S T A T E O F N E W Y O R K
________________________________________________________________________
2028
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sen. SQUADRON -- read twice and ordered printed, and when
printed to be committed 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:
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
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03114-01-3
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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 OR SHE COMMITS ANY CLASS C VIOLENT FELONY OFFENSE
AS DEFINED IN PARAGRAPH (B) OF SUBDIVISION ONE OF SECTION 70.02 OF THIS
CHAPTER AND HE OR SHE USES A 50-CALIBER WEAPON, AS DEFINED IN SUBDIVI-
SION TWENTY-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
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
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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 OR SHE COMMITS ANY CLASS A FELONY OFFENSE CONSTI-
TUTING 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 OR SHE USES A 50-CALIBER WEAPON, AS DEFINED IN
SUBDIVISION TWENTY-FOUR OF SECTION 265.00 OF THIS ARTICLE, IF THE
50-CALIBER WEAPON IS A LOADED 50-CALIBER WEAPON FROM WHICH A SHOT, READ-
ILY 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
which has been defaced for the purpose of concealment or prevention of
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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.
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
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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:
S 265.16 Criminal sale of a firearm OR 50-CALIBER WEAPON to a minor.
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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.