32 265.02, CRIMINAL SALE OF A FIREARM IN THE THIRD DEGREE AS DEFINED IN
33 SECTION 265.11 or the class E violent felonies of attempted criminal
34 possession of a weapon in the third degree as defined in subdivision
35 four, five, seven or eight of section 265.02 must be a sentence to a
36 determinate period of imprisonment, or, in the alternative, a definite
37 sentence of imprisonment for a period of no less than one year, except
38 that:
39 (i) the court may impose any other sentence authorized by law upon a
40 person who has not been previously convicted in the five years imme-
41 diately preceding the commission of the offense for a class A misdemea-
42 nor defined in this chapter, if the court having regard to the nature
43 and circumstances of the crime and to the history and character of the
44 defendant, finds on the record that such sentence would be unduly harsh
45 and that the alternative sentence would be consistent with public safety
46 and does not deprecate the seriousness of the crime; and
47 (ii) the court may apply the provisions of paragraphs (b) and (c) of
48 subdivision four of this section when imposing a sentence upon a person
49 who has previously been convicted of a class A misdemeanor defined in
50 this chapter in the five years immediately preceding the commission of
51 the offense.
52 S 2. Section 265.02 of the penal law, as added by chapter 1041 of the
53 laws of 1974, subdivision 3 as amended by chapter 695 of the laws of
54 1987, and subdivisions 4, 5 and 6 as amended and subdivisions 7 and 8 as
55 added by chapter 189 of the laws of 2000, is amended to read as follows:
56 S 265.02 Criminal possession of a weapon in the third degree.

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1 A person is guilty of criminal possession of a weapon in the third
2 degree when:
3 (1) {He} SUCH PERSON commits the crime of criminal possession of a
4 weapon in the fourth degree as defined in subdivision one, two, three or
5 five of section 265.01, and has been previously convicted of any crime;
6 or
7 (2) {He} SUCH PERSON possesses any explosive or incendiary bomb, bomb-
8 shell, firearm silencer, machine-gun or any other firearm or weapon
9 simulating a machine-gun and which is adaptable for such use; or
10 (3) {He} SUCH PERSON knowingly {has in his possession} POSSESSES a
11 machine-gun, firearm, rifle or shotgun which has been defaced for the
12 purpose of concealment or prevention of the detection of a crime or
13 misrepresenting the identity of such machine-gun, firearm, rifle or
14 shotgun; or
15 (4) Such person possesses any loaded firearm. Such possession shall
16 not, except as provided in subdivision one or seven, constitute a
17 violation of this section if such possession takes place in such
18 person`s home or place of business; or
19 (5) (i) Such person possesses {twenty} THREE or more firearms; or (ii)
20 such person possesses a firearm and has been previously convicted of a
21 felony or a class A misdemeanor defined in this chapter within the five
22 years immediately preceding the commission of the offense and such
23 possession did not take place in the person`s home or place of business;
24 or
25 (6) Such person knowingly possesses any disguised gun; or
26 (7) Such person possesses an assault weapon; or
27 (8) Such person possesses a large capacity ammunition feeding device.
28 Criminal possession of a weapon in the third degree is a class D felo-
29 ny.
30 S 3. Section 265.03 of the penal law, as added by chapter 1041 of the
31 laws of 1974, the opening paragraph and subdivisions 1, 2 and 3 as
32 amended by chapter 378 of the laws of 1998, is amended to read as
33 follows:
34 S 265.03 Criminal possession of a weapon in the second degree.
35 A person is guilty of criminal possession of a weapon in the second
36 degree when{,}:
37 (1) with intent to use the same unlawfully against another, SUCH
38 PERSON:
39 {(1) He} (A) possesses a machine-gun; or
40 {(2) He} (B) possesses a loaded firearm; or
41 {(3) He} (C) possesses a disguised gun; OR
42 (2) SUCH PERSON POSSESSES FIVE OR MORE FIREARMS.
43 Criminal possession of a weapon in the second degree is a class C
44 felony.
45 S 4. Section 265.04 of the penal law, as added by chapter 1041 of the
46 laws of 1974, is amended to read as follows:
47 S 265.04 Criminal possession of a {dangerous} weapon in the first
48 degree.
49 A person is guilty of criminal possession of a {dangerous} weapon in
50 the first degree when {he} SUCH PERSON:
51 (1) possesses any explosive substance with intent to use the same
52 unlawfully against the person or property of another; OR
53 (2) POSSESSES TEN OR MORE FIREARMS.
54 Criminal possession of a weapon in the first degree is a class B felo-
55 ny.

S. 1 5

1 S 5. Section 265.11 of the penal law, as amended by chapter 310 of the
2 laws of 1995, subdivision 1 as amended by chapter 189 of the laws of
3 2000 and the closing paragraph as amended by chapter 654 of the laws of
4 1998, is amended to read as follows:
5 S 265.11 Criminal sale of a firearm in the third degree.
6 A person is guilty of criminal sale of a firearm in the third degree
7 when {he} SUCH PERSON is not authorized pursuant to law to possess a
8 firearm and {he} SUCH PERSON unlawfully either:
9 (1) sells, exchanges, gives or disposes of a firearm or large capacity
10 ammunition feeding device to another person; or
11 (2) possesses a firearm with the intent to sell it.
12 Criminal sale of a firearm in the third degree is a class D felony.
13 S 6. Section 265.12 of the penal law, as amended by chapter 496 of the
14 laws of 1991 and the closing paragraph as amended by chapter 654 of the
15 laws of 1998, is amended to read as follows:
16 S 265.12 Criminal sale of a firearm in the second degree.
17 A person is guilty of criminal sale of a firearm in the second degree
18 when {he} SUCH PERSON:
19 (1) unlawfully sells, exchanges, gives or disposes of to another {ten}
20 FIVE or more firearms; OR
21 (2) UNLAWFULLY SELLS, EXCHANGES, GIVES OR DISPOSES OF TO ANOTHER
22 PERSON OR PERSONS A TOTAL OF FIVE OR MORE FIREARMS IN A PERIOD OF NOT
23 MORE THAN ONE YEAR.
24 Criminal sale of a firearm in the second degree is a class C felony.
25 S 7. Section 265.13 of the penal law, as added by chapter 496 of the
26 laws of 1991 and the closing paragraph as amended by chapter 654 of the
27 laws of 1998, is amended to read as follows:
28 S 265.13 Criminal sale of a firearm in the first degree.
29 A person is guilty of {a} criminal sale of a firearm in the first
30 degree when {he} SUCH PERSON:
31 (1) unlawfully sells, exchanges, gives or disposes of to another
32 {twenty} TEN or more firearms; OR
33 (2) UNLAWFULLY SELLS, EXCHANGES, GIVES OR DISPOSES OF TO ANOTHER
34 PERSON OR PERSONS A TOTAL OF TEN OR MORE FIREARMS IN A PERIOD OF NOT
35 MORE THAN ONE YEAR.
36 Criminal sale of a firearm in the first degree is a class B felony.
37 S 8. This act shall take effect immediately; provided, however, that
38 the amendments to paragraph (a) of subdivision 2 of section 70.02 of the
39 penal law, made by section one of this act, shall be subject to the
40 expiration and reversion of such paragraph, as provided in subdivision d
41 of section 74 of chapter 3 of the laws of 1995, as amended.