S T A T E   O F   N E W   Y O R K
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                                  5766

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                              March 6, 2013
                               ___________

Introduced  by M. of A. McKEVITT, GRAF, RAIA -- Multi-Sponsored by -- M.
  of A. HAWLEY -- read once and referred to the Committee on Codes

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

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

  Section  1. Section 265.09 of the penal law, as amended by chapter 650
of the laws of 1996 and subdivision 2 as amended by  chapter  1  of  the
laws of 2013, is amended to read as follows:
S 265.09 Criminal use of a firearm in the first degree.
  (1)  A  person  is  guilty  of  criminal use of a firearm in the first
degree when he OR SHE commits any class  B  violent  felony  offense  as
defined  in paragraph (a) of subdivision one of section 70.02 OR COMMITS
ANY DRUG RELATED FELONY OFFENSE AS DEFINED IN SECTIONS  220.31,  220.34,
220.39,  220.41, 220.43, 220.44 AND 220.48 OF THIS CHAPTER and he OR SHE
either:
  (a) possesses a deadly weapon, if the weapon is a loaded  OR  UNLOADED
weapon  from  which  a shot, readily capable of producing death or other
serious injury may be discharged; or
  (b) displays what appears to be a pistol,  revolver,  rifle,  shotgun,
machine gun or other firearm.
  Criminal use of a firearm in the first degree is a class B felony.
  (2)  Sentencing. (A) Notwithstanding any other provision of law to the
contrary, when a person is convicted of criminal use of a firearm in the
first degree as defined in subdivision one of this  section,  the  court
shall  impose  an additional consecutive sentence of [five] TEN years to
the sentence imposed on the underlying class B violent felony offense OR
DRUG RELATED FELONY OFFENSE where the person  convicted  of  such  crime
displays  a loaded OR UNLOADED weapon from which a shot, readily capable
of producing death or other serious injury may be discharged OR DISPLAYS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09482-01-3
              

A. 5766                             2

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