S T A T E   O F   N E W   Y O R K
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                                  6495

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                              March 6, 2009
                               ___________

Introduced by M. of A. LAVINE -- read once and referred to the Committee
  on Codes

AN  ACT  to  amend  the  penal  law, in relation to the related use of a
  lethal or explosive device

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

  Section  1. The penal law is amended by adding a new section 265.07 to
read as follows:
S 265.07 RELATED USE OF LETHAL OR EXPLOSIVE DEVICE.
  1. A PERSON IS GUILTY OF RELATED USE OF A LETHAL OR  EXPLOSIVE  DEVICE
WHEN  HE  OR  SHE COMMITS ANY OFFENSE WHILE IN POSSESSION OF A LETHAL OR
EXPLOSIVE DEVICE.
  2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW  TO  THE  CONTRARY,  ANY
PERSON  CONVICTED  OF RELATED USE OF A LETHAL OR EXPLOSIVE DEVICE SHALL,
IN ADDITION TO THE PUNISHMENT PROVIDED FOR  THE  RELATED  OR  UNDERLYING
OFFENSE,  BE  SENTENCED  TO A DETERMINATE TERM OF IMPRISONMENT FOR SEVEN
YEARS, AND THE TERM OF IMPRISONMENT IMPOSED  PURSUANT  TO  THIS  SECTION
SHALL NOT RUN CONCURRENTLY WITH ANY OTHER TERM OF IMPRISONMENT INCLUDING
THAT IMPOSED FOR THE RELATED OR UNDERLYING CRIME.
  3.  ANY  SUCH  NON-CONCURRENT  TERM REQUIRED TO BE IMPOSED PURSUANT TO
THIS SECTION SHALL, HOWEVER, NOT BE IMPOSED IF:
  (A) THE DEFENDANT, WITHIN SIXTY DAYS OF THE DATE OF ARRAIGNMENT ON THE
INDICTMENT OR SUPERIOR COURT INFORMATION, WHICH SIXTY DAY PERIOD MAY  BE
EXTENDED IN THE DISCRETION OF THE DISTRICT ATTORNEY, SHALL TRUTHFULLY TO
THE SATISFACTION OF THE COURT PROVIDE THE DISTRICT ATTORNEY WITH ALL THE
INFORMATION  THE  DEFENDANT  HAS CONCERNING THE SOURCE OR SOURCES OF THE
LETHAL OR EXPLOSIVE DEVICE; AND
  (B) THE USE OF SUCH LETHAL OR EXPLOSIVE DEVICE  HAS  NOT  RESULTED  IN
DEATH  OR  SERIOUS BODILY INJURY TO ANOTHER PERSON WHO WAS NOT A PARTIC-
IPANT IN THE OFFENSE.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08921-01-9

              

A. 6495                             2

  4. SO LONG AS THE STATEMENTS MADE BY THE  DEFENDANT  TO  THE  DISTRICT
ATTORNEY  RELATING  TO THE SOURCES OF THE LETHAL OR EXPLOSIVE DEVICE ARE
TRUTHFUL, THEN (A) NO STATEMENT  SO  MADE  SHALL  BE  USED  AS  EVIDENCE
AGAINST  THE  DEFENDANT  IN  ANY  CRIMINAL  PROCEEDINGS  EXCEPT THAT THE
DISTRICT  ATTORNEY MAY USE SUCH STATEMENTS FOR THE PURPOSE OF CROSS-EXA-
MINATION, IMPEACHMENT AND  REBUTTAL  SHOULD  THE  DEFENDANT  EVER  OFFER
CONTRARY  EVIDENCE,  AND  (B)  THE DISTRICT ATTORNEY MAY USE AS EVIDENCE
AGAINST THE DEFENDANT ANY INDEPENDENT  EVIDENCE  WHICH  MAY  BE  DERIVED
THROUGH  AN  INVESTIGATION  INTO  THE  INFORMATION  SO  PROFFERED BY THE
DEFENDANT. AT ANY HEARING ON THE ISSUE OF WHETHER THE DEFENDANT'S STATE-
MENTS ARE TRUTHFUL, THE PEOPLE SHALL BEAR THE BURDEN OF SHOWING THAT THE
STATEMENTS ARE NOT TRUTHFUL BY PROOF BEYOND A REASONABLE DOUBT.
  5. THE TERM "LETHAL DEVICE" SHALL MEAN (A) A MACHINE GUN, (B) A PISTOL
OR REVOLVER, (C) EITHER A SHOTGUN, RIFLE OR ASSAULT WEAPON OF ANY LENGTH
OR ANY OBJECT MADE THEREFROM BY ALTERATION, MODIFICATION  OR  OTHERWISE,
(D)  AN  ELECTRONIC DART GUN, AND (E) AN ELECTRONIC STUN GUN. "EXPLOSIVE
DEVICE" SHALL MEAN ANY EXPLOSIVE, INCENDIARY OR POISON GAS (A) BOMB, (B)
GRENADE, (C) ROCKET HAVING A PROPELLANT CHARGE OF MORE THAN FOUR OUNCES,
(D) MISSILE HAVING AN  EXPLOSIVE  OR  INCENDIARY  CHARGE  OF  MORE  THAN
ONE-QUARTER  OUNCE,  (E)  MINE  OR  (F) ANY DEVICE SIMILAR TO ANY OF THE
DEVICES DESCRIBED IN THIS PARAGRAPH. "EXPLOSIVE" SHALL MEAN ANY CHEMICAL
COMPOUND MIXTURE OR DEVICE, THE PRIMARY PURPOSE OF WHICH IS TO  FUNCTION
BY EXPLOSION.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.