S T A T E   O F   N E W   Y O R K
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                                  10425

                          I N  A S S E M B L Y

                             March 25, 2010
                               ___________

Introduced by M. of A. McKEVITT -- read once and referred to the Commit-
  tee on Codes

AN  ACT  to amend the penal law, in relation to increasing penalties for
  criminal use of a firearm in the first degree when committing  a  drug
  related felony offense

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

  Section 1. Section 265.09 of the penal law, as amended by chapter  650
of the laws of 1996, is amended to read as follows:
S 265.09 Criminal use of a firearm in the first degree.
  (1)  A  person  is  guilty  of  criminal use of a firearm in the first
degree when he OR SHE commits any class  B  violent  felony  offense  as
defined  in paragraph (a) of subdivision one of section 70.02 OR COMMITS
ANY DRUG RELATED FELONY OFFENSE AS DEFINED IN SECTIONS  220.31,  220.34,
220.39,  220.41, 220.43, 220.44 AND 220.48 OF THIS CHAPTER and he OR SHE
either:
  (a) possesses a deadly weapon, if the weapon is a loaded  OR  UNLOADED
weapon  from  which  a shot, readily capable of producing death or other
serious injury may be discharged; or
  (b) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
machine gun or other firearm.
  Criminal use of a firearm in the first degree is a class B felony.
  (2)  Sentencing. (A) Notwithstanding any other provision of law to the
contrary, when a person is convicted of criminal use of a firearm in the
first degree as defined in subdivision one of this  section,  the  court
shall  impose  an additional consecutive sentence of [five] TEN years to
the minimum term of an indeterminate sentence imposed on the  underlying
class  B violent felony offense OR DRUG RELATED FELONY OFFENSE where the
person convicted of such crime displays a loaded OR UNLOADED weapon from
which a shot, readily capable of producing death or other serious injury
may be discharged OR DISPLAYS WHAT APPEARS TO  BE  A  PISTOL,  REVOLVER,
RIFLE,  SHOTGUN,  MACHINE  GUN  OR  OTHER FIREARM, in furtherance of the
commission of such  crime[,  provided,  however,  that  such  additional
sentence  shall not be imposed if the court, having regard to the nature

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD16389-01-0

A. 10425                            2

and circumstances of the crime and to the history and character  of  the
defendant, finds on the record that such additional consecutive sentence
would  be  unduly  harsh  and  that  not imposing such sentence would be
consistent  with  the public safety and would not deprecate the serious-
ness of the crime].  THE ADDITIONAL SENTENCE SHALL  BE  IMPOSED  BY  THE
COURT REGARDLESS OF THE NATURE AND CIRCUMSTANCES OF THE CRIME AND TO THE
HISTORY  AND  CHARACTER  OF  THE DEFENDANT. THE DISTRICT ATTORNEY OF ANY
JURISDICTION SHALL BE PROHIBITED FROM DISMISSING  THIS  OFFENSE  IN  THE
COURSE OF A PLEA BARGAIN.
  (B)  Notwithstanding  any  other provision of law to the contrary, the
aggregate of the [five] TEN year consecutive term  imposed  pursuant  to
this  subdivision  and  the  minimum  term of the indeterminate sentence
imposed on the underlying class B violent felony OR DRUG RELATED  FELONY
OFFENSE shall constitute the new aggregate minimum term of imprisonment,
and  a person subject to such term shall be required to serve the entire
aggregate minimum term and shall not be eligible for release  on  parole
or  conditional  release  during such term. This subdivision shall [not]
apply where the defendant's criminal liability for displaying  a  loaded
OR UNLOADED weapon from which a shot, readily capable of producing death
or  other  serious injury may be discharged, OR DISPLAYS WHAT APPEARS TO
BE A PISTOL, REVOLVER, RIFLE, SHOTGUN, MACHINE GUN OR OTHER FIREARM,  in
furtherance of the commission of crime is based on the conduct of anoth-
er pursuant to section 20.00 of [the penal law] THIS CHAPTER.
  S 2. This act shall take effect on the one hundred eightieth day after
it shall have become a law.