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

                                  5926

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              March 2, 2011
                               ___________

Introduced  by  M.  of  A. KAVANAGH, BING, COOK, JAFFEE, LAVINE, LIFTON,
  MAYERSOHN, RAMOS, ROBINSON -- Multi-Sponsored by -- M. of A. DINOWITZ,
  ENGLEBRIGHT, GLICK, GOTTFRIED, HOYT,  JOHNS,  MARKEY,  ORTIZ,  PAULIN,
  PEOPLES-STOKES, PERRY, PHEFFER, SCARBOROUGH, TOWNS, WEINSTEIN, WEISEN-
  BERG -- read once and referred to the Committee on Codes

AN  ACT  to  amend  the  penal law and the executive law, in relation to
  banning the sale, possession or use of 50-caliber weapons

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

  Section 1. Legislative findings and declaration. The legislature here-
by  finds  and  declares  that  50-caliber  or larger weapons having the
capacity for rapidly discharging ammunition have no acceptable  purpose.
The  legislature  additionally finds and declares that such weapons pose
such an imminent threat and danger to the safety  and  security  of  the
people  of this state that it is necessary to ban the possession and use
of such weapons.
  S 2. Subdivisions 8 and 9 of section  265.00  of  the  penal  law,  as
amended  by  chapter  189  of  the  laws of 2000, are amended to read as
follows:
  8. "Gunsmith" means any  person,  firm,  partnership,  corporation  or
company  who engages in the business of repairing, altering, assembling,
manufacturing,  cleaning,  polishing,  engraving  or  trueing,  or   who
performs  any mechanical operation on, any firearm, large capacity ammu-
nition feeding device, 50-CALIBER WEAPON or machine-gun.
  9. "Dealer in firearms" means any person,  firm,  partnership,  corpo-
ration  or  company  who engages in the business of purchasing, selling,
keeping for sale, loaning, leasing, or in any manner disposing  of,  any
assault  weapon,  large  capacity  ammunition feeding device, 50-CALIBER
WEAPON, pistol or revolver.
  S 3. Section 265.00 of the penal law is amended by adding a new subdi-
vision 24 to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01019-01-1
              

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  24. "50-CALIBER WEAPON" MEANS A RIFLE CAPABLE OF FIRING A  CENTER-FIRE
CARTRIDGE  IN 50-CALIBER OR LARGER, .50 BMG CALIBER OR LARGER, ANY OTHER
VARIANT OF 50-CALIBER OR LARGER, OR ANY OTHER METRIC EQUIVALENT OF  SUCH
CALIBER,  PROVIDED,  HOWEVER,  THAT NOTHING IN THIS SUBDIVISION SHALL BE
CONSTRUED  TO  INCLUDE ANY MUZZLE LOADING RIFLE OR SHOTGUN WITH A RIFLED
BORE.
  S 4. Subdivision 3 of section 265.02 of the penal law, as  amended  by
chapter 764 of the laws of 2005, is amended to read as follows:
  (3)  Such person knowingly possesses a machine-gun, A 50-CALIBER WEAP-
ON, firearm, rifle or shotgun which has been defaced for the purpose  of
concealment or prevention of the detection of a crime or misrepresenting
the  identity  of such machine-gun, 50-CALIBER WEAPON, firearm, rifle or
shotgun; or
  S 5. Section 265.02 of the penal law is amended by adding a new subdi-
vision 4 to read as follows:
  (4) SUCH PERSON POSSESSES ANY 50-CALIBER WEAPON; OR
  S 6. Section 265.03 of the penal law, as amended by chapter 742 of the
laws of 2006 and subdivisions 1 and 3 as amended by chapter 745  of  the
laws of 2006, is amended to read as follows:
S 265.03 Criminal possession of a weapon in the second degree.
  A  person  is  guilty of criminal possession of a weapon in the second
degree when SUCH PERSON:
  (1) [with intent to use the  same  unlawfully  against  another,  such
person:
  (a)] possesses a machine-gun; or
  [(b)]  (2)  possesses  a  50-CALIBER  WEAPON  OR A loaded firearm WITH
INTENT TO USE THE SAME UNLAWFULLY AGAINST ANOTHER; or
  [(c)] (3) possesses a disguised gun WITH INTENT TO USE THE SAME UNLAW-
FULLY AGAINST ANOTHER; or
  [(2) such person] (4) possesses five or more firearms; or
  [(3)] (5) such person possesses any loaded  firearm.  Such  possession
shall  not,  except  as  provided in subdivision one or seven of section
265.02 of this article, constitute a violation of  this  subdivision  if
such possession takes place in such person's home or place of business.
  Criminal  possession  of  a  weapon  in the second degree is a class C
felony.
  S 7. The penal law is amended by adding two new  sections  265.45  and
265.46 to read as follows:
S 265.45 CRIMINAL USE OF A 50-CALIBER WEAPON IN THE SECOND DEGREE.
  1.  A  PERSON  IS GUILTY OF CRIMINAL USE OF A 50-CALIBER WEAPON IN THE
SECOND DEGREE WHEN HE COMMITS ANY CLASS  C  VIOLENT  FELONY  OFFENSE  AS
DEFINED  IN  PARAGRAPH  (B)  OF SUBDIVISION ONE OF SECTION 70.02 OF THIS
CHAPTER AND HE USES A 50-CALIBER WEAPON, AS DEFINED IN SUBDIVISION TWEN-
TY-FOUR OF SECTION 265.00 OF THIS ARTICLE, IF THE 50-CALIBER WEAPON IS A
LOADED 50-CALIBER WEAPON FROM WHICH A SHOT, READILY CAPABLE OF PRODUCING
DEATH OR OTHER SERIOUS INJURY MAY BE DISCHARGED.
  2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHEN  A
PERSON IS CONVICTED OF CRIMINAL USE OF A 50-CALIBER WEAPON IN THE SECOND
DEGREE  AS  DEFINED  IN  SUBDIVISION ONE OF THIS SECTION THE COURT SHALL
IMPOSE AN ADDITIONAL CONSECUTIVE TERM OF FIVE YEARS TO THE MINIMUM  TERM
OF  THE  INDETERMINATE  SENTENCE  OR  TERM  OF  THE DETERMINATE SENTENCE
IMPOSED ON THE UNDERLYING CLASS C VIOLENT FELONY CONVICTION.    NOTWITH-
STANDING  ANY  OTHER  PROVISION OF LAW TO THE CONTRARY, THE AGGREGATE OF
THE FIVE YEAR CONSECUTIVE TERM IMPOSED PURSUANT TO THIS SUBDIVISION  AND
THE  MINIMUM TERM OF AN INDETERMINATE SENTENCE IMPOSED ON THE UNDERLYING
CLASS C VIOLENT FELONY CONVICTION SHALL  CONSTITUTE  THE  NEW  AGGREGATE

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MINIMUM TERM OF IMPRISONMENT, AND A DEFENDANT SUBJECT TO SUCH TERM SHALL
BE  REQUIRED TO SERVE THE ENTIRE AGGREGATE MINIMUM TERM AND SHALL NOT BE
ELIGIBLE FOR RELEASE ON PAROLE OR  OTHER  DISCRETIONARY  RELEASE  DURING
SUCH TERM.
S 265.46 CRIMINAL USE OF A 50-CALIBER WEAPON IN THE FIRST DEGREE.
  1.  A  PERSON  IS GUILTY OF CRIMINAL USE OF A 50-CALIBER WEAPON IN THE
FIRST DEGREE WHEN HE COMMITS ANY CLASS  A  FELONY  OFFENSE  CONSTITUTING
MURDER,  KIDNAPPING, ARSON, CONSPIRACY OR SALE OF A CONTROLLED SUBSTANCE
OR ATTEMPTS TO COMMIT ANY SUCH CLASS A FELONY WHERE  SUCH  ATTEMPT  ALSO
CONSTITUTES  A  CLASS A FELONY, OR ANY CLASS B VIOLENT FELONY OFFENSE AS
DEFINED IN PARAGRAPH (A) OF SUBDIVISION ONE OF  SECTION  70.02  OF  THIS
CHAPTER AND HE USES A 50-CALIBER WEAPON, AS DEFINED IN SUBDIVISION TWEN-
TY-FOUR OF SECTION 265.00 OF THIS ARTICLE, IF THE 50-CALIBER WEAPON IS A
LOADED 50-CALIBER WEAPON FROM WHICH A SHOT, READILY CAPABLE OF PRODUCING
DEATH OR OTHER SERIOUS INJURY MAY BE DISCHARGED.
  2.  NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, WHEN A
PERSON IS CONVICTED OF CRIMINAL USE OF A 50-CALIBER WEAPON IN THE  FIRST
DEGREE  AS  DEFINED  IN  SUBDIVISION ONE OF THIS SECTION THE COURT SHALL
IMPOSE AN ADDITIONAL CONSECUTIVE TERM OF TEN YEARS TO THE  MINIMUM  TERM
OF  THE  INDETERMINATE  SENTENCE  OR  TERM  OF  THE DETERMINATE SENTENCE
IMPOSED ON THE UNDERLYING CLASS A OR CLASS B VIOLENT FELONY  CONVICTION.
NOTWITHSTANDING  ANY  OTHER PROVISION OF LAW TO THE CONTRARY, THE AGGRE-
GATE OF THE TEN YEAR CONSECUTIVE TERM IMPOSED PURSUANT TO THIS  SUBDIVI-
SION  AND  THE  MINIMUM TERM OF AN INDETERMINATE SENTENCE IMPOSED ON THE
UNDERLYING CLASS A OR CLASS B VIOLENT FELONY CONVICTION SHALL CONSTITUTE
THE NEW AGGREGATE MINIMUM TERM OF IMPRISONMENT, AND A DEFENDANT  SUBJECT
TO  SUCH  TERM  SHALL  BE REQUIRED TO SERVE THE ENTIRE AGGREGATE MINIMUM
TERM AND SHALL NOT BE ELIGIBLE FOR RELEASE ON PAROLE  OR  OTHER  DISCRE-
TIONARY RELEASE DURING SUCH TERM.
  S  8.  Subdivision  2  of section 265.08 of the penal law, as added by
chapter 233 of the laws of 1980, is amended to read as follows:
  (2) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
50-CALIBER WEAPON, machine gun or other firearm.
  S  9.  Paragraph  (b)  of subdivision 1 of section 265.09 of the penal
law, as amended by chapter 650 of the laws of 1996, is amended  to  read
as follows:
  (b)  displays  what  appears to be a pistol, revolver, rifle, shotgun,
50-CALIBER WEAPON, machine gun or other firearm.
  S 10. Subdivisions 2, 3 and 6 of section  265.10  of  the  penal  law,
subdivision 2 as amended by chapter 257 of the laws of 2008 and subdivi-
sions 3 and 6 as amended by chapter 189 of the laws of 2000, are amended
to read as follows:
  2.  Any  person  who  transports  or ships any machine-gun, 50-CALIBER
WEAPON, firearm silencer, assault weapon or  large  capacity  ammunition
feeding  device or disguised gun, or who transports or ships as merchan-
dise five or more firearms, is guilty of a class D  felony.  Any  person
who  transports  or  ships  as  merchandise  any  firearm, other than an
assault weapon, switchblade knife, gravity knife, pilum ballistic knife,
billy, blackjack, bludgeon, plastic knuckles, metal  knuckles,  Kung  Fu
star, chuka stick, sandbag or slungshot is guilty of a class A misdemea-
nor.
  3.  Any  person who disposes of any machine-gun, assault weapon, large
capacity ammunition feeding device, 50-CALIBER WEAPON or firearm silenc-
er is guilty of a  class  D  felony.  Any  person  who  knowingly  buys,
receives,  disposes  of,  or  conceals a machine-gun, 50-CALIBER WEAPON,
firearm, large capacity ammunition  feeding  device,  rifle  or  shotgun

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which  has  been defaced for the purpose of concealment or prevention of
the detection of  a  crime  or  misrepresenting  the  identity  of  such
machine-gun, 50-CALIBER WEAPON, firearm, large capacity ammunition feed-
ing device, rifle or shotgun is guilty of a class D felony.
  6.  Any  person  who  wilfully defaces any machine-gun, large capacity
ammunition feeding device, 50-CALIBER WEAPON or firearm is guilty  of  a
class D felony.
  S  11. Subdivisions 1 and 5 of section 265.15 of the penal law, subdi-
vision 5 as amended by chapter 695 of the laws of 1987, are  amended  to
read as follows:
  1.  The  presence  in  any room, dwelling, structure or vehicle of any
machine-gun OR 50-CALIBER WEAPON is presumptive evidence of its unlawful
possession by all persons occupying the place where such machine-gun  OR
50-CALIBER WEAPON is found.
  5.  The  possession by any person of a defaced machine-gun, 50-CALIBER
WEAPON, firearm, rifle   or shotgun is presumptive  evidence  that  such
person defaced the same.
  S 12. Paragraph 2 of subdivision a of section 265.20 of the penal law,
as  amended  by  chapter  189 of the laws of 2000, is amended to read as
follows:
  2. Possession of a  machine-gun,  large  capacity  ammunition  feeding
device,  50-CALIBER  WEAPON,  firearm, switchblade knife, gravity knife,
pilum ballistic knife, billy or blackjack by a  warden,  superintendent,
headkeeper  or deputy of a state prison, penitentiary, workhouse, county
jail or other institution for the  detention  of  persons  convicted  or
accused  of crime or detained as witnesses in criminal cases, in pursuit
of official duty or when duly  authorized  by  regulation  or  order  to
possess the same.
  S 13. Paragraph 8 of subdivision a of section 265.20 of the penal law,
as  amended  by  chapter  61  of the laws of 2010, is amended to read as
follows:
  8. The manufacturer of machine-guns, firearm silencers, assault  weap-
ons,  large  capacity  ammunition  feeding  devices, 50-CALIBER WEAPONS,
disguised guns, pilum ballistic knives, switchblade or  gravity  knives,
billies  or  blackjacks  as merchandise, or as a transferee recipient of
the same for repair, lawful distribution or  research  and  development,
and  the disposal and shipment thereof direct to a regularly constituted
or appointed state or municipal police department, sheriff, policeman or
other peace officer, or to  a  state  prison,  penitentiary,  workhouse,
county  jail or other institution for the detention of persons convicted
or accused of crime or held as witnesses in criminal cases,  or  to  the
military  service  of  this  state  or  of the United States; or for the
repair and return of the same to the lawful possessor  or  for  research
and development.
  S  14.  Section  265.20  of  the  penal law is amended by adding a new
subdivision e to read as follows:
  E. THE TERMS "PISTOL," "REVOLVER," "RIFLE," AND "SHOTGUN" AS  USED  IN
PARAGRAPHS  THREE  THROUGH FIVE, SEVEN THROUGH SEVEN-B, TWELVE, THIRTEEN
AND THIRTEEN-A OF SUBDIVISION A OF THIS  SECTION  SHALL  NOT  INCLUDE  A
50-CALIBER  WEAPON  AS  DEFINED  IN  SUBDIVISION  TWENTY-FOUR OF SECTION
265.00 OF THIS ARTICLE.
  S 15. Section 265.11 of the penal law, as amended by  chapter  764  of
the laws of 2005, is amended to read as follows:
S 265.11 Criminal  sale  of  a firearm OR 50-CALIBER WEAPON in the third
           degree.

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  A person is guilty of criminal sale of a firearm OR 50-CALIBER  WEAPON
in  the  third degree when such person is not authorized pursuant to law
to possess a firearm OR 50-CALIBER WEAPON  and  such  person  unlawfully
either:
  (1)  sells,  exchanges,  gives  or  disposes  of a firearm [or], large
capacity ammunition feeding  device  OR  50-CALIBER  WEAPON  to  another
person; or
  (2)  possesses  a firearm OR 50-CALIBER WEAPON with the intent to sell
it.
  Criminal sale of a firearm OR 50-CALIBER WEAPON in the third degree is
a class D felony.
  S 16. Section 265.12 of the penal law, as amended by  chapter  764  of
the laws of 2005, is amended to read as follows:
S  265.12  Criminal sale of a firearm OR 50-CALIBER WEAPON in the second
           degree.
  A person is guilty of criminal sale of a firearm OR 50-CALIBER  WEAPON
in the second degree when such person:
  (1)  unlawfully sells, exchanges, gives or disposes of to another five
or more firearms OR 50-CALIBER WEAPONS; or
  (2) unlawfully sells, exchanges,  gives  or  disposes  of  to  another
person or persons a total of five or more firearms OR 50-CALIBER WEAPONS
in a period of not more than one year.
  Criminal  sale  of a firearm OR 50-CALIBER WEAPON in the second degree
is a class C felony.
  S 17. Section 265.14 of the penal law, as added by chapter 175 of  the
laws  of 1991 and the closing paragraph as amended by chapter 654 of the
laws of 1998, is amended to read as follows:
S 265.14 Criminal sale of a firearm OR 50-CALIBER WEAPON with the aid of
           a minor.
  A person over the age of eighteen years of age is guilty  of  criminal
sale  of a [weapon] FIREARM OR 50-CALIBER WEAPON with the aid of a minor
when a person under sixteen years of age knowingly and unlawfully sells,
exchanges, gives or disposes  of  a  firearm  OR  50-CALIBER  WEAPON  in
violation  of  this  article,  and  such person over the age of eighteen
years of age, acting  with  the  mental  culpability  required  for  the
commission  thereof,  solicits, requests, commands, importunes or inten-
tionally aids such person under sixteen years of age to engage  in  such
conduct.
  Criminal  sale  of  a  firearm  OR 50-CALIBER WEAPON with the aid of a
minor is a class C felony.
  S 18. Section 265.13 of the penal law, as amended by  chapter  764  of
the laws of 2005, is amended to read as follows:
S  265.13  Criminal  sale of a firearm OR 50-CALIBER WEAPON in the first
           degree.
  A person is guilty of criminal sale of a firearm OR 50-CALIBER  WEAPON
in the first degree when such person:
  (1)  unlawfully  sells, exchanges, gives or disposes of to another ten
or more firearms OR 50-CALIBER WEAPONS; or
  (2) unlawfully sells, exchanges,  gives  or  disposes  of  to  another
person  or persons a total of ten or more firearms OR 50-CALIBER WEAPONS
in a period of not more than one year.
  Criminal sale of a firearm OR 50-CALIBER WEAPON in the first degree is
a class B felony.
  S 19. Section 265.16 of the penal law, as added by chapter 600 of  the
laws  of 1992 and the closing paragraph as amended by chapter 654 of the
laws of 1998, is amended to read as follows:

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S 265.16 Criminal sale of a firearm OR 50-CALIBER WEAPON to a minor.
  A  person is guilty of criminal sale of a firearm OR 50-CALIBER WEAPON
to a minor when he is not  authorized  pursuant  to  law  to  possess  a
firearm  OR  50-CALIBER WEAPON and he unlawfully sells, exchanges, gives
or disposes of a firearm OR 50-CALIBER WEAPON to another person  who  is
or  reasonably  appears to be less than nineteen years of age who is not
licensed pursuant to law to possess a firearm OR 50-CALIBER WEAPON.
  Criminal sale of a firearm OR 50-CALIBER WEAPON to a minor is a  class
C felony.
  S  20.  The opening paragraph of subdivision 1 of section 55.05 of the
penal law, as amended by chapter 276 of the laws of 1973, is amended  to
read as follows:
  [Felonies]  EXCEPT  FOR  THE  FELONIES  DEFINED IN SECTIONS 265.45 AND
265.46 OF THIS CHAPTER, FELONIES are  classified,  for  the  purpose  of
sentence, into five categories as follows:
  S  21.  Paragraph  (a)  of subdivision 1 of section 55.10 of the penal
law, as amended by chapter 276 of the laws of 1973, is amended  to  read
as follows:
  (a)  [The]  EXCEPT  FOR  THE  FELONIES  DEFINED IN SECTIONS 265.45 AND
265.46 OF THIS CHAPTER, THE particular classification or  subclassifica-
tion  of  each felony defined in this chapter is expressly designated in
the section or article defining it.
  S 22. The executive law is amended by adding a new section 231 to read
as follows:
  S 231. COMPLIANCE WITH THE BAN ON  THE  SALE,  POSSESSION  OR  USE  OF
50-CALIBER  WEAPONS.  1.  FROM WITHIN AMOUNTS APPROPRIATED THEREFOR, THE
DIVISION OF STATE POLICE SHALL TAKE  SUCH  ACTION  AS  IS  NECESSARY  TO
IMPLEMENT  A  PROGRAM WHEREBY PERSONS, INCLUDING DEALERS OF FIREARMS, IN
LAWFUL POSSESSION  OF  50-CALIBER  WEAPONS  MAY  BRING  THEMSELVES  INTO
COMPLIANCE  WITH  THE  PROVISIONS  OF THE PENAL LAW WHICH BANS THE SALE,
POSSESSION OR USE OF SUCH WEAPONS.
  2. WITHIN THIRTY DAYS OF THE  EFFECTIVE  DATE  OF  THIS  SECTION,  ANY
LICENSED  FIREARM DEALER WHO HAS IN HIS OR HER POSSESSION A NEW 50-CALI-
BER WEAPON SHALL BE ENTITLED TO RETURN SUCH WEAPON TO THE DISTRIBUTOR OR
MANUFACTURER, AND SHALL BE ENTITLED TO A FULL REFUND, OR CREDIT,  IN  AN
AMOUNT  EQUAL  TO THE PURCHASE PRICE OF SUCH WEAPON. IN ANY CASE WHERE A
DISTRIBUTOR OR MANUFACTURER FAILS OR REFUSES TO SO REFUND OR CREDIT SUCH
DEALER, THE DEALER SHALL NOTIFY THE DIVISION OF  STATE  POLICE,  AND  IT
SHALL  IMMEDIATELY  NOTIFY  THE  ATTORNEY  GENERAL SO THAT HE OR SHE MAY
INTERCEDE AND TAKE SUCH ACTIONS ON BEHALF OF THE DEALER TO  SECURE  SUCH
REFUND OR CREDIT.
  3.  WITHIN  THIRTY  DAYS  OF  THE  EFFECTIVE DATE OF THIS SECTION, ANY
PERSON, INCLUDING A LICENSED FIREARM DEALER, WHO HAS IN HIS OR HER LEGAL
POSSESSION A USED 50-CALIBER WEAPON SHALL PERSONALLY DELIVER SUCH WEAPON
TO THE DIVISION OF STATE POLICE, AND  UPON  TRANSFERRING  OWNERSHIP  AND
POSSESSION  TO  A  DULY DESIGNATED OFFICER THEREOF, SHALL BE ENTITLED TO
RECEIVE PAYMENT IN AN AMOUNT EQUAL TO THE  FAIR  MARKET  VALUE  OF  SUCH
WEAPON, BUT NOT TO EXCEED EIGHT THOUSAND FIVE HUNDRED DOLLARS.
  4.  THE  DIVISION  OF STATE POLICE SHALL TAKE SUCH ACTION, INCLUDING A
PUBLIC CAMPAIGN USING THE PRINT MEDIA, TELEVISION, RADIO OR OTHER  MEANS
TO  NOTIFY  PERSONS  OF THE EXISTENCE OF THE PROGRAM ESTABLISHED IN THIS
SECTION.
  S 23. This act shall take effect immediately; provided, however,  that
sections  one  through  twenty-one  of this act shall take effect on the
thirtieth day after this act shall have become a law.