NY State Senate Bill 2023-S9751

Senate Bill S9751

2023-2024 Legislative Session

Requires the national instant criminal background check system issue a response before a firearm can be sold or transferred

download bill text pdf

Current 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
May 28, 2024	referred to codes

2023-S9751 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Penal Law
Laws Affected:: Amd §§400.00, 400.20 & 400.06, Pen L; amd §228, Exec L; amd §§896, 897 & 898, Gen Bus L

2023-S9751 (ACTIVE) - Summary

Requires the national instant criminal background check system issue a response before a firearm can be sold or transferred; expands the type of firearms subject to a background check.

2023-S9751 (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S9751

SPONSOR: RYAN
 
TITLE OF BILL:

An act to amend the penal law, the executive law and the general busi-
ness law, in relation to background checks conducted by the division of
state police

 
PURPOSE:

To amend the Penal Law, Executive Law, and General Business Law to clar-
ify that the Division of State Police will serve as the point of contact
for all background checks involving the transfer of firearms, shotguns,
rifles, and antique firearms, and to ensure that guns are only trans-
ferred to a purchaser who has passed a background check.

 
SUMMARY OF PROVISIONS:


Sections 1 and 2 of this bill would amend Penal Law §§ 400.00(12) and
400.20 to require that transfers be completed only if a proceed response

has been received from the backdrop check system.

Section 3 of this bill would amend Penal Law § 400.06(1) to clarify that
the Division of State Police is designated as the point of contact for
rifle, shotgun, and antique firearm background checks.

Sections 4, 5, and 6 of this bill would amend Executive Law § 228 to
clarify that the Division of State Police is designated as the point of
contact for rifle, shotgun, and antique firearm background checks.

Sections 7, 8, and 9 of this bill would amend General Business Law §§
896, 897, and 898 to clarify that the Division of State Police is desig-
nated as the point of contact for rifle, shotgun, and antique firearm
background checks, and to require that firearm transfers be completed
only if a proceed response has been received from the background check
system.

Section 10 defines the effective date, which is immediately upon sign-
ing.

 
EXISTING LAW:

Penal Law § 400.06, Executive. Law § 228, and General Business Law §§
896 and 898 currently designate the Division of State Police as the
point of contact for "firearm" background cheeks. Additionally, current
law provides that a firearm can be delivered to a purchaser while a
background check remain' s open if thirty days have elapsed since the
check was initiated

 
LEGISLATIVE HISTORY:

None.

 
STATEMENT IN SUPPORT:

This bill would amend the Penal Law, Executive Law, and General Business
Law to clarify that the Division of State Police will serve as the point
of contact for all background checks involving the transfer of firearms,
shotguns, rifles, antique firearms, and any other items which require a
background check under 18§ 922. Currently, these sections of law desig-
nate the Division of State Police as the point of contact for "firearm"
background checks, which could be interpreted to exclude rifles, shot-
guns, antique firearms, or frames/receivers, since these items are
"firearms" for federal law purposes but not for state law purposes.
This bill will legislatively clarify the full scope of the State Police
background check system.

Additionally, this bill would amend Penal Law §§ 400.00(12) and 400.20
and General Business Law §§ 897 and 898 to ensure that guns are only
transferred to a purchaser who has affirmatively passed a background
check. Under federal law, a firearm can be delivered to a purchaser
while a NICS check remains open if three business days have elapsed
since the check was initiated. In 2019, New York expanded this time
period to 30 days for guns sold within New York State. Accordingly, as
the State's designated NICS Point of Contact, the Division of State
Police currently has 30 days to either approve or deny background check
transactions for New York gun sales, and if the decision cannot be
reached within 30 days the gun can be delivered by the dealer without
receiving a "proceed" response. As a result, guns may be transferred to
individuals who are subsequently identified as prohibited persons upon
completing further research and investigation. In some instances, to
reach a background check decision it is necessary to obtain historical
records from courts and police agencies within and outside of New York,
and the delay involved in receiving these records from various courts
and agencies creates the risk that proper decisions cannot be ma de
within the 30-day limit This bill would require an affirmative "proceed"
response prior to delivering a gun, thereby ensuring that guns are not
delivered to persons who would ultimately fail the background check upon
further review.

 
BUDGET IMPLICATIONS:

None known.

2023-S9751 (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9751
 
                             I N  S E N A T E
 
                               May 28, 2024
                                ___________
 
 Introduced  by Sen. RYAN -- (at request of the Division of State Police)
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Codes
 
 AN ACT to amend the penal law, the executive law and the  general  busi-
   ness  law,  in relation to background checks conducted by the division
   of state police

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subdivision  12  of  section  400.00 of the penal law, as
 amended by chapter 207 of the laws  of  2022,  is  amended  to  read  as
 follows:
   12. Records required of gunsmiths and dealers in firearms. In addition
 to  the  requirements set forth in article thirty-nine-BB of the general
 business law, any person licensed as  gunsmith  or  dealer  in  firearms
 shall  keep a record book approved as to form, except in the city of New
 York, by the superintendent of state police. In the record book shall be
 entered at the time of every transaction involving a firearm  the  date,
 name, age, occupation and residence of any person from whom a firearm is
 received  or  to  whom  a  firearm  is delivered, and the calibre, make,
 model, manufacturer's name and serial number,  or  if  none,  any  other
 distinguishing  number  or  identification  mark on such firearm. Before
 delivering a firearm to any person, the licensee shall  require  him  to
 produce  either  a  license valid under this section to carry or possess
 the same, or proof of lawful authority as an exempt person  pursuant  to
 section  265.20  of  this  chapter and [either (a)] the National Instant
 Criminal Background Check System (NICS) or  its  successor  [has]  SHALL
 HAVE  issued a "proceed" response to the licensee[, or (b) thirty calen-
 dar days have elapsed since the date  the  licensee  contacted  NICS  to
 initiate  a  national instant criminal background check and NICS has not
 notified the licensee that the transfer of the firearm  to  such  person
 should  be  denied]. In addition, before delivering a firearm to a peace
 officer, the licensee shall verify that person's status as a peace offi-
 cer with the division of state police. After completing  the  foregoing,
 the  licensee  shall  remove and retain the attached coupon and enter in
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD14580-01-4
 S. 9751                             2
 
 the record book the date of such license, number, if any,  and  name  of
 the  licensing  officer, in the case of the holder of a license to carry
 or possess, or the shield  or  other  number,  if  any,  assignment  and
 department,  unit  or  agency,  in  the  case  of  an exempt person. The
 original transaction report shall be forwarded to the division of  state
 police  within  ten  days  of  delivering a firearm to any person, and a
 duplicate copy shall be kept by  the  licensee.  The  superintendent  of
 state police may designate that such record shall be completed and tran-
 smitted in electronic form. A dealer may be granted a waiver from trans-
 mitting such records in electronic form if the superintendent determines
 that  such dealer is incapable of such transmission due to technological
 limitations that are not reasonably within the control of the dealer, or
 other exceptional circumstances demonstrated by the dealer, pursuant  to
 a process established in regulation, and at the discretion of the super-
 intendent.   Records assembled or collected for purposes of inclusion in
 the database created pursuant to section 400.02 of  this  article  shall
 not be subject to disclosure pursuant to article six of the public offi-
 cers  law. The record book shall be maintained on the premises mentioned
 and described in the license and shall be open at all  reasonable  hours
 for  inspection  by  any  peace  officer, acting pursuant to his special
 duties, or police officer. In the event of cancellation or revocation of
 the license for gunsmith or dealer in  firearms,  or  discontinuance  of
 business  by  a  licensee, such record book shall be immediately surren-
 dered to the licensing officer in the city of New York, and in the coun-
 ties of Nassau and Suffolk, and elsewhere in the state to the  executive
 department, division of state police.
   §  2.  Section 400.20 of the penal law, as added by chapter 129 of the
 laws of 2019, is amended to read as follows:
 § 400.20 Waiting period in connection with the sale  or  transfer  of  a
            rifle or shotgun.
   When a national instant criminal background check is required pursuant
 to  state  or  federal  law to be conducted through the National Instant
 Criminal Background Check System (NICS) or its successor  in  connection
 with  the  sale  or transfer of a rifle or shotgun to any person, before
 delivering a rifle or shotgun to such person, [either  (a)]  NICS  [has]
 SHALL  HAVE issued a "proceed" response to the seller or transferor[, or
 (b) thirty calendar days shall have elapsed since the date the seller or
 transferor contacted NICS to initiate a national instant criminal  back-
 ground check and NICS has not notified the seller or transferor that the
 transfer of the rifle or shotgun to such person should be denied].
   §  3.  Subdivision  1  of section 400.06 of the penal law, as added by
 chapter 371 of the laws of 2022, is amended to read as follows:
   1. Any dealer in firearms OR FEDERAL  FIREARMS  LICENSEE  that  sells,
 delivers  or otherwise transfers any firearm, RIFLE, SHOTGUN, OR ANTIQUE
 FIREARM shall contact the division of state police to conduct a national
 instant criminal background check pursuant to section two hundred  twen-
 ty-eight of the executive law.
   §  4.  Paragraph  (a) of subdivision 1 of section 228 of the executive
 law, as added by chapter 371 of the laws of 2022, is amended to read  as
 follows:
   (a) The division is hereby authorized and directed to serve as a state
 point  of  contact  for  implementation  of  18 U.S.C. sec. 922 (t), all
 federal regulations and applicable guidelines adopted pursuant  thereto,
 and  the  national  instant  criminal  background  check  system for the
 purchase of firearms, RIFLES, SHOTGUNS, ANTIQUE  FIREARMS,  and  ammuni-
 tion.
 S. 9751                             3
 
   §  5.  The  opening  paragraph  and  paragraph (c) of subdivision 4 of
 section 228 of the executive law, as added by chapter 371 of the laws of
 2022, are amended to read as follows:
   The  superintendent  shall  promulgate a plan to coordinate background
 checks for firearm, RIFLE,  SHOTGUN,  ANTIQUE  FIREARM,  and  ammunition
 purchases  pursuant  to  this section and to require any person, firm or
 corporation that sells, delivers or  otherwise  transfers  any  firearm,
 RIFLE, SHOTGUN, ANTIQUE FIREARM or ammunition to submit a request to the
 division  in  order to complete the background checks in compliance with
 federal and state law, including the  National  Instant  Criminal  Back-
 ground  Check System (NICS), in New York state. Such plan shall include,
 but shall not be limited to, the following features:
   (c) An  automated  phone  system  and  web-based  application  system,
 including  a  toll-free  telephone  number  and/or web-based application
 option for any licensed dealer OR FEDERAL FIREARMS LICENSEE requesting a
 background check in order to  sell,  deliver  or  otherwise  transfer  a
 firearm,  RIFLE,  SHOTGUN, ANTIQUE FIREARM, OR AMMUNITION which shall be
 operational every day that the bureau  is  open  for  business  for  the
 purpose of responding to requests in accordance with this section.
   § 6. Paragraphs i and ii of subdivision 7 of section 228 of the execu-
 tive  law,  as  added by chapter 371 of the laws of 2022, are amended to
 read as follows:
   i. any person, firm or corporation that sells, delivers  or  otherwise
 transfers  firearms,  RIFLES,  OR  SHOTGUNS shall obtain a completed ATF
 4473 form from the potential buyer or transferee including name, date of
 birth, gender, race, social security  number,  or  other  identification
 numbers  of  such potential buyer or transferee and shall have inspected
 proper identification including an identification  containing  a  photo-
 graph of the potential buyer or transferee.
   ii.  it shall be unlawful for any person, in connection with the sale,
 acquisition or attempted  acquisition  of  a  firearm,  RIFLE,  SHOTGUN,
 ANTIQUE  FIREARM,  OR  AMMUNITION from any transferor, to willfully make
 any false, fictitious oral or written statement or to furnish or exhibit
 any false, fictitious, or misrepresented identification that is intended
 or likely to deceive such transferor with respect to any  fact  material
 to  the  lawfulness  of  the  sale or other disposition of such firearm,
 RIFLE, SHOTGUN, ANTIQUE FIREARM, OR AMMUNITION under  federal  or  state
 law.  Any  person who violates the provisions of this subparagraph shall
 be guilty of a class A misdemeanor.
   § 7. Paragraph (c) of subdivision 1 of  section  896  of  the  general
 business  law, as amended by chapter 371 of the laws of 2022, is amended
 to read as follows:
   (c) coordinate with the division of state police to provide access  at
 the  gun  show  to  perform a national instant criminal background check
 prior to any firearm, RIFLE, SHOTGUN, OR ANTIQUE FIREARM sale or  trans-
 fer.  Any  firearm  dealer  OR  FEDERAL FIREARMS LICENSEE licensed under
 federal law who submits a request to the division  of  state  police  to
 perform  a  national  instant criminal background check pursuant to this
 paragraph shall provide the seller or transferor of the  firearm,  rifle
 or  shotgun  with  a  copy  of the United States Department of Treasury,
 Bureau of Alcohol, Tobacco and Firearms Form ATF F 4473 and such  dealer
 OR  LICENSEE  shall  maintain such form and make such form available for
 inspection by law enforcement agencies for a period of ten years  there-
 after.
 S. 9751                             4
 
   §  8.  Subdivision  1  of  section 897 of the general business law, as
 amended by chapter 129 of the laws  of  2019,  is  amended  to  read  as
 follows:
   1. A national instant criminal background check shall be conducted and
 no  person  shall  sell or transfer a firearm, ANTIQUE FIREARM, rifle or
 shotgun at a gun show, except in accordance with the  provisions  of  18
 U.S.C.  922(t),  provided  that  before  delivering  a  firearm, ANTIQUE
 FIREARM, rifle or shotgun to  any  person[,  either  (a)]  the  National
 Instant  Criminal  Background Check System (NICS) or its successor [has]
 SHALL HAVE issued a "proceed" response to the seller or transferor[,  or
 (b) thirty calendar days shall have elapsed since the date the seller or
 transferor  contacted NICS to initiate a national instant criminal back-
 ground check and NICS has not notified the seller or transferor that the
 transfer of the firearm, rifle or  shotgun  to  such  person  should  be
 denied].
   §  9. Subdivisions 1 and 2 of section 898 of the general business law,
 subdivision 1 as amended by chapter 129 of the laws of 2019, and  subdi-
 vision  2  as amended by chapter 371 of the laws of 2022, are amended to
 read as follows:
   1. In addition to any other requirements pursuant to state and federal
 law, all sales, exchanges or disposals of  firearms,  ANTIQUE  FIREARMS,
 rifles  or  shotguns  shall be conducted in accordance with this section
 unless such sale, exchange  or  disposal  is  conducted  by  a  licensed
 importer,  licensed  manufacturer or licensed dealer, as those terms are
 defined in 18 USC §  922,  when  such  sale,  exchange  or  disposal  is
 conducted  pursuant  to  that  person's federal firearms license or such
 sale, exchange or disposal is between members of  an  immediate  family.
 When  a  sale,  exchange or disposal is conducted pursuant to a person's
 federal firearms license, before delivering a firearm, ANTIQUE  FIREARM,
 rifle or shotgun to any person[, either (a)] the National Instant Crimi-
 nal  Background  Check  System  (NICS) or its successor [has] SHALL HAVE
 issued a "proceed" response to the federal firearms  licensee[,  or  (b)
 thirty  calendar  days  shall  have  elapsed  since the date the federal
 firearms licensee contacted NICS to initiate a national instant criminal
 background check and NICS has not notified the federal firearms licensee
 that the transfer of the firearm, rifle or shotgun to such person should
 be denied]. For purposes of this section, "immediate family" shall  mean
 spouses, domestic partners, children and step-children.
   2.  Before  any sale, exchange or disposal pursuant to this article, a
 national instant criminal background check must be completed by a dealer
 who shall submit a request to the division of state police  pursuant  to
 section  two  hundred  twenty-eight of the executive law to conduct such
 check. Before a dealer who has submitted a request to  the  division  of
 state  police  to  conduct  a national instant criminal background check
 delivers a firearm, ANTIQUE FIREARM, rifle or shotgun  to  any  person[,
 either  (a)] NICS shall have issued a "proceed" response[, or (b) thirty
 calendar days shall have elapsed since the date the dealer  submitted  a
 request  to the division of state police to contact the NICS to initiate
 a national instant criminal background check and NICS has  not  notified
 the  division of state police that the transfer of the firearm, rifle or
 shotgun to such person should be denied].
   § 10. This act shall take effect immediately.

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