S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    810
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                              January 5, 2017
                                ___________
 
 Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the penal law, the  vehicle  and  traffic  law  and  the
   general  business law, in relation to criminal use of a firearm in the
   first degree and to repeal certain provisions of the penal law  relat-
   ing thereto

   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, subdivision 2 as amended by chapter 1 of the laws
 of 2013, is amended to read as follows:
 § 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] and he  OR
 SHE either:
   (a)  possesses  a deadly weapon, if the weapon is a loaded 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.  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  years  to
 the  sentence imposed on the underlying [class B violent] felony offense
 where the person convicted of such crime displays a loaded  weapon  from
 which a shot, readily capable of producing death or other serious injury
 may  be  discharged[,]  OR WHAT APPEARS TO BE A PISTOL, REVOLVER, RIFLE,
 SHOTGUN, MACHINE GUN OR OTHER FIREARM in furtherance of  the  commission
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05051-01-7

 S. 810                              2
 
 of  such  crime,  provided, however, that such additional sentence shall
 not be imposed if the court, having regard to  the  nature  and  circum-
 stances  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.  Notwithstanding 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 the [indeterminate] sentence imposed
 on the underlying [class B violent]  felony  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 weapon  from  which  a  shot,
 readily  capable  of  producing  death  or  other  serious injury may be
 discharged[,] OR 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 another pursuant to  section  20.00  of  this
 chapter.
   § 2. Section 265.08 of the penal law is REPEALED.
   §  3.  Paragraphs (a) and (b) of subdivision 1 of section 70.02 of the
 penal law, paragraph (a) as amended by chapter 368 of the laws of  2015,
 and  paragraph  (b)  as  amended  by  chapter 1 of the laws of 2013, are
 amended to read as follows:
   (a) Class B violent felony offenses: an attempt to  commit  the  class
 A-I  felonies  of  murder  in  the  second  degree as defined in section
 125.25, kidnapping in the first degree as defined in section 135.25, and
 arson in the first degree as defined in section 150.20; manslaughter  in
 the  first  degree as defined in section 125.20, aggravated manslaughter
 in the first degree as defined in section  125.22,  rape  in  the  first
 degree  as  defined  in section 130.35, criminal sexual act in the first
 degree as defined in section 130.50,  aggravated  sexual  abuse  in  the
 first  degree  as  defined  in  section 130.70, course of sexual conduct
 against a child in the  first  degree  as  defined  in  section  130.75;
 assault  in the first degree as defined in section 120.10, kidnapping in
 the second degree as defined in section 135.20, burglary  in  the  first
 degree  as  defined  in  section  140.30,  arson in the second degree as
 defined in section 150.15, robbery in the first  degree  as  defined  in
 section  160.15, sex trafficking as defined in paragraphs (a) and (b) of
 subdivision five of section  230.34,  incest  in  the  first  degree  as
 defined  in section 255.27, criminal possession of a weapon in the first
 degree as defined in section 265.04, criminal use of a firearm  [in  the
 first  degree]  as defined in section 265.09, criminal sale of a firearm
 in the first degree as defined in  section  265.13,  aggravated  assault
 upon  a  police officer or a peace officer as defined in section 120.11,
 gang assault in the first degree as defined in  section  120.07,  intim-
 idating  a  victim  or witness in the first degree as defined in section
 215.17, hindering prosecution  of  terrorism  in  the  first  degree  as
 defined  in  section 490.35, criminal possession of a chemical weapon or
 biological weapon in the second degree as defined in section 490.40, and
 criminal use of a chemical weapon or  biological  weapon  in  the  third
 degree as defined in section 490.47.
   (b)  Class  C violent felony offenses: an attempt to commit any of the
 class B felonies set forth in paragraph (a) of this subdivision;  aggra-
 vated criminally negligent homicide as defined in section 125.11, aggra-

 S. 810                              3
 
 vated  manslaughter  in  the second degree as defined in section 125.21,
 aggravated sexual abuse in the  second  degree  as  defined  in  section
 130.67, assault on a peace officer, police officer, fireman or emergency
 medical services professional as defined in section 120.08, assault on a
 judge as defined in section 120.09, gang assault in the second degree as
 defined  in section 120.06, strangulation in the first degree as defined
 in section 121.13, burglary in the second degree as defined  in  section
 140.25, robbery in the second degree as defined in section 160.10, crim-
 inal  possession  of a weapon in the second degree as defined in section
 265.03, [criminal use of a firearm in the second degree  as  defined  in
 section  265.08,]  criminal  sale  of  a firearm in the second degree as
 defined in section 265.12, criminal sale of a firearm with the aid of  a
 minor  as defined in section 265.14, aggravated criminal possession of a
 weapon as defined in section 265.19, soliciting or providing support for
 an act of terrorism in the first degree as defined  in  section  490.15,
 hindering  prosecution  of  terrorism in the second degree as defined in
 section 490.30, and criminal possession of a chemical weapon or  biolog-
 ical weapon in the third degree as defined in section 490.37.
   §  4.  Paragraph (c) of subdivision 4 of section 509-cc of the vehicle
 and traffic law, as amended by chapter 368  of  the  laws  of  2015,  is
 amended to read as follows:
   (c)  The  offenses referred to in subparagraph (i) of paragraph (b) of
 subdivision one and subparagraph (i) of paragraph (c) of subdivision two
 of this section that result in disqualification for  a  period  of  five
 years  shall include a conviction under sections 100.10, 105.13, 115.05,
 120.03,  120.04,  120.04-a,  120.05,  120.10,  120.25,  121.12,  121.13,
 125.40,  125.45, 130.20, 130.25, 130.52, 130.55, 135.10, 135.55, 140.17,
 140.25, 140.30, 145.12, 150.10, 150.15, 160.05, 160.10, 220.06,  220.09,
 220.16,  220.31, 220.34, 220.60, 220.65, 221.30, 221.50, 221.55, 230.00,
 230.05, 230.06, 230.11, 230.12, 230.13, 230.19, 230.20, 235.05,  235.06,
 235.07,  235.21,  240.06,  245.00,  260.10,  subdivision  two of section
 260.20 and sections 260.25, 265.02, 265.03,  [265.08,]  265.09,  265.10,
 265.12, 265.35 of the penal law or an attempt to commit any of the afor-
 esaid  offenses  under  section  110.00 of the penal law, or any similar
 offenses committed under a former section  of  the  penal  law,  or  any
 offenses  committed  under a former section of the penal law which would
 constitute violations of the aforesaid sections of the penal law, or any
 offenses committed outside this state which would constitute  violations
 of the aforesaid sections of the penal law.
   §  5. The opening paragraph of paragraph f of subdivision 1 of section
 410 of the general business law, as amended by chapter 80 of the laws of
 2015, is amended to read as follows:
   Conviction of any of the following crimes subsequent to  the  issuance
 of a license or registration pursuant to this article: fraud pursuant to
 sections  170.10,  170.15,  176.15,  176.20,  176.25, 176.30 and 190.65;
 falsifying business records pursuant to section  175.10;  grand  larceny
 pursuant  to  article  155; bribery pursuant to sections 180.03, 180.08,
 180.15, 180.25, 200.00, 200.03, 200.04, 200.10, 200.11, 200.12,  200.45,
 200.50;  perjury  pursuant  to  sections 210.10, 210.15, 210.40; assault
 pursuant to sections 120.05, 120.10, 120.11, 120.12; robbery pursuant to
 article  160;  homicide  pursuant  to  sections   125.25   and   125.27;
 manslaughter  pursuant  to  sections  125.15  and 125.20; kidnapping and
 unlawful imprisonment pursuant to sections 135.10,  135.20  and  135.25;
 unlawful  weapons  possession  pursuant  to  sections 265.02, 265.03 and
 265.04; criminal use of a [weapon] FIREARM pursuant to [sections  265.08
 and]  SECTION  265.09;  criminal  sale of a [weapon] FIREARM pursuant to

 S. 810                              4
 
 sections 265.11 and 265.12; compelling prostitution pursuant to  section
 230.33;  sex  trafficking  pursuant  to section 230.34; and sex offenses
 pursuant to article 130 of the penal law. Provided,  however,  that  for
 the  purposes of this article, none of the following shall be considered
 criminal convictions or reported as such: (i) a conviction for which  an
 executive  pardon  has been issued pursuant to the executive law; (ii) a
 conviction which has been vacated and replaced by  a  youthful  offender
 finding  pursuant to article seven hundred twenty of the criminal proce-
 dure law, or the applicable provisions of law of any other jurisdiction;
 or (iii) a conviction the records of which have been expunged or  sealed
 pursuant  to  the  applicable provisions of the laws of this state or of
 any other jurisdiction; and (iv) a conviction for which  other  evidence
 of successful rehabilitation to remove the disability has been issued.
   § 6. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law.