NY State Senate Bill 2009-S1576

Senate Bill S1576

2009-2010 Legislative Session

Establishes the crime of operating as a drug trafficker and enacts legislation relating to weapon possession and controlled substance offenses; repealer

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Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to codes
Feb 03, 2009	referred to codes

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2009-S1576 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Rpld & add §70.02 sub 2 ¶¶(b) & (c), amd Pen L, generally; amd §700.05, CP L; amd §806, Cor L; amd §1310, CPLR

2009-S1576 (ACTIVE) - Summary

Establishes the crime of operating as a drug trafficker and enacts legislation relating to weapon possession and controlled substance offenses.

2009-S1576 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S1576

 TITLE OF BILL :
An act to amend the penal law, the criminal procedure law and the
civil practice law and rules, in relation to operating as a major drug
trafficker and criminal use of a weapon in a controlled substance or
marihuana offense; to amend the correction law, in relation to
operating as a major drug trafficker; to amend the penal law, in
relation to sentencing of class D and certain class E violent
felonies, and defining certain felonies relating to the criminal sale
of controlled substances in a public park, through use of minors or
through use of a computer service; and to repeal paragraphs (b) and
(c) of subdivision 2 of section 70.02 of the penal law relating to
sentencing of class D and certain class E violent felonies


 PURPOSE :

To create new offenses or elevated punishment levels for those who
operate as a major drug trafficker, sell drugs through computer
services, with the aid of a minor or in public parks or possess or
sell such substances while in possession of a machine gun, firearm,
rifle or shotgun.

 SUMMARY OF PROVISIONS :

Section 1 of the bill adds a new paragraph 7 to section 60.04 of the
penal law to provide that a person convicted of the new crime of
criminal use of a weapon in a controlled substance or marihuana
offense (see bill section 19) shall not receive the benefit of the
recently enacted sentence reductions for drug law convictions and
shall instead be sentenced pursuant to provisions of the penal law
specifying sentences for violent felony offenders.

Sections 2 and 3 of the bill amend subdivision 1 of section 70.00 of
the penal law to provide that a person convicted of the new crime of
operating as a major drug trafficker (see bill section 19) shall not
receive the benefit of the recently enacted sentence reductions for
drug law convictions and shall instead be subject to an indeterminate
sentence of 15 years to life.

Section 4 of the bill amends paragraphs (c) and (d) of subdivision 1
of section 70.02 of the Penal Law by adding new Penal Law section
220.90 provisions relating to criminal use of a weapon in a controlled
substance or marihuana offense, or an attempt thereof, (see bill
section 19) to the list of class D and E felonies defined as violent
felony offenses.

Section 5 of the bill repeals paragraphs (b) and (c) of subdivision 2
of section 70.02 of the Penal Law and adds four new paragraphs (b),
(c), (d) and (e) to add a reference to criminal use of a weapon in a
controlled substance or marihuana offense or an attempt thereof which
is added by section 19 of the bill.

Section 6 of the bill amends paragraphs (c) and (d) of subdivision 3
of section 70.02 of the Penal Law to provide that the determinate
sentence to be imposed upon conviction of the class D violent felony
offense of criminal use of a weapon in a controlled substance or
marihuana offense defined in subdivision 2 of section 220.90, added by
section 19 of the bill, must be at least three years and must not
exceed seven years and the determinate sentence to be imposed upon
conviction of an attempt to commit such a crime, a class E violent
offense, must be at least two years and must not exceed four years.

Section 7 and 8 of the bill amend paragraphs (c) and (d) of section
70.04 to provide that the determinate sentence to be imposed on a
second violent felony offender upon conviction of a class D violent
felony offense of criminal use of a weapon in a controlled substance
or marihuana offense, added by section 19 of the bill, must be seven
years and the determinate sentence to be imposed upon conviction of an
attempt to commit such a crime, a class E violent offense, must be
four years.

Section 9 of the bill amends paragraphs (c) and (d) of subdivision 6
of section 70.06 of the Penal Law to provide that the determinate
sentence to be imposed on a second felony offender upon conviction of
criminal use of a weapon in a controlled substance or marihuana
offense defined in subdivision 2 of section 220.90, added by section
19 of the bill, must be at least five years and must not exceed seven
years and the determinate sentence to be imposed upon conviction of an
attempt to commit such a crime, a class E violent offense must be
three years.

Section 10 of the bill adds two new subdivisions, (2-h) and (2-i) to
section 70.25 of the Penal Law to provide that the sentence imposed
upon conviction of criminal use of a weapon in a controlled substance
or marihuana offense, defined in subdivision 2 of section 220.90, or
an attempt thereof, and the sentence imposed upon conviction of any
offense defined in Penal Law article 220 or 221 of the Penal Law
arising from the same criminal transaction must be ordered to run
consecutively.

Section 11 of the bill adds a new paragraph 5 to section 70.71 of the
penal law to provide that a person convicted of the new crime of
operating as a major drug trafficker (see bill section 19) shall not
receive the benefit of the recently enacted sentence reductions for
drug law convictions and shall instead be subject to an indeterminate
sentence of 15 years to life. However, the court may sentence a person
convicted of this offense to a determinate sentence applicable to
other class A drug offenders if:

a) the defendant was convicted of this crime by reason of either
selling eight ounces or more of a narcotic drug or possessing one-half
kilogram or more of a narcotic drug; and

b) the court, having regard to the nature and circumstances of the
crime and the history and character of the defendant, is of the
opinion that an indeterminate sentence would be unduly harsh.

Section 12 of the bill amends section 110.05 of the Penal Law to
provide that an attempt to commit the new A-I felony of operating as a
major drug trafficker, which is added by section 19 of the bill, is an
A-I felony.

Section 13 of the bill adds seven new subdivisions to section 220.00
of the Penal Law to define the terms "supervisory position" and
"controlled substance organization" to conform to new Penal Law
sections 220.75,220.80 and 220.85 which are added by section 19 of the
bill; to define the terms "machine gun", "firearm", "rifle" and
"shotgun" used in new Penal Law section 220.90 which is also added by
section 19 of the bill; and to amend the definition of school grounds
and define the term "public park" used in amendments to Penal Law
sections 220.34 and 220.44 which are added by sections 13 and 17 of
the bill, respectively.

Section 14 of the bill amends subdivision 7 of section 220.34 of the
Penal Law by adding conforming references to a public park in its
provisions prohibiting the sale of a controlled substance upon school
grounds and adds a new subdivision 10 to section 220.34 of the Penal
Law to make it a class C felony for a person to sell a controlled
substance with the aid of a minor and a new subdivision 11 to make it

a class C felony for a person to sell a controlled substance through a
computer service.

Section 15 of the bill adds a new subdivision 10 to section 220.39 of
the Penal Law to make it a class B felony for a person to sell a
controlled substance in violation of subdivisions (1) through (6-a) of
section 220.34 of the Penal Law with the aid of a minor and a new
subdivision 11 to make it a class B felony for a person to sell a
controlled substance in violation of subdivisions (1) through (6-a) of
section 220.34 of the Penal Law through a computer service.

Section 16 of the bill adds a new subdivision 8 to section 220.41 of
the Penal Law to make it a class A-II felony to sell a controlled
substance in violation of Penal Law section 220.39, subdivisions 1
through 9, with the aid of a minor and a new subdivision 9 to make it
a class A-II felony to sell a controlled substance in violation of
Penal Law section 220.39, subdivisions 1 through 9, through a computer
service.

Section 17 of the bill adds a new subdivision 3 to section 220.43 of
the Penal Law to make it a class A-I felony to sell a controlled
substance in violation of Penal Law section 220.41, subdivisions 1
through 7, with the aid of a minor and a new subdivision 4 to make it
a class A-I felony to sell a controlled substance in violation of
Penal Law section 220.41, subdivisions 1 through 7, through a computer
service.

Section 18 of the bill amends section 220.44 of the Penal Law by
adding conforming references to a public park in its provisions
prohibiting the sale of controlled substances upon school grounds.

Section 19 of the bill adds four new sections 220.75,220.80,220.85 and
220.90 to the Penal Law which create the crimes of operating as a
major drug trafficker and criminal use of a weapon in a controlled
substance or marihuana offense:

Section 220.80 - Operating as a major drug trafficker.

Section 220.85 - Operating as a major drug trafficker; jurisdiction
and venue.

Section 220.90 - Operating as a major drug trafficker; no defense.

Section 220.95 - Criminal use of a weapon in a controlled substance or
marihuana offense.

Section 20 of the bill amends paragraph (a) of subdivision 1 of
section 460.10 of the Penal Law to include within the definition of
enterprise corruption the new Penal Law sections 220.75 and 220.90
which are added by section 19 of the bill.

Section 21 of the bill amends subdivision 7 of section 480.00 of the
Penal Law to include within the definition of specified felony
offenses relating to asset forfeiture the new Penal Law sections
220.75 and 220.90 which are added by section 19 of the bill.

Section 22 of the bill amends paragraph (c) of subdivision 8 of
section 700.05 of the Criminal Procedure Law relating to eavesdropping
and video surveillance warrants by expanding the list of offenses
covered by that section to include sections 220.75 and 220.90 of the
Penal Law which are added by section 19 of the bill.

Section 23 of the bill amends paragraph (i) of subdivision 1 of
section 806 of the correction law to provide that a person convicted
of the new crime of operating as a major drug trafficker (see bill
section 19) shall not be eligible for presumptive release on parole.
Section 24 of the bill amends paragraph (a) of subdivision 4-b of
section 1310 of the Civil Practice Law and Rules to expand its list of
specified offenses for civil asset forfeiture purposes to include
references to the new sections 220.75 and 220.90 of the Penal Law
which are added by section 19 of the bill.

Section 25 of the bill sets forth a severability clause. Section 26
sets forth an effective date of November 1 after the bill becomes law.

 EXISTING LAW :

Chapter 738 of the Laws of 2004 enacted significant reductions in the
sentences imposed upon offenders convicted of crimes involving the
sale and possession of controlled substances and marijuana. However,
these newly enacted sentences fail to provide significant sanctions
for those who cannot be said to be included in the group of low level
addicted offenders intended to benefit from the sentence reductions.
This bill will provide appropriate sentences for those who seek to

profit from the sale of drugs and those whose drug crimes endanger our
children and communities.

 JUSTIFICATION :

 OPERATING AS A MAJOR DRUG TRAFFICKER :

Major drug traffickers, known as "drug kingpins", are responsible for
the important business decisions and strategies relative to their
illegal drug trade and routinely conspire with others to manage,
control or oversee the organization. Nevertheless, these kingpins
routinely rely on their employees, known as "drug mules" to physically
handle the day-to- day drug transactions. By arranging, but not making
the actual sale, kingpins expose their employees to felony drug
charges for possession or sale, but are able to effectively shield
themselves from such charges. Even with overwhelming evidence of a
kingpin's involvement in the management and control of a large drug
organization, prosecutors often can only charge them with conspiracy,
which at most would be a class B felony.

Recognizing this shortcoming in existing law, the bill creates the
crime of operating as a major drug trafficker. This new offense will
enhance law enforcement's ability to prosecute drug kingpins by
providing meaningful criminal sanctions for those who conspire with
others to manage, control or oversee illegal drug operations.

 USE OF CHILDREN TO SELL DRUGS :

Another disturbing strategy employed by drug sellers is the use of
children to sell drugs. Well aware that children may be overlooked as
possible suspects in a drug operation, and cognizant of the fact that
children face considerably lighter sentences when convicted of drug
crimes, the shrewdest and most cowardly of drug dealers recruit minors
to peddle their poison. Increasingly, drug sellers are using minors to
sell illegal and dangerous narcotics in schools, on the streets and in
our communities.

Equally devastating is that this type of unconscionable exploitation
is not adequately punished. Although existing law imposes an enhanced
penalty for the sale of narcotic preparations to a person under the
age of twenty-one and for the sale of controlled substance in or near
school grounds, it provides no enhanced punishment for those who sell
a controlled substance with the aid of a person less than 18 years
old.

Public protection requires that those who jeopardize the safety and
well-being of our children for their own financial gain be punished
swiftly and severely. Thus, the bill increases by one felony level the
crimes of criminal sale of a controlled substance in the second,
third, fourth and fifth degrees when such sale includes the assistance
of a person who is less than 18 years of age.

 SALE OF DRUGS OVER THE INTERNET :

In addition, the rapid expansion of the Internet has provided drug
dealers with a larger market for selling drugs, particularly to our
youth who have grown up in a digital world. The intricacies of the
Internet provide an effective tool in avoiding detection. Recognizing
the potential dangers of using the Internet to sell drugs, the bill
increases by one felony level the crimes of criminal sale of a
controlled substance in the second, third, fourth and fifth degrees
when such sale is accomplished through the use of a computer service.

 SALE OF DRUGS IN PUBLIC PARKS :

Currently the Penal Law defines "school grounds" and proscribes the
sale of any controlled substance upon such grounds as a class C felony
or a class B felony, based on the specified quantities of a controlled
substance sold. These measures were enacted to afford a degree of
protection to young New Yorkers from exposure to drugs and to more
severely punish those who would traffic in controlled substances near
our schools. No provision of law, however, treats the sale of a
controlled substance in a public park in any manner different from a
drug sale that occurs elsewhere.

The bill establishes a definition of a "public park" which closely
parallels that of "school grounds" and adds this new term to existing
provisions which penalize sales of controlled substances on school
grounds and also penalizes sales of controlled substance on a school
bus. Thus, the bill treats drug transactions in a park on the same
basis as such trafficking upon school grounds. Our parks, and
especially our younger citizens who enjoy them, should be free of drug
peddlers and those who would sell controlled substances in these areas
deserve the imposition of increased criminal sanctions.

 GUNS AND DRUGS :

The intrinsic link between gun violence and drugs cannot be
overlooked, we must recognize that when mixed together, drugs and guns
are a deadly combination. Individuals who possess or sell controlled
substances and possess a weapon, must receive a sentence reflecting
the danger to society that they represent. The creation of new violent
felony offenses which prohibit the sale and possession of a controlled
substance along with possession of a firearm, rifle or shotgun sends
the message that such activity will not be tolerated.

 LEGISLATIVE HISTORY :

2005 - S.3079 - 3rd reading
2006 - S.3079 - Codes
S.159 - 2007-08 - Codes

 FISCAL IMPLICATIONS :

None

 EFFECTIVE DATE :
The first of November after the bill becomes law.

2009-S1576 (ACTIVE) - Bill Text download pdf

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

                                  1576

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 3, 2009
                               ___________

Introduced  by  Sens.  GOLDEN, ALESI, BONACIC, HANNON, MAZIARZ, MORAHAN,
  SALAND, SEWARD, SKELOS, VOLKER -- read twice and ordered printed,  and
  when printed to be committed to the Committee on Codes

AN  ACT to amend the penal law, the criminal procedure law and the civil
  practice law and rules, in relation to operating as a major drug traf-
  ficker and criminal use of a weapon in a controlled substance or mari-
  huana offense; to amend the correction law, in relation  to  operating
  as  a  major  drug  trafficker; to amend the penal law, in relation to
  sentencing of class D and certain class E violent felonies, and defin-
  ing certain felonies relating  to  the  criminal  sale  of  controlled
  substances in a public park, through use of minors or through use of a
  computer  service; and to repeal paragraphs (b) and (c) of subdivision
  2 of section 70.02 of the penal law relating to sentencing of class  D
  and certain class E violent felonies

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

  Section 1. Subdivision 1 of section 60.04 of the penal law,  as  added
by  chapter  738 of the laws of 2004, is amended and a new subdivision 7
is added to read as follows:
  1. Applicability. Notwithstanding the provisions of any law, EXCEPT AS
PROVIDED IN SUBDIVISION SEVEN OF THIS SECTION, this section shall govern
the dispositions authorized when a person is  to  be  sentenced  upon  a
conviction  of a felony offense defined in article two hundred twenty or
two hundred twenty-one of this  chapter  or  when  a  person  is  to  be
sentenced upon a conviction of such a felony as a multiple felony offen-
der as defined in subdivision five of this section.
  7.  CERTAIN  CLASS D AND CLASS E FELONIES. EVERY PERSON CONVICTED OF A
CLASS D FELONY OR A CLASS E  FELONY  WHICH  IS  ALSO  A  VIOLENT  FELONY
OFFENSE DEFINED IN SUBDIVISION ONE OF SECTION 70.02 OF THIS CHAPTER MUST
BE  SENTENCED  TO  IMPRISONMENT IN ACCORDANCE WITH SECTION 70.02 OF THIS
CHAPTER, UNLESS SUCH PERSON IS SENTENCED TO IMPRISONMENT AS  A  MULTIPLE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06204-01-9

S. 1576                             2

FELONY OFFENDER IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF SUBDIVI-
SION SIX OF SECTION 60.05 OF THIS ARTICLE.
  S  2.  Subdivision  1 of section 70.00 of the penal law, as amended by
section 36 of chapter 7 of the laws of  2007,  is  amended  to  read  as
follows:
  1.  Indeterminate  sentence.  Except as provided in subdivisions four,
five and six of this  section  or  section  70.80  of  this  article,  a
sentence  of  imprisonment  for a felony, other than a felony defined in
article two hundred twenty or two hundred  twenty-one  of  this  chapter
(WITH THE EXCEPTION OF THE CLASS A-I FELONY OR ATTEMPTED FELONY OF OPER-
ATING  AS  A  MAJOR DRUG TRAFFICKER AS DEFINED IN SECTION 220.80 OF THIS
CHAPTER), shall be an indeterminate sentence. When such  a  sentence  is
imposed,  the  court  shall impose a maximum term in accordance with the
provisions of subdivision two of this section and the minimum period  of
imprisonment shall be as provided in subdivision three of this section.
  S  3.  Subdivision  1 of section 70.00 of the penal law, as amended by
section 37 of chapter 7 of the laws of  2007,  is  amended  to  read  as
follows:
  1. Indeterminate sentence. Except as provided in subdivisions four and
five  of  this  section  or section 70.80 of this article, a sentence of
imprisonment for a felony, other than a felony defined  in  article  two
hundred  twenty  or  two  hundred  twenty-one  of this chapter (WITH THE
EXCEPTION OF THE CLASS A-I FELONY OR ATTEMPTED FELONY OF OPERATING AS  A
MAJOR  DRUG  TRAFFICKER  AS  DEFINED IN SECTION 220.80 OF THIS CHAPTER),
shall be an indeterminate sentence. When such a sentence is imposed, the
court shall impose a maximum term in accordance with the  provisions  of
subdivision  two  of this section and the minimum period of imprisonment
shall be as provided in subdivision three of this section.
  S 4. Paragraphs (c) and (d) of subdivision 1 of section 70.02  of  the
penal  law,  as amended by chapter 7 of the laws of 2007, are amended to
read as follows:
  (c) Class D violent felony offenses: an attempt to commit any  of  the
class C felonies set forth in paragraph (b); reckless assault of a child
as defined in section 120.02, assault in the second degree as defined in
section 120.05, menacing a police officer or peace officer as defined in
section  120.18, stalking in the first degree, as defined in subdivision
one of section 120.60, rape in the second degree as defined  in  section
130.30,  criminal  sexual act in the second degree as defined in section
130.45, sexual abuse in the first degree as defined in  section  130.65,
course of sexual conduct against a child in the second degree as defined
in  section  130.80,  aggravated  sexual  abuse  in  the third degree as
defined in section 130.66, facilitating a sex offense with a  controlled
substance  as  defined  in section 130.90, CRIMINAL USE OF A WEAPON IN A
CONTROLLED SUBSTANCE OR MARIHUANA OFFENSE AS DEFINED IN SECTION  220.95,
criminal possession of a weapon in the third degree as defined in subdi-
vision  five,  six, seven or eight of section 265.02, criminal sale of a
firearm in the third degree as defined in section 265.11, intimidating a
victim or witness in the second degree as  defined  in  section  215.16,
soliciting  or  providing  support for an act of terrorism in the second
degree as defined in section 490.10, and making a terroristic threat  as
defined  in  section  490.20, falsely reporting an incident in the first
degree as defined in section 240.60, placing a false bomb  or  hazardous
substance  in  the  first degree as defined in section 240.62, placing a
false bomb or hazardous substance in a sports  stadium  or  arena,  mass
transportation  facility or enclosed shopping mall as defined in section

S. 1576                             3

240.63, and aggravated unpermitted use of  indoor  pyrotechnics  in  the
first degree as defined in section 405.18.
  (d)  Class  E violent felony offenses: an attempt to commit any of the
felonies of criminal possession of a  weapon  in  the  third  degree  as
defined  in subdivision five, six, seven or eight of section 265.02 as a
lesser included offense of that section as defined in section 220.20  of
the criminal procedure law, AN ATTEMPT TO COMMIT CRIMINAL USE OF A WEAP-
ON  IN A CONTROLLED SUBSTANCE OR MARIHUANA OFFENSE AS DEFINED IN SECTION
220.95 OF THIS CHAPTER AS A LESSER INCLUDED OFFENSE OF THAT  SECTION  AS
DEFINED  IN  SECTION  220.20  OF  THE CRIMINAL PROCEDURE LAW, persistent
sexual abuse as defined in section 130.53, aggravated  sexual  abuse  in
the  fourth  degree as defined in section 130.65-a, falsely reporting an
incident in the second degree as defined in section 240.55 and placing a
false bomb or hazardous substance in the second  degree  as  defined  in
section 240.61.
  S  5.  Paragraphs (b) and (c) of subdivision 2 of section 70.02 of the
penal law are REPEALED and four new paragraphs (b), (c), (d) and (e) are
added to read as follows:
  (B) EXCEPT AS PROVIDED IN SUBDIVISION SIX OF  SECTION  60.05  OF  THIS
TITLE  AND SUBDIVISION FOUR OF THIS SECTION, THE SENTENCE IMPOSED UPON A
PERSON WHO STANDS CONVICTED OF A CLASS D VIOLENT FELONY  OFFENSE,  OTHER
THAN THE OFFENSES OF CRIMINAL POSSESSION OF A WEAPON IN THE THIRD DEGREE
AS DEFINED IN SUBDIVISION FIVE, SEVEN OR EIGHT OF SECTION 265.02 OF THIS
CHAPTER  OR  CRIMINAL USE OF A WEAPON IN A CONTROLLED SUBSTANCE OR MARI-
HUANA OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION  220.95  OF  THIS
CHAPTER,  MUST  BE  IN ACCORDANCE WITH THE APPLICABLE PROVISIONS OF THIS
CHAPTER RELATING TO SENTENCING FOR CLASS D FELONIES  PROVIDED,  HOWEVER,
THAT  WHERE  A  SENTENCE  OF  IMPRISONMENT  IS  IMPOSED WHICH REQUIRES A
COMMITMENT TO  THE  STATE  DEPARTMENT  OF  CORRECTIONAL  SERVICES,  SUCH
SENTENCE MUST BE A DETERMINATE SENTENCE IN ACCORDANCE WITH PARAGRAPH (C)
OF SUBDIVISION THREE OF THIS SECTION.
  (C)  EXCEPT  AS  PROVIDED  IN SUBDIVISION SIX OF SECTION 60.05 OF THIS
TITLE, THE SENTENCE IMPOSED UPON A PERSON WHO STANDS  CONVICTED  OF  THE
CLASS D VIOLENT FELONY OFFENSE OF CRIMINAL POSSESSION OF A WEAPON IN THE
THIRD  DEGREE  AS DEFINED IN SUBDIVISION FIVE, SEVEN OR EIGHT OF SECTION
265.02 OF THIS CHAPTER OR THE CLASS E VIOLENT FELONY OF ATTEMPTED CRIMI-
NAL POSSESSION OF A WEAPON IN THE THIRD DEGREE AS DEFINED IN SUBDIVISION
FIVE, SEVEN OR EIGHT OF SECTION 265.02 OF THIS CHAPTER MUST BE A  DETER-
MINATE  SENTENCE  OF  IMPRISONMENT,  OR,  IN THE ALTERNATIVE, A DEFINITE
SENTENCE OF IMPRISONMENT FOR A PERIOD OF NO LESS THAN ONE  YEAR,  EXCEPT
THAT:
  (I)  THE  COURT MAY IMPOSE ANY OTHER SENTENCE AUTHORIZED BY LAW UPON A
PERSON WHO HAS NOT BEEN PREVIOUSLY CONVICTED IN  THE  FIVE  YEARS  IMME-
DIATELY  PRECEDING THE COMMISSION OF THE OFFENSE FOR A CLASS A MISDEMEA-
NOR DEFINED IN THIS CHAPTER, IF THE COURT HAVING REGARD  TO  THE  NATURE
AND  CIRCUMSTANCES  OF THE CRIME AND TO THE HISTORY AND CHARACTER OF THE
DEFENDANT, FINDS ON THE RECORD THAT SUCH SENTENCE WOULD BE UNDULY  HARSH
AND THAT THE ALTERNATIVE SENTENCE WOULD BE CONSISTENT WITH PUBLIC SAFETY
AND DOES NOT DEPRECATE THE SERIOUSNESS OF THE CRIME; AND
  (II)  THE  COURT MAY APPLY THE PROVISIONS OF PARAGRAPHS (B) AND (C) OF
SUBDIVISION FOUR OF THIS SECTION WHEN IMPOSING A SENTENCE UPON A  PERSON
WHO  HAS  PREVIOUSLY  BEEN CONVICTED OF A CLASS A MISDEMEANOR DEFINED IN
THIS CHAPTER IN THE FIVE YEARS IMMEDIATELY PRECEDING THE  COMMISSION  OF
THE OFFENSE.
  (D)  EXCEPT  AS  PROVIDED  IN SUBDIVISION SIX OF SECTION 60.05 OF THIS
TITLE, THE SENTENCE IMPOSED UPON A PERSON WHO STANDS  CONVICTED  OF  THE

S. 1576                             4

CLASS  D  VIOLENT  FELONY  OFFENSE  OF  CRIMINAL  USE  OF  A WEAPON IN A
CONTROLLED SUBSTANCE OR MARIHUANA OFFENSE AS DEFINED IN SUBDIVISION  TWO
OF  SECTION  220.95  OF  THIS  CHAPTER MUST BE A DETERMINATE SENTENCE OF
IMPRISONMENT  IN  ACCORDANCE  WITH PARAGRAPH (C) OF SUBDIVISION THREE OF
THIS SECTION.
  (E) EXCEPT AS PROVIDED IN SUBDIVISION SIX OF  SECTION  60.05  OF  THIS
TITLE,  THE  SENTENCE  IMPOSED UPON A PERSON WHO STANDS CONVICTED OF THE
CLASS E VIOLENT FELONY OFFENSE OF ATTEMPTED CRIMINAL USE OF A WEAPON  IN
A  CONTROLLED  SUBSTANCE  OR MARIHUANA OFFENSE AS DEFINED IN SUBDIVISION
TWO OF SECTION 220.95 OF THIS CHAPTER MUST BE A DETERMINATE SENTENCE  OF
IMPRISONMENT  IN  ACCORDANCE  WITH PARAGRAPH (D) OF SUBDIVISION THREE OF
THIS SECTION.
  S 6. Paragraphs (c) and (d) of subdivision 3 of section 70.02  of  the
penal law, as amended by chapter 765 of the laws of 2005, are amended to
read as follows:
  (c) For a class D felony, the term must be at least two years and must
not  exceed  seven  years,  provided,  however, that the term must be at
least two years and must not exceed eight years where  the  sentence  is
for  the  crime of menacing a police officer or peace officer as defined
in section 120.18 of this chapter; PROVIDED THAT FOR THE CLASS D  FELONY
OF  CRIMINAL  USE  OF  A  WEAPON  IN A CONTROLLED SUBSTANCE OR MARIHUANA
OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION 220.95 OF THIS CHAPTER,
THE TERM MUST BE AT LEAST THREE YEARS AND MUST NOT EXCEED  SEVEN  YEARS;
and
  (d)  For  a class E felony, the term must be at least one and one-half
years and must not exceed four years; PROVIDED  THAT  FOR  THE  CLASS  E
FELONY  OF  ATTEMPTED CRIMINAL USE OF A WEAPON IN A CONTROLLED SUBSTANCE
OR MARIHUANA OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION 220.95  OF
THIS  CHAPTER,  THE  TERM MUST BE AT LEAST TWO YEARS AND MUST NOT EXCEED
FOUR YEARS.
  S 7. Paragraphs (b), (c) and (d) of subdivision 3 of section 70.04  of
the  penal law, as amended by chapter 3 of the laws of 1995, are amended
to read as follows:
  (b) For a class C felony, the term must be at least  seven  years  and
must not exceed fifteen years; [and]
  (c)  For  a  class  D felony, the term must be at least five years and
must not exceed seven years[.]; PROVIDED THAT FOR THE CLASS D FELONY  OF
CRIMINAL  USE OF A WEAPON IN A CONTROLLED SUBSTANCE OR MARIHUANA OFFENSE
AS DEFINED IN SUBDIVISION TWO OF SECTION 220.95  OF  THIS  CHAPTER,  THE
TERM MUST BE SEVEN YEARS; AND
  (d)  For  a  class E felony, the term must be at least three years and
must not exceed four years; PROVIDED THAT FOR THE CLASS E VIOLENT FELONY
OF ATTEMPTED CRIMINAL USE OF A WEAPON IN A CONTROLLED SUBSTANCE OR MARI-
HUANA OFFENSE AS DEFINED IN SUBDIVISION TWO OF SECTION  220.95  OF  THIS
CHAPTER, THE TERM MUST BE FOUR YEARS.
  S  8. Paragraphs (b), (c) and (d) of subdivision 3 of section 70.04 of
the penal law, paragraphs (b) and (c) as added by  chapter  481  of  the
laws  of  1978, and paragraph (d) as added by chapter 233 of the laws of
1980, are amended to read as follows:
  (b) For a class C felony, the term must be at least  eight  years  and
must not exceed fifteen years; [and]
  (c)  For  a  class  D felony, the term must be at least five years and
must not exceed seven years[.]; PROVIDED THAT FOR THE CLASS D FELONY  OF
CRIMINAL  USE OF A WEAPON IN A CONTROLLED SUBSTANCE OR MARIHUANA OFFENSE
AS DEFINED IN SUBDIVISION TWO OF SECTION 220.95  OF  THIS  CHAPTER,  THE
TERM MUST BE SEVEN YEARS; AND

S. 1576                             5

  (d)  For  a  class  E  felony,  the  term must be at least four years;
PROVIDED THAT FOR THE CLASS E VIOLENT FELONY OF ATTEMPTED  CRIMINAL  USE
OF A WEAPON IN A CONTROLLED SUBSTANCE OR MARIHUANA OFFENSE AS DEFINED IN
SUBDIVISION TWO OF SECTION 220.95 OF THIS CHAPTER, THE TERM MUST BE FOUR
YEARS.
  S  9.  Paragraphs (c) and (d) of subdivision 6 of section 70.06 of the
penal law, as added by chapter 3 of the laws of  1995,  are  amended  to
read as follows:
  (c)  For  a  class D violent felony offense, the term must be at least
three years and must not exceed seven years; PROVIDED THAT FOR THE CLASS
D FELONY OF CRIMINAL USE OF A WEAPON IN A CONTROLLED SUBSTANCE OR  MARI-
HUANA  OFFENSE  AS  DEFINED IN SUBDIVISION TWO OF SECTION 220.95 OF THIS
CHAPTER, THE TERM MUST BE AT LEAST FIVE YEARS AND MUST NOT EXCEED  SEVEN
YEARS; and
  (d)  For  a  class E violent felony offense, the term must be at least
two years and must not exceed four years; PROVIDED THAT FOR THE CLASS  E
VIOLENT  FELONY  OF  ATTEMPTED  CRIMINAL USE OF A WEAPON IN A CONTROLLED
SUBSTANCE OR MARIHUANA OFFENSE AS DEFINED IN SUBDIVISION TWO OF  SECTION
220.95 OF THIS CHAPTER, THE TERM MUST BE THREE YEARS.
  S  10.  Section  70.25  of  the penal law is amended by adding two new
subdivisions 2-h and 2-i to read as follows:
  2-H. WHENEVER A PERSON IS CONVICTED OF CRIMINAL USE OF A WEAPON  IN  A
CONTROLLED  SUBSTANCE OR MARIHUANA OFFENSE AS DEFINED IN SUBDIVISION TWO
OF SECTION 220.95 OF THIS CHAPTER, THE SENTENCE IMPOSED BY THE COURT FOR
SUCH OFFENSE MUST BE ORDERED TO RUN CONSECUTIVELY TO  ANY  INDETERMINATE
OR  DETERMINATE  SENTENCE OF IMPRISONMENT IMPOSED UPON CONVICTION OF ANY
OFFENSE DEFINED IN ARTICLE TWO HUNDRED TWENTY OR TWO HUNDRED  TWENTY-ONE
OF THIS CHAPTER ARISING FROM THE SAME CRIMINAL TRANSACTION.
  2-I.  WHENEVER  A  PERSON  IS CONVICTED OF ATTEMPTED CRIMINAL USE OF A
WEAPON IN A CONTROLLED SUBSTANCE OR  MARIHUANA  OFFENSE  AS  DEFINED  IN
SUBDIVISION  TWO OF SECTION 220.95 OF THIS CHAPTER, THE SENTENCE IMPOSED
BY THE COURT FOR SUCH OFFENSE MUST BE ORDERED TO  RUN  CONSECUTIVELY  TO
ANY  INDETERMINATE  OR DETERMINATE SENTENCE OF IMPRISONMENT IMPOSED UPON
CONVICTION OF ANY OFFENSE DEFINED IN ARTICLE TWO HUNDRED TWENTY  OR  TWO
HUNDRED TWENTY-ONE OF THIS CHAPTER ARISING FROM THE SAME CRIMINAL TRANS-
ACTION.
  S  11.  Paragraph (a) of subdivision 2, paragraph (a) of subdivision 3
and paragraph (a) of subdivision 4 of section 70.71 of the penal law, as
added by chapter 738 of the laws of 2004, are amended and a new subdivi-
sion 5 is added to read as follows:
  (a) Applicability. Except as provided in subdivision three [or],  four
OR  FIVE  of  this  section,  this  subdivision  shall apply to a person
convicted of a class A felony as defined in article two  hundred  twenty
of this chapter.
  (a)  Applicability.  [This]  EXCEPT AS PROVIDED IN SUBDIVISION FIVE OF
THIS SECTION, THIS subdivision shall  apply  to  a  second  felony  drug
offender  whose  prior  felony conviction or convictions did not include
one or more violent felony offenses.
  (a) Applicability. [This] EXCEPT AS PROVIDED IN  SUBDIVISION  FIVE  OF
THIS  SECTION,  THIS  subdivision  shall  apply  to a second felony drug
offender whose prior felony conviction was a violent felony.
  5. SENTENCE OF IMPRISONMENT FOR OPERATING AS A MAJOR DRUG TRAFFICKER.
  (A) APPLICABILITY. THIS SUBDIVISION SHALL APPLY TO A PERSON  CONVICTED
OF  THE  CLASS  A-I  FELONY  OF  OPERATING AS A MAJOR DRUG TRAFFICKER AS
DEFINED IN SECTION 220.80 OF THIS CHAPTER.

S. 1576                             6

  (B) AUTHORIZED SENTENCE. EXCEPT AS PROVIDED IN PARAGRAPH (C)  OF  THIS
SUBDIVISION,  THE  COURT SHALL IMPOSE AN INDETERMINATE TERM OF IMPRISON-
MENT FOR AN A-I FELONY, IN ACCORDANCE WITH  THE  PROVISIONS  OF  SECTION
70.00 OF THIS ARTICLE.
  (C)  ALTERNATIVE DETERMINATE SENTENCE. IF A DEFENDANT STANDS CONVICTED
OF VIOLATING SUBDIVISION TWO OF SECTION 220.80 OF THIS CHAPTER,  AND  IF
THE  COURT,  HAVING  REGARD TO THE NATURE AND CIRCUMSTANCES OF THE CRIME
AND THE HISTORY AND CHARACTER OF THE DEFENDANT, IS OF THE OPINION THAT A
SENTENCE OF IMPRISONMENT IS NECESSARY BUT THAT IT WOULD BE UNDULY  HARSH
TO  IMPOSE  THE  INDETERMINATE SENTENCE FOR A CLASS A-I FELONY SPECIFIED
UNDER SECTION 70.00 OF THIS ARTICLE, THE COURT MAY IMPOSE  THE  DETERMI-
NATE  SENTENCE  OF IMPRISONMENT AUTHORIZED BY THIS SECTION FOR A CLASS A
DRUG FELONY; IN ANY SUCH EVENT, THE  REASONS  FOR  THE  COURT'S  OPINION
SHALL BE SET FORTH ON THE RECORD.
  S  12. Subdivision 1 of section 110.05 of the penal law, as amended by
chapter 93 of the laws of 2006, is amended to read as follows:
  1. Class A-I felony when the crime attempted  is  the  A-I  felony  of
murder  in the first degree, aggravated murder as defined in subdivision
one of  section  125.26  of  this  chapter,  criminal  possession  of  a
controlled  substance in the first degree, criminal sale of a controlled
substance in the first degree, criminal  possession  of  a  chemical  or
biological  weapon  in the first degree [or], criminal use of a chemical
or biological weapon in the first degree OR OPERATING AS  A  MAJOR  DRUG
TRAFFICKER;
  S 13. Subdivision 14 of section 220.00 of the penal law, as amended by
chapter  292  of the laws of 1994, is amended and seven new subdivisions
18, 19, 20, 21, 22, 23 and 24 are added to read as follows:
  14. "School grounds" means (a) in or on or within any building, struc-
ture, SCHOOL BUS AS DEFINED IN SECTION  ONE  HUNDRED  FORTY-TWO  OF  THE
VEHICLE  AND  TRAFFIC  LAW,  athletic  playing field, playground or land
contained within the real property boundary line of a public or  private
elementary,  parochial,  intermediate,  junior high, vocational, or high
school, or (b) any area accessible to  the  public  located  within  one
thousand  feet  of  the  real property boundary line comprising any such
school or any parked automobile or other parked vehicle  located  within
one thousand feet of the real property boundary line comprising any such
school.  For  the  purposes  of  this section an "area accessible to the
public" shall mean sidewalks, streets, parking lots, parks, playgrounds,
stores and restaurants.
  18. "SUPERVISORY POSITION" MEANS AND INCLUDES THE  PRINCIPAL  ADMINIS-
TRATOR,  ORGANIZER  OR  LEADER OF A CONTROLLED SUBSTANCE ORGANIZATION OR
ONE OF SEVERAL PRINCIPAL ADMINISTRATORS,  ORGANIZERS  OR  LEADERS  OF  A
CONTROLLED SUBSTANCE ORGANIZATION.
  19.  "CONTROLLED  SUBSTANCE  ORGANIZATION"  MEANS FOUR OR MORE PERSONS
SHARING A COMMON PURPOSE  TO  ENGAGE  IN  CONDUCT  THAT  CONSTITUTES  OR
ADVANCES THE COMMISSION OF AN OFFENSE UNDER THIS ARTICLE.
  20.  "PUBLIC  PARK"  MEANS (A) IN OR ON OR WITHIN ANY BUILDING, STRUC-
TURE, ATHLETIC PLAYING FIELD, PLAYGROUND OR LAND  CONTAINED  WITHIN  THE
REAL  PROPERTY  BOUNDARY LINE OF ANY LAND OWNED, LEASED OR MAINTAINED BY
THE STATE OR ANY POLITICAL SUBDIVISION THEREOF, AND WHICH IS MANAGED AND
DEDICATED FOR PARK OR RECREATIONAL PURPOSES, OR (B) ANY AREA  ACCESSIBLE
TO THE PUBLIC LOCATED WITHIN TWO HUNDRED FEET OF THE REAL PROPERTY BOUN-
DARY  LINE  COMPRISING  ANY  SUCH PARK OR ANY PARKED AUTOMOBILE OR OTHER
PARKED VEHICLE LOCATED WITHIN TWO HUNDRED  FEET  OF  THE  REAL  PROPERTY
BOUNDARY  LINE  COMPRISING  SUCH PARK. FOR THE PURPOSES OF THIS SUBDIVI-

S. 1576                             7

SION, AN "AREA ACCESSIBLE TO THE PUBLIC" SHALL MEAN SIDEWALKS,  STREETS,
PARKING LOTS, PLAYGROUNDS, STORES AND RESTAURANTS.
  21.  "MACHINE-GUN" SHALL HAVE THE SAME MEANING AS THAT TERM IS DEFINED
IN SUBDIVISION ONE OF SECTION 265.00 OF THIS CHAPTER.
  22. "FIREARM" SHALL HAVE THE SAME MEANING AS THAT TERM IS  DEFINED  IN
SUBDIVISION THREE OF SECTION 265.00 OF THIS CHAPTER.
  23.  "RIFLE"  SHALL  HAVE  THE SAME MEANING AS THAT TERM IS DEFINED IN
SUBDIVISION ELEVEN OF SECTION 265.00 OF THIS CHAPTER.
  24. "SHOTGUN" SHALL HAVE THE SAME MEANING AS THAT TERM IS  DEFINED  IN
SUBDIVISION TWELVE OF SECTION 265.00 OF THIS CHAPTER.
  S  14. Subdivisions 7 and 9 of section 220.34 of the penal law, subdi-
vision 7 as amended by chapter 436 of the laws of 2006 and subdivision 9
as added by chapter 264 of the laws of 2003, are  amended  and  two  new
subdivisions 10 and 11 are added to read as follows:
  7. a controlled substance in violation of section 220.31 of this arti-
cle, when such sale takes place upon school grounds, A PUBLIC PARK or on
a school bus; or
  9.  one  or  more  preparations,  compounds,  mixtures  or  substances
containing gamma hydroxybutyric acid, as defined in  paragraph  four  of
subdivision (e) of schedule I of section thirty-three hundred six of the
public  health  law,  and  said  preparations,  compounds,  mixtures  or
substances are of an aggregate weight of twenty-eight grams or  more[.];
OR
  10.  A CONTROLLED SUBSTANCE, BEING EIGHTEEN YEARS OLD OR MORE, AND, IN
THE COURSE OR COMMISSION OF SUCH SALE, IS AIDED BY ANOTHER  PERSON  LESS
THAN EIGHTEEN YEARS OF AGE; OR
  11.  A CONTROLLED SUBSTANCE THROUGH A COMPUTER SERVICE AS SUCH TERM IS
DEFINED IN SUBDIVISION FOUR OF SECTION 156.00 OF THIS CHAPTER.
  S 15. Subdivision 9 of section 220.39 of the penal law,  as  added  by
chapter  410 of the laws of 1979, is amended and two new subdivisions 10
and 11 are added to read as follows:
  9. a narcotic preparation to  a  person  less  than  twenty-one  years
old[.]; OR
  10.  A  CONTROLLED  SUBSTANCE  IN  VIOLATION  OF SUBDIVISION ONE, TWO,
THREE, FOUR, FIVE, SIX OR SIX-A OF SECTION 220.34 OF THIS ARTICLE, BEING
EIGHTEEN YEARS OLD OR MORE, AND, IN THE COURSE  OR  COMMISSION  OF  SUCH
SALE, IS AIDED BY ANOTHER PERSON LESS THAN EIGHTEEN YEARS OF AGE; OR
  11.  A  CONTROLLED  SUBSTANCE  IN  VIOLATION  OF SUBDIVISION ONE, TWO,
THREE, FOUR, FIVE, SIX OR  SIX-A  OF  SECTION  220.34  OF  THIS  ARTICLE
THROUGH  A  COMPUTER SERVICE AS SUCH TERM IS DEFINED IN SUBDIVISION FOUR
OF SECTION 156.00 OF THIS CHAPTER.
  S 16. Subdivision 7 of section 220.41 of the penal law, as amended  by
chapter  75  of  the laws of 1995, is amended and two new subdivisions 8
and 9 are added to read as follows:
  7. methadone and the methadone weighs three hundred  sixty  milligrams
or more[.]; OR
  8. A CONTROLLED SUBSTANCE IN VIOLATION OF SUBDIVISION ONE, TWO, THREE,
FOUR, FIVE, SIX, SEVEN, EIGHT OR NINE OF SECTION 220.39 OF THIS ARTICLE,
BEING  EIGHTEEN  YEARS  OLD OR MORE, AND, IN THE COURSE OR COMMISSION OF
SUCH SALE, IS AIDED BY ANOTHER PERSON LESS THAN EIGHTEEN YEARS  OF  AGE;
OR
  9. A CONTROLLED SUBSTANCE IN VIOLATION OF SUBDIVISION ONE, TWO, THREE,
FOUR,  FIVE, SIX, SEVEN, EIGHT OR NINE OF SECTION 220.39 OF THIS ARTICLE
THROUGH A COMPUTER SERVICE AS SUCH TERM IS DEFINED IN  SUBDIVISION  FOUR
OF SECTION 156.00 OF THIS CHAPTER.

S. 1576                             8

  S  17. Subdivision 2 of section 220.43 of the penal law, as amended by
chapter 75 of the laws of 1995, is amended and two  new  subdivisions  3
and 4 are added to read as follows:
  2.  methadone  and  the  methadone  weighs  two thousand eight hundred
eighty milligrams or more[.]; OR
  3. A CONTROLLED SUBSTANCE IN VIOLATION OF SUBDIVISION ONE, TWO, THREE,
FOUR, FIVE, SIX OR SEVEN OF SECTION 220.41 OF THIS ARTICLE, BEING  EIGH-
TEEN  YEARS  OLD OR MORE, AND, IN THE COURSE OR COMMISSION OF SUCH SALE,
IS AIDED BY ANOTHER PERSON LESS THAN EIGHTEEN YEARS OF AGE; OR
  4. A CONTROLLED SUBSTANCE IN VIOLATION OF SUBDIVISION ONE, TWO, THREE,
FOUR, FIVE, SIX OR SEVEN OF SECTION 220.41 OF  THIS  ARTICLE  THROUGH  A
COMPUTER  SERVICE AS SUCH TERM IS DEFINED IN SUBDIVISION FOUR OF SECTION
156.00 OF THIS CHAPTER.
  S 18. The section heading, the opening paragraph, subdivisions 1 and 2
and the closing paragraph of  section  220.44  of  the  penal  law,  the
section  heading,  the  opening  paragraph  and the closing paragraph as
amended by chapter 289 of the laws of 1998 and subdivisions 1 and  2  as
amended  by  chapter  436  of  the  laws of 2006, are amended to read as
follows:
  Criminal sale of a controlled substance in or near school grounds OR A
PUBLIC PARK.
  A person is guilty of criminal sale of a controlled  substance  in  or
near school grounds OR A PUBLIC PARK when [he] SUCH PERSON knowingly and
unlawfully sells:
  1.  a controlled substance in violation of any one of subdivisions one
through six-a of section 220.34 of this article, when  such  sale  takes
place upon school grounds, A PUBLIC PARK or on a school bus; or
  2.  a controlled substance in violation of any one of subdivisions one
through [eight] NINE of section 220.39 of this article, when  such  sale
takes place upon school grounds, A PUBLIC PARK or on a school bus; or
  Criminal sale of a controlled substance in or near school grounds OR A
PUBLIC PARK is a class B felony.
  S  19.  The  penal  law is amended by adding four new sections 220.80,
220.85, 220.90 and 220.95 to read as follows:
S 220.80 OPERATING AS A MAJOR DRUG TRAFFICKER.
  A PERSON IS GUILTY OF OPERATING AS A MAJOR DRUG TRAFFICKER WHEN:
  1. AS A MEMBER OF A CONTROLLED  SUBSTANCE  ORGANIZATION,  SUCH  PERSON
OCCUPIES A SUPERVISORY POSITION WITHIN SUCH ORGANIZATION AND, WITHIN ANY
PERIOD OF TWELVE MONTHS OR LESS:
  (A)  SUCH  CONTROLLED  SUBSTANCE  ORGANIZATION SELLS OR POSSESSES WITH
INTENT TO  SELL,  ONE  OR  MORE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR
SUBSTANCES CONTAINING A NARCOTIC DRUG, AND SUCH PREPARATIONS, COMPOUNDS,
MIXTURES  OR SUBSTANCES HAVE A TOTAL AGGREGATE WEIGHT OF ONE KILOGRAM OR
MORE; OR
  (B)  SUCH  CONTROLLED  SUBSTANCE  ORGANIZATION  SELLS  ONE   OR   MORE
CONTROLLED  SUBSTANCES, AND THE PROCEEDS COLLECTED OR DUE FROM SUCH SALE
OR SALES HAVE A TOTAL AGGREGATE VALUE OF FIFTY THOUSAND DOLLARS OR MORE;
OR
  2. SUCH PERSON KNOWINGLY AND UNLAWFULLY:
  (A) SELLS ONE OR MORE PREPARATIONS, COMPOUNDS, MIXTURES, OR SUBSTANCES
CONTAINING A NARCOTIC DRUG, AND THE PREPARATIONS, COMPOUNDS, MIXTURES OR
SUBSTANCES ARE OF AN AGGREGATE WEIGHT OF EIGHT OUNCES OR MORE; OR
  (B)  POSSESSES  ONE  OR  MORE  PREPARATIONS,  COMPOUNDS,  MIXTURES  OR
SUBSTANCES  CONTAINING A NARCOTIC DRUG, AND THE PREPARATIONS, COMPOUNDS,
MIXTURES OR SUBSTANCES ARE OF AN AGGREGATE WEIGHT OF HALF A KILOGRAM  OR
MORE.

S. 1576                             9

  OPERATING AS A MAJOR DRUG TRAFFICKER IS A CLASS A-I FELONY.
S 220.85 OPERATING AS A MAJOR DRUG TRAFFICKER; JURISDICTION AND VENUE.
  1. A PERSON MAY BE PROSECUTED FOR OPERATING AS A MAJOR DRUG TRAFFICKER
IN THE COUNTY IN WHICH HE OR SHE ENTERED INTO THE AGREEMENT TO ENGAGE IN
OR  CAUSE  THE  PERFORMANCE OF CONDUCT DEFINED IN SECTION 220.80 OF THIS
ARTICLE OR IN ANY COUNTY IN WHICH AN OVERT ACT  IN  FURTHERANCE  THEREOF
WAS COMMITTED.
  2.  SUCH  AN  AGREEMENT  MADE  IN ANOTHER JURISDICTION TO ENGAGE IN OR
CAUSE THE PERFORMANCE OF CONDUCT WITHIN THIS STATE, WHICH WOULD  CONSTI-
TUTE  THE  CRIME  OF  OPERATING AS A MAJOR DRUG TRAFFICKER AS DEFINED IN
SECTION 220.80 OF THIS ARTICLE, IS PUNISHABLE PURSUANT TO  SUCH  SECTION
ONLY  WHEN  AN  OVERT  ACT IN FURTHERANCE OF SUCH AGREEMENT IS COMMITTED
WITHIN THIS STATE.   UNDER SUCH CIRCUMSTANCES, IT IS  NO  DEFENSE  TO  A
PROSECUTION  FOR  OPERATING  AS A MAJOR DRUG TRAFFICKER THAT THE CONDUCT
WHICH IS THE OBJECTIVE OF SUCH AGREEMENT WOULD NOT  CONSTITUTE  A  CRIME
UNDER THE LAWS OF THE OTHER JURISDICTION IF PERFORMED THEREIN.
S 220.90 OPERATING AS A MAJOR DRUG TRAFFICKER; NO DEFENSE.
  1.  IT  IS  NO  DEFENSE TO A PROSECUTION FOR OPERATING AS A MAJOR DRUG
TRAFFICKER THAT MORE THAN ONE PERSON FUNCTIONED IN A  SUPERVISORY  POSI-
TION WITHIN OR WITH RESPECT TO THE CONTROLLED SUBSTANCE ORGANIZATION.
  2.  IT  IS  NO  DEFENSE TO A PROSECUTION FOR OPERATING AS A MAJOR DRUG
TRAFFICKER THAT, OWING TO CRIMINAL IRRESPONSIBILITY OR OTHER LEGAL INCA-
PACITY OR EXEMPTION, OR TO UNAWARENESS OF THE  CRIMINAL  NATURE  OF  THE
AGREEMENT OR TO UNAWARENESS OF THE CRIMINAL NATURE OF THE OBJECT CONDUCT
OR  OF  THE  DEFENDANT'S CRIMINAL PURPOSE OR TO OTHER FACTORS PRECLUDING
THE MENTAL STATE REQUIRED FOR THE COMMISSION OF  OPERATING  AS  A  MAJOR
DRUG TRAFFICKER, ONE OR MORE OF THE OTHER PERSONS COULD NOT BE GUILTY OF
OPERATING AS A MAJOR DRUG TRAFFICKER.
S 220.95 CRIMINAL USE OF A WEAPON IN A CONTROLLED SUBSTANCE OR MARIHUANA
           OFFENSE.
  A  PERSON  IS  GUILTY  OF  CRIMINAL  USE  OF  A WEAPON IN A CONTROLLED
SUBSTANCE OR MARIHUANA OFFENSE WHEN HE OR SHE:
  1. COMMITS THE CRIME OF CRIMINAL POSSESSION OF A CONTROLLED  SUBSTANCE
IN  THE  SEVENTH  DEGREE  AS  DEFINED IN SECTION 220.03 OF THIS ARTICLE,
CRIMINALLY USING DRUG PARAPHERNALIA IN THE SECOND DEGREE AS  DEFINED  IN
SECTION  220.50 OF THIS ARTICLE, CRIMINAL POSSESSION OF MARIHUANA IN THE
FIFTH DEGREE AS DEFINED IN SECTION 221.10 OF THIS CHAPTER AND/OR  CRIMI-
NAL  POSSESSION  OF MARIHUANA IN THE FOURTH DEGREE AS DEFINED IN SECTION
221.15 OF THIS CHAPTER AND, IN THE COURSE  OF  THE  COMMISSION  OF  SUCH
CRIME   OR   IMMEDIATE   FLIGHT   THEREFROM,  SUCH  PERSON  POSSESSES  A
MACHINE-GUN, FIREARM, RIFLE OR  SHOTGUN  IN  VIOLATION  OF  ARTICLE  TWO
HUNDRED SIXTY-FIVE OF THIS CHAPTER; OR
  2.  COMMITS  ANY  FELONY  DEFINED IN ARTICLE TWO HUNDRED TWENTY OR TWO
HUNDRED TWENTY-ONE OF THIS CHAPTER, CRIMINAL SALE OF  MARIHUANA  IN  THE
FIFTH  DEGREE  AS  DEFINED IN SECTION 221.35 OF THIS CHAPTER OR CRIMINAL
SALE OF MARIHUANA IN THE FOURTH DEGREE AS DEFINED IN SECTION  221.40  OF
THIS CHAPTER AND, IN THE COURSE OF THE COMMISSION OF SUCH CRIME OR IMME-
DIATE  FLIGHT THEREFROM, SUCH PERSON OR ANOTHER PARTICIPANT IN THE CRIME
USES, POSSESSES OR DISPLAYS WHAT APPEARS TO BE A  MACHINE-GUN,  FIREARM,
RIFLE OR SHOTGUN.
  CRIMINAL  USE  OF  A  WEAPON  IN  A  CONTROLLED SUBSTANCE OR MARIHUANA
OFFENSE IS A CLASS D FELONY.
  S 20. Paragraph (a) of subdivision 1 of section 460.10  of  the  penal
law,  as separately amended by chapters 312 and 472 of the laws of 2008,
is amended to read as follows:

S. 1576                            10

  (a) Any of the felonies set forth in this  chapter:  sections  120.05,
120.10  and 120.11 relating to assault; sections 125.10 to 125.27 relat-
ing to homicide; sections 130.25, 130.30 and 130.35  relating  to  rape;
sections 135.20 and 135.25 relating to kidnapping; section 135.35 relat-
ing  to labor trafficking; section 135.65 relating to coercion; sections
140.20, 140.25 and 140.30 relating to burglary; sections 145.05,  145.10
and  145.12  relating  to  criminal  mischief; article one hundred fifty
relating to arson; sections 155.30, 155.35, 155.40 and  155.42  relating
to grand larceny; sections 177.10, 177.15, 177.20 and 177.25 relating to
health  care  fraud;  article  one  hundred  sixty  relating to robbery;
sections  165.45,  165.50,  165.52  and  165.54  relating  to   criminal
possession  of  stolen  property; sections 165.72 and 165.73 relating to
trademark  counterfeiting;  sections  170.10,  170.15,  170.25,  170.30,
170.40,  170.65 and 170.70 relating to forgery; sections 175.10, 175.25,
175.35, 175.40 and 210.40 relating to false statements; sections 176.15,
176.20, 176.25 and 176.30 relating to insurance fraud;  sections  178.20
and  178.25  relating  to criminal diversion of prescription medications
and prescriptions; sections  180.03,  180.08,  180.15,  180.25,  180.40,
180.45,  200.00, 200.03, 200.04, 200.10, 200.11, 200.12, 200.20, 200.22,
200.25, 200.27, 215.00, 215.05 and 215.19 relating to bribery;  sections
187.10,  187.15,  187.20  and  187.25  relating  to residential mortgage
fraud, sections 190.40 and 190.42 relating to  criminal  usury;  section
190.65 relating to schemes to defraud; sections 205.60 and 205.65 relat-
ing to hindering prosecution; sections 210.10, 210.15, and 215.51 relat-
ing  to  perjury and contempt; section 215.40 relating to tampering with
physical evidence; sections  220.06,  220.09,  220.16,  220.18,  220.21,
220.31,  220.34,  220.39,  220.41, 220.43, 220.46, 220.55 [and], 220.60,
220.80 AND 220.95 relating to controlled substances; sections 225.10 and
225.20 relating to gambling; sections 230.25, 230.30, and 230.32  relat-
ing  to promoting prostitution; section 230.34 relating to sex traffick-
ing; sections 235.06, 235.07, 235.21 and 235.22 relating  to  obscenity;
sections 263.10 and 263.15 relating to promoting a sexual performance by
a child; sections 265.02, 265.03, 265.04, 265.11, 265.12, 265.13 and the
provisions  of  section  265.10  which  constitute  a felony relating to
firearms and other dangerous weapons; and  sections  265.14  and  265.16
relating  to  criminal  sale  of  a firearm; and section 275.10, 275.20,
275.30, or 275.40 relating  to  unauthorized  recordings;  and  sections
470.05, 470.10, 470.15 and 470.20 relating to money laundering; or
  S  21.  Paragraph  (a) of subdivision 7 of section 480.00 of the penal
law, as added by chapter 655 of the laws of 1990, is amended to read  as
follows:
  (a)  a  conviction  of  a  person  for  a violation of section 220.18,
220.21, 220.41, [or] 220.43, 220.80 OR 220.95 of this chapter, or  where
the  accusatory  instrument  charges  one  or  more  of  such  offenses,
conviction upon a plea of guilty to any of the felonies for  which  such
plea  is  otherwise  authorized  by  law or a conviction of a person for
conspiracy to commit a violation of section 220.18, 220.21, 220.41, [or]
220.43, 220.80 OR 220.95 of [the penal  law]  THIS  CHAPTER,  where  the
controlled substances which are the object of the conspiracy are located
in the real property which is the subject of the forfeiture action; or
  S 22. Paragraph (c) of subdivision 8 of section 700.05 of the criminal
procedure law, as amended by chapter 394 of the laws of 2005, is amended
to read as follows:
  (c)  Criminal  possession  of  a  controlled  substance in the seventh
degree  as  defined  in  section  220.03  of  the  penal  law,  criminal
possession  of  a controlled substance in the fifth degree as defined in

S. 1576                            11

section 220.06 of the penal law, criminal  possession  of  a  controlled
substance in the fourth degree as defined in section 220.09 of the penal
law,  criminal  possession of a controlled substance in the third degree
as  defined in section 220.16 of the penal law, criminal possession of a
controlled substance in the second degree as defined in  section  220.18
of  the  penal law, criminal possession of a controlled substance in the
first degree as defined in section 220.21 of  the  penal  law,  criminal
sale of a controlled substance in the fifth degree as defined in section
220.31  of the penal law, criminal sale of a controlled substance in the
fourth degree as defined in section 220.34 of the  penal  law,  criminal
sale of a controlled substance in the third degree as defined in section
220.39  of the penal law, criminal sale of a controlled substance in the
second degree as defined in section 220.41 of the  penal  law,  criminal
sale of a controlled substance in the first degree as defined in section
220.43  of  the penal law, criminally possessing a hypodermic instrument
as defined in section 220.45 of the penal law,  criminal  possession  of
methamphetamine  manufacturing  material in the second degree as defined
in section 220.70 of the penal law, criminal possession of  methampheta-
mine  manufacturing  material  in the first degree as defined in section
220.71 of the penal law, criminal possession of precursors of methamphe-
tamine as defined in section 220.72 of the penal law, unlawful  manufac-
ture of methamphetamine in the third degree as defined in section 220.73
of  the penal law, unlawful manufacture of methamphetamine in the second
degree as defined in section 220.74 of the penal law, unlawful  manufac-
ture of methamphetamine in the first degree as defined in section 220.75
of  the penal law, unlawful disposal of methamphetamine laboratory mate-
rial as defined in section 220.76 of the penal law, OPERATING AS A MAJOR
DRUG TRAFFICKER AS DEFINED IN SECTION 220.80 OF THE PENAL LAW,  CRIMINAL
USE  OF  A  WEAPON  IN  A  CONTROLLED  SUBSTANCE OR MARIHUANA OFFENSE AS
DEFINED IN SECTION 220.95 OF THE PENAL LAW, criminal possession of mari-
huana in the first degree as defined in section 221.30 of the penal law,
criminal sale of marihuana in the first degree  as  defined  in  section
221.55  of  the  penal  law,  promoting gambling in the second degree as
defined in section 225.05 of the penal law, promoting  gambling  in  the
first  degree  as defined in section 225.10 of the penal law, possession
of gambling records in the second degree as defined in section 225.15 of
the penal law, possession of gambling records in  the  first  degree  as
defined in section 225.20 of the penal law, and possession of a gambling
device as defined in section 225.30 of the penal law;
  S  23. Paragraph (i) of subdivision 1 of section 806 of the correction
law, as added by section 5 of part E of chapter 62 of the laws of  2003,
is amended to read as follows:
  (i)  the inmate has not been convicted previously of, nor is presently
serving a sentence imposed for a class  A-I  felony,  a  violent  felony
offense  as  defined  in section 70.02 of the penal law, manslaughter in
the second degree, vehicular manslaughter in the second degree,  vehicu-
lar  manslaughter in the first degree, criminally negligent homicide, an
offense defined in article one hundred thirty of the penal law,  incest,
[or]  an offense defined in article two hundred sixty-three of the penal
law, OR OPERATING AS A MAJOR DRUG TRAFFICKER,
  S 24. Paragraph (a) of subdivision 4-b of section 1310  of  the  civil
practice  law and rules, as added by chapter 655 of the laws of 1990, is
amended to read as follows:
  (a) a conviction of a  person  for  a  violation  of  section  220.18,
220.21, 220.41, [or] 220.43, 220.80 OR 220.95 of the penal law, or where
the  accusatory  instrument  charges  one  or  more  of  such  offenses,

S. 1576                            12

conviction upon a plea of guilty to any of the felonies for  which  such
plea  is  otherwise  authorized  by  law or a conviction of a person for
conspiracy to commit a violation of section 220.18, 220.21, 220.41, [or]
220.43,  220.80  OR  220.95  of  the  penal  law,  where  the controlled
substances which are the object of the conspiracy  are  located  in  the
real property which is the subject of the forfeiture action; or
  S  25.  Severability.  If  any clause, sentence, paragraph, section or
part of this act shall be adjudged by any court of  competent  jurisdic-
tion  to be invalid and after exhaustion of all further judicial review,
the judgment shall not affect, impair or invalidate the remainder there-
of, but shall be confined in its  operation  to  the  clause,  sentence,
paragraph,  section or part of this act directly involved in the contro-
versy in which the judgment shall have been rendered.
  S 26. This act shall  take  effect  on  the  first  of  November  next
succeeding  the date on which it shall have become a law and shall apply
to offenses committed on or after such date, provided that:
  (a) the amendments to subdivision 1 of section 70.00 of the penal  law
made  by  section two of this act shall be subject to the expiration and
reversion of such subdivision pursuant to subdivision d of section 74 of
chapter 3 of the laws of 1995, as  amended,  when  upon  such  date  the
provisions of section three of this act shall take effect;
  (b)  the amendments to paragraphs (b), (c) and (d) of subdivision 3 of
section 70.04 of the penal law made by section seven of this  act  shall
be  subject to the expiration and reversion of such subdivision pursuant
to subdivision d of section 74 of chapter 3 of  the  laws  of  1995,  as
amended, when upon such date the provisions of section eight of this act
shall take effect;
  (c)  the  amendments  to  paragraphs  (c)  and (d) of subdivision 6 of
section 70.06 of the penal law, made by section nine of this  act  shall
not  affect  the repeal of such subdivision pursuant to subdivision d of
section 74 of chapter 3 of the laws  of  1995,  as  amended,  and  shall
expire and be deemed repealed therewith;
  (d) the amendments to paragraph (i) of subdivision 1 of section 806 of
the  correction  law  made by section twenty-three of this act shall not
affect the repeal of such section pursuant to subdivision 6  of  section
76  of  chapter 435 of the laws of 1997, as amended, and shall be deemed
repealed therewith.

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